November 27 , 2023

Will Foreclosure History Repeat Itself?

November 21 , 2023

Rules of Court Bind Even the King's Bench

November 2, 2023

Records and Affidavit of Records

November 2 , 2023

Uncommon Law

October 20 , 2023

Expanding Judicial Review Evidence

June 22, 2023

Competition v. Benefits

June 19, 2023

Clogged Courts

June 12, 2023

Preparing Applications in Uncertain Conditions

May 8, 2023

Competence is a Delicate Flower

March 30 , 2023

Urgent! Very Hard to Meet a Limitation Period

March 13 , 2023

Parties to Planning Appeals

March 7 , 2023

Costs in Family Law Litigation

January 30 , 2023

Dodging Settlement Privilege

January 4 , 2023

Lurking Dangers and Errors

January 3 , 2023

Your Real Goals

December 5 , 2022

Contracts for Higher Costs

November 24 , 2022

Scope of Offers to Settle

October 13 , 2022

Checklist for Cross-Examination

September 16 , 2022

Reviewing Latest Changes

August 22 , 2022

First Steps in Problem Solving

July 28 , 2022

Checklist of Powerful Procedural Principles

March 22 , 2022

Repeating a Cross-Examination Question

January 25 , 2022

Enforcing Land Sales Becomes Easier

January 5 , 2022

Proving a Settlement After a Mediation

November 16, 2021

Types of Injunctions

October 1, 2021

Orders After Litigation is Over

August 11, 2021

Discoverability for Limitation Periods

August 5 , 2021

Releases of Claims

June 7 , 2021

Language Used Still Matters

May 17 , 2021

Serving Uncooperative People

April 15 , 2021

Death and After-Life of Contingency Agreements

February 22 , 2021

Legal Analysis

February 2 , 2021

Costs Clarified at Last

January 4 , 2021


December 10, 2020

Traps and Confusion in Service Times

November 24, 2020

Don't Cut Corners

October 2 , 2020

Consent Orders

August 4 , 2020

Electronic Hearings

July 21, 2020

Ceasing to Act

June 29, 2020

Writing Skills

June 29, 2020

Keeping Up With the Law

June 22, 2020

Assets as a Test for Security for Costs

June 19, 2020

What is This Case About?

June 11, 2020

Cross-Examining Child Witnesses

May 20 , 2020

Formal Offers

May 13 , 2020

Vexatious or Self-Represented Litigants

January 7, 2020

G.S.T. and Costs

December 20 , 2019

Electronically Navigating the

October 7 , 2019

Questioning is a Bad Word

July 29 , 2019

Dismissal for Delay

May 7 , 2019

Rule 4.31 Fallacies

March 18 , 2019

More Dangers in Oral Fee Agreements

February 11 , 2019

Weir-Jones Decisions

January 9 , 2019

Discouraging Settlements

November 30, 2018

European Court Helps You Twice?

November 23 , 2018

Courts Overruling Tribunals

November 16 , 2018

New Evidence on Appeal

October 30 , 2018

Schedule C's Role

July 17 , 2018

Loopholes in Enforcing Settlements

May 7 , 2018

Enforcement of Procedure Rules

April 16, 2018

Limping Lawsuits are Often

April 3 , 2018

Court of Appeal Tips for
Summary Decisions

March 19, 2018

Serious Dangers in Chambers

February 13 , 2018

Court Backlog

December 18 , 2017

Lowering the Status of Courts

September 15 , 2017

Access to Court Decisions

July 4 , 2017

Strictissimi Juris

June 14 , 2017

Why Don't Your Clients Settle?

June 5 , 2017

Gap in Rules About Parties

June 5, 2017

Personal Costs Against

April 26, 2017

Clogged Courts

April 11, 2017

Dismissal for Want of

January 6, 2017

Incomplete Disclosure

December 15, 2016


November 23, 2016

Is Contract Interpretation Law?


Côté’s Commentaries

© J.E. Côté 2016-2023



Odd and dramatic things have happened to the economy, and more may well be on the way. Many people may soon have trouble paying their mortgages, and the companies hired by mortgagees to “insure” payment of those mortgages may have trouble paying too. What will courts and governments do then?

It is useful to know what happened in previous similar situations in the 1930s and early 1980s. History does not always repeat itself, but the groups who try to influence events usually do repeat themselves. Important parts of this history are not written down, or are hard to find. My eminent sources are now dead, so I will repeat things they told me. (And a modern living expert has helped me.)

The early 1930s were notoriously hard times. Few people realize that for Alberta, the 1920s were sometimes and in some places worse. Current Alberta legislation which often confines the mortgagee to getting the land, and saves the borrower from a deficiency judgment, goes back only to 1939. Why? And still more curiously, the Alberta economy was much better by then. What happened in the meantime?

Mr. Justice Morrow’s father was also a lawyer, and acted in the 1930s for several Alberta individuals who had lent considerable sums on land mortgages. The Alberta government made many different attempts to bar creditors’ recourse to the Alberta courts, many of which ultimately were held unconstitutional. But one thing which lasted for years was a tribunal of lay persons called the Debt Adjustment Board, and Alberta legislation requiring that Board’s written permission, in order to start a mortgage foreclosure suit (See the footnote). Mr. Morrow Sr. was usually dealing with farm mortgagors.

The great majority of debtors were honest, and embarrassed that they were behind in their payments, but they just lacked money. The big insurance companies in central Canada, and similar lenders, tended to be inflexible, and would not negotiate, even when the mortgage’s interest rate was 8% and so about 5% above what Dominion government bonds then paid. Mr. Morrow Sr. would go out to the farm and talk to the mortgagor couple. His son William Jr. (later the judge) was then a high-school or university student. While his father talked to the farm couple in the kitchen, young Bill would look around the farm yard. Usually what the farmer told Mr. Morrow Sr. was confirmed by what young Bill saw on the premises. In such cases, Morrow Sr. would negotiate something with the mortgagors: more time, lower interest, crediting partial payments against principal, not against interest, or the like. So Morrow Sr. got payments toward the mortgages.

But occasionally young Bill would report to his father having seen sources of income which the obstinate farmer denied having. Then Morrow Sr. would appear before the Debt Adjustment Board. Big Toronto and Montreal lenders would also apply, in front of a gallery of watching farmers. The tribunal orally rejected all their applications. Then Morrow Sr. applied on behalf of one of his private Edmonton lender clients (one a well-known physician), and would tell about the concealed assets. The tribunal would say that its decision was reserved. On Monday morning, in the law office’s mail would be a signed small printed form, with no covering letter. It was the tribunal's permit to sue.

It was likely that this legislation about the Board was also unconstitutional. But Dean Wilbur Bowker told me that for years, the big lenders refused to challenge this statute in court. Finally, about 1938 an Edmonton man had bought a downtown house with a small down payment, the rest of the price being payable over time under a formal Agreement for Sale. He ran the house as a rooming house, did well, collected a considerable stream of cash, and never paid a dime under the Agreement for Sale. Milner Steer issued a statement of claim for the vendor, raising all the constitutional points. The Alberta government quickly introduced a Bill for the modern legislation we now have, under which the courts decide what relief the debtor will get, and usually preventing any personal liability for a deficiency. (The Bill passed in 1939.) I will not speculate why the government waited that long, though I can say the Edmonton economy was in far better shape by 1938.

But what was the effect of all this? In 1938 or 1939 my father had a vacant lot and wanted to get a mortgage to build a modest home. He consulted one of Edmonton’s best- known financiers, who told him that given Social Credit legislation, no one would lend on mortgage in Alberta. Period. (In 1939 it became possible to get a very small loan from a bank, guaranteed by the federal government, but the loan had to be proven to be strictly for improving an existing lived-in home, not building a new one.)

In 1982 and 1983, after over 40 years of prosperity, the Alberta economy and land prices both sank. Then quite a number of devious speculators bought land with a big mortgage but no personal liability, and squeezed every penny of cash out of the land that they could. Mortgage lenders and those who insured them on mortgages suffered badly. One mortgage insurer refused to cover any new Alberta mortgages. This was a crisis, reported in many media stories, based on 29 different interviews with a representative of the Mortgage Loans Association.

Maybe the moral is that in the short run, it is possible to square the circle. But not in the long run.

– Hon. J.E. Côté

Footnote: The Debt Adjustment Board went back at least to 1931, when the government was United Farmers, not Social Credit. Its Act was amended and consolidated several times, including 1933 c. 13 and 1936 2d c. 3, and the Debt Adjustment Act 1937.

The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

The Hon. Jean Côté retired from the Court of Appeal of Alberta and would be willing to act as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.

He may be contacted through Juriliber at:

email: or phone 780-424-5345.