[1]               Ms. Darby is the Defendant in a foreclosure action. She seeks costs against the Plaintiff, Mr. Baxter, based on what she says was inappropriate conduct in the handling of the foreclosure.

[2]        Darby says that the foreclosure should have been commenced in the Judicial District of Edmonton where the mortgaged land is located, and where she resides, rather than in the Judicial District of Calgary. Baxter resides in British Columbia and he could have as easily commenced proceedings in Edmonton as in Calgary. While I sympathize with Darby, Baxter was entitled to commence the foreclosure in Calgary. The mortgage in question contains clause 40 stating that “... the Mortgagee shall be entitled, at its sole option and discretion, to commence foreclosure proceedings under the Mortgage in any Judicial District the Mortgagee chooses...”

[3]        This type of clause is authorized by Rule 6.1(3)(c) of the Rules of Court, which states than an action may be commenced in a judicial district other than that indicated under Rule 6.3(1) (which in this case would have been Edmonton) if “all the parties to the action so agree in writing”. Clause 40 is such an agreement in writing. As a result I decline to award any costs to Darby arising from the fact that this Action was commenced in the Judicial District of Calgary.

[4]        Baxter commenced this Action on April 28, 2009. Darby filed a Statement of Defence on May 12, 2009.

[5]        In her Statement of Defence Darby pleads a substantive defence. She alleges that she had an arrangement allowing for late payment, and that the foreclosure was commenced prior to the payment date arriving. She also states “A trial in Calgary would create further hardship for the Defendant. The Defendant prays these matters could take place in Edmonton”.

[6]        On June 11, 2009 Baxter’s counsel, Harold Vickers, applied for an Order Nisi in Calgary. Mr. Vickers did not advise the court about Darby’s Statement of Defence, nor did the application comply with the rules for summary judgment (which was necessary due to Darby’s Statement of Defence). I presume that Mr. Vickers, through oversight, did not notice the Statement of Defence on his file. In any event, an Order Nisi was granted when it should not have been.

[7]        When Mr. Vickers’ office prepared the Order Nisi they inserted a provision that the redemption period would expire on June 20, 2009, whereas the date actually stated in court was June 30, 2009. This again shows carelessness by Mr. Vickers or his office. It is interesting to note that, when the Order Nisi was signed, the Master in Chambers added a provision that “This action is forthwith transferred to the Judicial District of Edmonton”. Under Rule 12 the court has the discretion to transfer an action to another judicial district, notwithstanding a clause in a mortgage allowing a mortgagee to commence proceedings where the mortgagee chooses.

[8]        It is a fair inference that, if Darby’s Statement of Defence had been brought to the Master’s attention on June 11, 2009, the Order Nisi application would never have been heard in Calgary, but instead would have been heard in Edmonton.

[9]        When the foreclosure file was transferred to Edmonton, matters were promptly dealt with and corrected by Baxter’s Edmonton counsel, who negotiated a consent Final Order along with a ‘stay’ provision, giving Darby an opportunity to sell the property on a voluntary basis. Baxter’s Edmonton counsel also indicated to the Court that Baxter would not be seeking legal costs (in the event of redemption) for the steps taken between the issuance of the Statement of Claim and the negotiation of the Consent Final Order.

[10]      I am satisfied that Darby incurred increased legal fees as a result of having to deal with an entered Order Nisi, as opposed to the fees she would have occurred if her Statement of Defence had been brought to the attention of the court on June 11, 2009. As a result I am awarding Darby costs in the amount of $3,000 payable forthwith and in any event of the cause. I direct that such costs be paid prior to Baxter sending the Consent Final Order for registration at Land Titles.

[11]      In my opinion Mr. Vickers’ failure to notify the court of the existence of the filed Statement of Defence of Darby, his failure to comply with Rule 159 for a summary judgment application, and his insertion of an inaccurate redemption date in the Order Nisi, are matters which have interfered with the proper and efficient administration of justice. No appropriate excuse or explanation has been offered for this failure.

[12]      Masters in Chambers rely on counsel to make appropriate disclosure to the court, to comply with the rules, and to prepare orders which reflect the court’s ruling. Numerous applications are made every day in chambers, and if the court was required to scrutinize in detail all the pleadings for each application, then additional and unnecessary time and expense would be incurred by all litigants. Mr. Vickers’ failure to make appropriate disclosure, his failure to comply with Rule 159, and his preparation of an inaccurate order, even where caused by carelessness, are deserving of sanction. As a result, pursuant to Rule 599.1, I direct costs to be paid by Mr. Vickers to the Clerk of the Court in the amount of $1,000.00. Such penalty shall be paid within 30 days of the entry of the order which results from these reasons.