244 Mortgagee’s Refusal Or Neglect To Give Discharge

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Statement or Discharge from Mortgagee

See also s. 33 of the Property Law Act, which requires a mortgagee to provide to a mortgagor, upon written request, a statement of various amounts owing under a mortgage or, if the mortgagor is entitled to a discharge, a discharge registrable under the Land Title Act.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 2, §13:166.

CASE LAW

Entitlement to Discharge

The petitioner and the respondent negotiated a severance package which included an agreement that the respondent discharge a mortgage held by the respondent on the petitioner’s home. The discharge was executed by the respondent and sent to the petitioner’s solicitors. The discharge was then returned to the respondent, at the respondent’s request, on the ground that the respondent had, in the meantime, discovered several things which led him to believe that the petitioner might have provided just cause for dismissal. The petitioner was entitled to succeed in the application for discharge on the law relating to unilateral mistake (Holmes v. Pacific National Financial Corporation, 1991 CanLII 734 (BC SC) (Chambers)).

Refusal to Discharge

A mortgagor applied to court under s. 244 of the Act for an order discharging a mortgage. The mortgagor offered to pay to the mortgagee a sum owing under the mortgage into court pending conclusion of arbitration proceedings between the mortgagor and the mortgagee. The court held that the offer was not a tender of all money due and owing by the mortgagor to the mortgagee within the meaning of s. 244, as funds paid into court would not be paid or available to the mortgagee under the terms of the mortgage. In dismissing the mortgagor’s application, the court held that the mortgagee was not without just cause in refusing to provide the discharge (401863 Alberta Ltd. v. Lake Okanagan Resort (2001) Ltd., 2008 BCSC 959).

Entitlement to Maintain Security

See the annotation for Metropolitan Trust Co. of Canada v. Dancorp Developments Ltd., 1993 CanLII 980 (BC SC) under s. 241 of this Act. On appeal, the court noted that before the ultimate determination of the rights and obligations of the parties, the mortgagee is entitled to maintain its security.

Forgery and Fraud Allegations Not Within Sections 243 and 244 Jurisdiction; Certification of Witnessing Officers Prima Facie Proof of Authenticity

In 1233543 B.C. Ltd. v. Cao, 2022 BCCA 343, the court allowed the numbered company’s appeal from an order granting the respondent’s petition, brought pursuant to ss. 243 and 244 of the Land Title Act, for orders cancelling a power of attorney, discharging a mortgage, and cancelling an assignment of rents, which the appellant had registered against the respondent’s property in Coquitlam.

The respondent had alleged before the chambers judge that the power of attorney and mortgage documents had been forged and obtained by fraud. The appellate court held that ss. 243 and 244 did not provide the jurisdiction to make the impugned order. Those sections applied to circumstances involving valid mortgages, and not to allegations of forgery or fraud.

While it was not necessary to resolve the appeal, the court held that the judge below had erred in not considering the effect of s. 43 of the Land Title Act and related sections concerning powers of attorney on the evidence of the officers who had witnessed the signatures on the power of attorney and mortgage documents. The certification of the respective officers amounted to prima facie proof of the authenticity of the documents.