Foreclosure Practice 2021

Course Chairs
Andrew Bury, QC — Gowling WLG (Canada) LLP,  Vancouver
Lindsay D. Goldberg — Fulton & Company Law Corporation, Vancouver

About the Course Chairs
Andrew Bury, QC is a partner in Gowling WLG's Vancouver office. His practice is focused on loan security enforcement and related collection, insolvency, and real estate matters. He acts for banks, credit unions, trust companies, mortgage investment corporations and other institutional, private, and government lenders.

Andrew is regarded as leading counsel in his field and has been interviewed and quoted in the Globe and Mail, the Financial Post, Maclean's magazine, BC Business magazine, as well as on Global TV.

Andrew is a graduate of UBC (B.Com., 1977 and JD, 1978) and the London School of Economics (LLM, 1981). He is a frequent writer and lecturer on loan security enforcement and related matters for continuing legal education programs and other institutions and groups.

In 2015, Andrew was designated as Queen's Counsel in BC.

Lindsay Goldberg earned his law degree from the University of Victoria in 1985 and completed his articles with a Victoria firm, working for a very busy foreclosure practitioner there for several years after his call to the bar before moving to Vancouver, where he's practiced since.

Lindsay has kept his practice focused primarily on retail collections and mortgage enforcement for his entire 35-year career. He heads up Fulton's Vancouver office where he represents some of Canada's largest institutional lenders assisting with their retail mortgage default portfolio management.

Lindsay has participated in the creation and development of a web-based portal used by one of Canada's largest banks and others of his other institutional mortgage enforcement clients.

In his spare time, Lindsay plays trumpet and before COVID-19 shut down musical theatre in Vancouver, he performed in pit bands for a few Vancouver productions, including shows with Theatre Under the Stars.

Faculty
Master Sandra L. Dick — Supreme Court of BC, Nanaimo
Master Kimberley A. Robertson — Supreme Court of BC, New Westminster
Robert J. Ellis — Richards Buell Sutton LLP, Vancouver
Peter J. Reardon — Nathanson Schachter & Thompson LLP, Vancouver
Randie Wilson — Randie Wilson Law Corporation, Vancouver

Course Materials Contributor
Kayla K. Strong — Nathanson Schachter & Thompson LLP, Vancouver

Click here for full faculty bios

Welcome and Land Acknowledgement (9:00 – 9:10)

Andrew Bury, QC — Gowling WLG (Canada) LLP,  Vancouver
Lindsay D. Goldberg — Fulton & Company Law Corporation, Vancouver

Procedural Overview (9:10 – 10:10)

• demands for payment
• where to commence a foreclosure proceeding—local venue
• who to name as respondents in a foreclosure proceeding
• what relief to seek in a foreclosure proceeding
• giving notice of hearings
• dealing with self-represented litigants

Andrew Bury, QC — Gowling WLG (Canada) LLP,  Vancouver

Questions & Discussion (10:10 – 10:20)

BREAK (10:20 – 10:35)

Order Nisi and Order Absolute (10:35 – 11:05)

• marshalling evidence
• what relief to seek at the hearing
• self-represented litigants
• your duty to the court
• options available to the court
• orders absolute
• manufactured homes

Lindsay D. Goldberg — Fulton & Company Law Corporation, Vancouver

Order for Conduct of Sale and Order Approving Sale (11:05 – 11:35)

• jurisdiction
• who can apply for conduct or approval of sale, and when?
• listing the property
• approval of sales
• one-step process vs. two-step process, with competing bids
• COVID-19 procedures
• varying or appealing an Order approving a sale

Robert J. Ellis — Richards Buell Sutton LLP, Vancouver

Questions & Discussion (11:35 – 11:45)

LUNCH (11:45 – 12:15)

Mortgage Priorities (12:15 – 12:45)

• mortgages
• tacking—s. 28 Property Law Act
• strata corporations
• builders liens  
• judgments
• federal government, including deemed trusts
• provincial government
• receivers 

Peter J. Reardon — Nathanson Schachter & Thompson LLP, Vancouver

Costs and Protective Disbursements (12:45 – 1:15)

Costs

• • background
  • the rule
  • the exceptions
  • assessment

Protective Disbursements

• • background/definition
  • recoverability

Randie Wilson — Randie Wilson Law Corporation, Vancouver

Questions & Discussion (1:15 – 1:25)

BREAK (1:25 – 1:40)

View from the Bench (1:40 – 2:10)

• foreclosure Notices of Application—Parts 2 and 3 (Factual and Legal Bases) what to include; what not to include
• foreclosure affidavit content
• application records
• dealing with lay litigants (before, during, and after chambers)
• communications with Court Registry staff
• good, bad and ugly foreclosure counsel work
• procedures and tips during COVID-19: applications by teleconference or MS Teams, sealed bids, draft orders, etc.

Master Sandra L. Dick — Supreme Court of BC, Nanaimo
Master Kimberley A. Robertson — Supreme Court of BC, New Westminster

Questions & Discussion (2:10 – 2:20)

BREAK (2:20 – 2:35)

Hot Topics Roundtable (2:35 – 3:15)

• s. 116(5) of the ITA—withholding tax, on sales of properties owned by non-residents (Mao v. Liu, etc.)
• Leatherman and Rosas v. Toca; how Order in Council 655/2020 affects these limitation periods
• a second mortgagee applying for conduct of sale in a first mortgagee's foreclosure proceeding and the timing of the second mortgagee's entitlement
• Toronto-Dominion Bank v. Canada, 2020 FCA 80 and Excise Tax Act, s. 222
• is a mortgagee entitled to an order absolute of foreclosure, as of right, once the redemption period expires?

Master Sandra L. Dick — Supreme Court of BC, Nanaimo
Master Kimberley A. Robertson — Supreme Court of BC, New Westminster
Andrew Bury, QC — Gowling WLG (Canada) LLP,  Vancouver
Robert J. Ellis — Richards Buell Sutton LLP, Vancouver
Lindsay D. Goldberg — Fulton & Company Law Corporation, Vancouver
Peter J. Reardon — Nathanson Schachter & Thompson LLP, Vancouver
Randie Wilson — Randie Wilson Law Corporation, Vancouver