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In This Volume

  • 244 (1) If a mortgagee, without just cause, refuses or neglects to give the mortgagor or owner of the equity of redemption, herein referred to as the “owner”, a discharge of the mortgage, despite the tender or attempted tender of all money due and owing by the owner to the mortgagee, the owner may make an application to the Supreme Court in the same manner as provided in section 243, and the court has all the power conferred on that court by section 243.
  • (2) Section 243(1)(a) and (b) does not apply to this section.

1979-219-223.

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, para. 543.

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.