Mortgage—mistaken discharge—unjust enrichment

Anna Niemira owns land in Toronto. She granted a first mortgage to the Bank of Nova Scotia (BNS) and a second mortgage to Fred Rankel. Niemira attempted to refinance her debt with BNS, but their negotiations failed. BNS, however, mistakenly discharged its mortgage and thereby lost priority to Rankel. Once the error was discovered, BNS applied to have its mortgage reinstated with first priority.

Held: The Land Titles Act RSO 1990, c L5, s.160 states that, “if a person is aggrieved by an entry made [to the land register]”, that person “may apply to the court for an order that the register be rectified, and the court … may, if satisfied of the justice of the case, make an order for the rectification of the register”. In addition, Central Guaranty Trust Co v Dixdale Mortgage Investment Corp (1994) 21 DLR (4th) 53 (Ont CA); [1995] RLR §114 held that, if a party acquires priority as a result of an error in the discharge of documents, “Equity … will treat the title as if the error had not occurred” (at [12]) if it can do so without creating prejudice. In this instance, “it would be unjust for BNS to lose its priority due to an error which has caused no prejudice” (at [14]). The register will be rectified to reinstate BNS’s mortgage with first priority.

Contract—unjust enrichment—corresponding deprivation—indirect transfer—punitive damages

Canadian law restricts immigration consulting to practising lawyers and registered consultants. At the same time, both the federal and provincial governments operated immigration schemes that paid immigration consultants who put forward successful immigration applicants. Since the defendant company was in Beijing, it sought to participate in those schemes through the services of Canadian lawyers. It entered into a contract