Executive Summary: Key Legal and Evidentiary Issues

• The Respondents challenged an order nisi due to improper service of a critical affidavit.

• Failure to serve the Estrada affidavit, containing appraisal evidence, materially affected the fairness of the hearing.

• Petitioner's counsel misrepresented property valuation using outdated figures during a brief ex parte hearing.

• The court applied the Miracle Feeds test to assess whether to set aside the order.

• Respondents acted promptly and provided evidence of a potentially significant equity position in the property.

• The judge concluded that allowing the order to stand would constitute a miscarriage of justice.

Facts and outcome of the case

This case arose from a foreclosure proceeding involving a development property located at 11092–248 Street in Maple Ridge, British Columbia. The Petitioner, Guards Capital Corp., had obtained an order nisi on May 15, 2025, granting it conduct of sale and setting a one-month redemption period. The Respondents—1220740 BC Ltd., Davinder Grewal, Talya Grewal, Jugraj Singh Barring, Jaskaran Singh Barring, and the property’s occupants—applied to have that order set aside or varied, alleging procedural irregularities and an unfair hearing.

The controversy centered on the Petitioner’s failure to serve a key affidavit—sworn by Alyssa Estrada and containing appraisal evidence—on the Respondents. That affidavit was relied on by the Petitioner at the May 15 hearing, which the Respondents’ counsel did not attend due to what they later described as an inadvertent calendaring error. At that hearing, the Associate Judge granted the order nisi, relying on the improperly served affidavit and inaccurate valuation representations.

Justice Underhill held that the procedural default was significant. Although Rule 22-7(2)(b) allows orders to be set aside for failures to comply with court rules, the judge based the ruling primarily on Rule 22-1(3), which gives the court discretion to reconsider orders where a party did not attend due to no willful default. The court found that the Respondents had acted quickly, had not deliberately missed the hearing, and presented a potentially meritorious issue—namely, whether the redemption period was unjustifiably shortened based on questionable appraisal evidence.

In weighing the equities, Justice Underhill found no justification to let the order nisi stand. He accepted that there may be equity in the property and that the prior hearing’s outcome was potentially prejudicial due to the service failure and counsel’s absence. The Respondents’ evidence, including a 2024 appraisal valuing the property at $14 million, contrasted sharply with the Petitioner’s position and merited investigation.

As a result, the court set aside the order nisi and awarded the Respondents their costs at Scale B. Justice Underhill noted that the Petitioner’s conduct—particularly its shifting positions and failure to support its claims with evidence—justified the award of costs against it. The matter concluded with the court reserving the right to hear further submissions on costs if necessary.