Case: The Owners: Condominium Plan No 002 1156 (Castledowns Pointe) v. The Bank of Nova Scotia, 2026 ABCA 28 (CanLII)
Keywords: condominiums; mootness; s. 61(3) of the Condominium Property Act, RSA 2000, c C-22
Synopsis:
A residential condominium building, Castledowns Pointe, Alberta, is damaged by fire in March, 2023. Assessing the fire damage, engineers discover pre-existing structural issues. The City of Edmonton directs that the building be vacated. The building is never repaired. (See para. 3).
Castledowns Pointe files an originating application seeking “to approve the sale of the building and lands, distribution of those sale proceeds, and the ultimate dissolution or termination of the condominium corporation” and a further application seeking “an order approving and accepting an offer to purchase the lands”. (See para. 4).
The Respondent mortgagees, Bank of Nova Scotia and Scotia Mortgage Corporation, Toronto-Dominion Bank, Bank of Montreal, and Royal Bank of Canada, oppose provisions in the ensuing order for the payment of $230,286.04 in legal fees and other expenses from the proceeds. (See paras. 5-8).
The Respondents appeal the ensuing order – called the “2024 Order” in the decision – on the basis that the Chambers Judge “misinterpreted the Court’s discretion to order certain payments on termination of a condominium pursuant to s 61(3) of the Condominium Property Act, RSA 2000, c C-22, and that the impugned provisions of the 2024 Order improperly allowed the unsecured debts of the condominium corporation to be paid in priority to the secured interests of the mortgagees”. (See para. 6).
Importantly, however, the sale does not proceed. This renders the Respondents’ appeal “moot” (i.e., “[t]he parties agree that the tangible and concrete dispute over the 2024 Order disappeared when the underlying offer to purchase fell through and the appeals are therefore moot”). (See paras. 7, 11). Thereafter, the Respondents appeal a subsequent order are made with reasons reflecting “the intention of the Act which is that the Corporation’s expenses be paid in priority to owners and mortgagees”. (See para. 8).
The Applicants seek to have the Respondents’ appeal regarding the 2024 Order dismissed as moot. The Court of Appeal (Feehan, Friesen, and Shaner JJ.A.) grants the Applicants’ application. (See paras. 1-2).
Importance:
The Court of Appeal helpfully summarized the test for exercising discretion to hear an appeal despite its “mootness” (i.e., the absence of a live controversy between the parties). Citing Borowski v. Canada (Attorney General), 1989 CanLII 123, CM v. Alberta, 2024 ABCA 136, and Conifer Energy Inc v. Razor Energy Corp, 2025 ABCA 14, the Court identified the following relevant factors:
- the presence of an adversarial context;
- the concern for judicial economy; and
- the court’s proper law-making function. (See para. 12).
Regarding the first factor, the Court of Appeal agreed with the Respondents that, in the circumstances, there was an adversarial context because:
- the parties have already filed their facta;
- allowing the moot appeals to proceed would contribute to the Court making a “fully informed decision on the merits”; and
- litigation over priority issues is ongoing in the Court below. (See para. 13).
However, regarding the balance of the mootness factors, the Court of Appeal found these weighed in favour of dismissal – that the Respondents did not illustrate “sufficient special circumstances to justify exercising the Court’s discretion”. (See para. 18).
The Court of Appeal acknowledged that courts are “more willing to hear cases where resolving the legal issues will have “some practical effect on the rights of the parties”. However, the Court was persuaded by the argument that an appeal of the 2024 Order would be “an unnecessary duplication of effort” because the Respondents raised “precisely the same issue” in their subsequent appeal. (See paras. 14-15).
Moreover, duplication of the central issue ‘undercut’ the Respondents’ argument that the issues raised were “evasive of review” because “[a]ssuming, but without deciding, that these issues are ordinarily evasive of review, here, there is currently an ongoing appeal which will address essentially the same issue, but in the context of a live controversy.” (See para. 16).
Finally, although the Court of Appeal agreed that it would be appropriate to provide an interpretation of s. 61(3) of the Condominium Property Act, it ultimately decided that “[c]larity and predictability” would be achieved through the hearing of the Respondents’ other appeal. (See para. 17).
Counsel for the Applicant, The Owners: Condominium Plan No. 002 1156 o/a Castledowns Pointe: Melissa Stappler and Hugh Willis (Willis Law, Edmonton)
Counsel for the Respondent, The Bank of Nova Scotia and Scotia Mortgage Corporation: Gil Miciak and Andrea Willey (Duncan Craig LLP, Edmonton)
Counsel for the Respondents, Toronto-Dominion Bank and Bank of Montreal: C.J. Mohr and A. Coleman (no appearance)
Counsel for the Respondent, Royal Bank of Canada: S. Chau
Counsel for the Respondents, AST Trust Company (Canada) and Computershare Trust Company of Canada: T.J. Bond (no appearance)
Counsel for the Respondent ATB Financial (no appearance)
Respondent Atco Gas and Pipelines Ltd. (no appearance)
Respondent Canada Mortgage and Housing Corporation (no appearance)
Counsel for the Respondent Canadian Imperial Bank of Commerce CIBC Mortgages Inc.: S.J. Weatherill (no appearance)
Counsel for the Respondent, City of Edmonton: C.J. Ashmore (no appearance)
Counsel for the Respondent Computershare Trust Company of Canada c/o CMLS Financial Ltd. (no appearance)