Executive Summary: Key Legal and Evidentiary Issues

• The appellants challenged foreclosure proceedings and subsequent possession orders, alleging procedural irregularities and breaches of statutory requirements.

• Attempts to restore dismissed appeals under Rule 14.47 were rejected, as this rule does not apply to appeals already decided on their merits.

• Allegations of improper document authentication and procedural defects were found to have no legal basis or supporting authority.

• The appellants’ arguments regarding the need for “wet ink” signatures, original promissory notes, and strict adherence to form requirements were dismissed as pseudolegal and without merit.

• The Court confirmed that foreclosure and possession orders were valid, and that enforcement actions by bailiffs and police were properly authorized.

• Both appeals were dismissed, with costs awarded to the respondent, and no compensatory or other relief granted to the appellants.

Background and facts

These proceedings arose from the foreclosure of the residence of Najeeb Rafic Manah and Kristin Renee Manah by The Toronto Dominion Bank. After the statement of claim for foreclosure was issued in May 2022, the appellants were noted in default. A redemption order was granted on September 20, 2022. Following expiry of the redemption period, the respondent attempted to list the property for sale through the judicial process. The appellants resisted the foreclosure proceedings, refused to cooperate with the judicial listing, and did not comply with orders for vacant possession. The respondent eventually obtained possession of the property on May 31, 2024, through the intervention of bailiffs and the Edmonton Police Service. The appellants unlawfully re-entered the residence and were again evicted on July 4, 2024.

The appellants filed two appeals: one from an order dated June 27, 2024 (#2403-0160AC), and another from an order dated December 18, 2024 (#2503-0005AC). The appeals were argued together.

Arguments and procedural issues

The first appealed order arose from an application by the appellants on June 21, 2024, which complained about procedural irregularities, sought “proof of debt” by affidavit, and an immediate return of possession of the residence. The chambers judge ordered the respondent to provide by affidavit a statement of the amount owing under the mortgage, which was filed on July 5, 2024, and otherwise dismissed the application.

The second appealed order arose from an application filed by the appellants on December 6, 2024, seeking an immediate stay of proceedings and return of the residence, a “point by point rebuttal” of issues raised in affidavits, and other relief. The chambers judge dismissed this application.

The appellants argued that the chambers judges did not act as neutral referees, that the form of the orders was irregular (including not printing the judge’s name next to the signature), and that the respondent’s affidavits were deficient. They also argued that the Applications Judge exceeded jurisdiction in granting a warrant for forcible entry, that enforcement procedures were not followed, and that there were breaches of the Charter, Bill of Rights, and the UN Convention on the Rights of the Child. They denied being vexatious litigants.

The Court found no merit in these arguments. It explained that documents filed in the trial court, including affidavits and pleadings, are part of the appeal record and do not need to be re-sworn. The Court dismissed the appellants’ insistence on “wet ink” signatures, original promissory notes, and strict formal proof as pseudolegal and unsupported. There was no evidence of procedural unfairness or bias, and the foreclosure process and enforcement actions were conducted in accordance with Alberta law and court rules. The Court also found that the appellants’ arguments about the need for a writ of enforcement and other procedures were incorrect, as the orders for possession were valid and enforceable.

Restoration application and administrative review

After the appeals were dismissed, the appellants attempted to file an application under Rule 14.47 to “restore” the two appeals, citing procedural irregularities and issues with document authentication. The Case Management Officer rejected the application, stating that Rule 14.47 only applies to appeals dismissed for procedural reasons, not those decided on their merits. The appellants appealed this ruling to a judge under Rule 14.36(3). The reviewing judge upheld the Case Management Officer’s decision, finding no error and confirming that once the formal judgment of the Court is entered, the Court is functus officio and the matter is concluded. The Court emphasized that its procedures are governed by its own rules, not by standards set by litigants or external authorities.

Outcome

Both appeals were dismissed. The application to restore the appeals was also dismissed. The Court found no reviewable error in the orders under appeal or in the administrative handling of the restoration application. The Toronto Dominion Bank was entitled to costs on a solicitor and client basis, as provided for in the mortgage covenant. No compensatory damages or other relief were granted to the appellants. No exact amount awarded was specified in the decisions, but the respondent was entitled to costs.