Starke Capital: ATB says the Plaza 14 caveat was vested off in December

Two numbers on the certificate of title that Unit 28 of Condominium Plan 8111330 carried before its sale hold most of ATB Financial's case. Instrument 161 122 251 is ATB's collateral mortgage for $8,800,000, registered on May 26, 2016. Instrument 231 312 319 is the caveat for condominium fees that Condominium Corporation No. 8111330, the corporation for the building known as Plaza 14, registered against the commercial unit on October 12, 2023, per the Bench Brief of ATB Financial, Sept. 24, 2026, paras. 10(c), 19, 41 and the Approval and Vesting Order, Dec. 5, 2025, Sched. "C". Section 14(3) of the Land Titles Act makes the serial number assigned to an instrument or caveat decide priority "between mortgagees, transferees and others," and s. 104(1) keeps a mortgage for a specific principal sum in that place for every advance under it, including advances made after a later caveat. Section 39.2(8) of the Condominium Property Act gives a condominium corporation's charge "the same priority as a mortgage under the Land Titles Act." From those three provisions ATB concludes that it "holds the first-ranking security interest over the Lands and all Property," per the Bench Brief of ATB Financial, Sept. 24, 2026, paras. 2, 35–36, 40, 44.

ATB filed the brief on September 24, 2026, with a book of authorities of five statutes and thirteen decisions, per the Book of Authorities of ATB Financial, Sept. 24, 2026, p. 2. It answers the corporation's brief, reported here on September 22, which asks that its $239,717.62 claim be declared ahead of ATB on the proceeds of the unit's sale; ATB's own brief is filed on the receiver's application for a declaration on that priority, which Justice C.D. Simard is to hear at 2:00 p.m. on October 2, 2026. The corporation's position, the brief says, "requires the Court to read in additional language not contained in the CPA," per the Bench Brief of ATB Financial, Sept. 24, 2026, p. 1 and paras. 1, 3.

Four subsections, and the one that speaks to priority

ATB's reading of the condominium statute starts from Justice Ritter in Condominium Plan No. 8222909 v. Francis, 2003 ABCA 234, a challenge to a method of collecting condominium fees that did not comply with the Act: "It is not the role of the courts to enlarge what the legislature has chosen to provide for whenever a possible inequity may occur as a result of the enforcement of the plain meaning of the legislative provision," per the Bench Brief of ATB Financial, Sept. 24, 2026, para. 46. The brief then takes the four subsections of s. 39.2 the corporation relies on, one at a time. The mortgagee's right under subsection (3) to pay a delinquent owner's contributions and add them to the mortgage debt is, on ATB's reading, "a right or option which may (or may not) be exercised by the mortgagee, in their discretion," and no acknowledgment that what it pays ranks first; insurance costs, the brief observes, are an unsecured claim. Subsections (6) and (7) "create the charge; not any special priority." Priority, in ATB's account, is addressed only in (8), which sends the question back to the Land Titles Act. As for (11), which keeps a corporation's caveat on title after a foreclosure, an action for specific performance or a tax recovery proceeding until the amount owing is paid, it "does not effect or refer to priority": "Nothing in s. 39.2(11) would prevent a mortgagee from receiving payments in priority to the caveat. The only matter s. 39.2(11) addresses is vesting," per the Bench Brief of ATB Financial, Sept. 24, 2026, para. 48.

The statutes for builders' liens and municipal taxes, the brief notes, each speak expressly to their interest's priority against a registered mortgage, in s. 11 of the Prompt Payment and Construction Lien Act and s. 348 of the Municipal Government Act; the Condominium Property Act gives a corporation's caveat no such specified priority, per the Bench Brief of ATB Financial, Sept. 24, 2026, para. 49. That subsection (11) names neither receiverships nor sales in insolvency proceedings, which carry their own statutory and common law tests for vesting, "should not be assumed to be an oversight"; courts presume that every word of a statute "is intended to have a meaning and is not merely surplusage," per the Bench Brief of ATB Financial, Sept. 24, 2026, para. 50, citing R v HB, 2022 ABCA 240. A footnote suggests why the legislature may have left insolvency out: such proceedings deal with collective problems of the kind a corporation faces in collecting contributions, need flexibility over sales and the distribution of proceeds, and suit an operating business better than "piecemeal enforcement by a mortgagee acting solely through a redemption order, preservation order, or similar foreclosure mechanism," per the Bench Brief of ATB Financial, Sept. 24, 2026, para. 68, n. 2.

ATB distinguishes the two decisions the corporation relied on by their facts. Tutt v The Owners: Condominium Plan No. 7822572, 2020 ABQB 213, was an appeal from a costs decision in a foreclosure that a condominium corporation had, Justice Graesser found, begun unreasonably, since nothing was owing to it; no priority was in dispute, and his description of an "exception to indefeasibility" was, ATB says, obiter. Condo Plan v Owners and Mortgagees, 2025 ABKB 43, concerned the wind-up of a condominium corporation after a fire, under bylaws that did not "address the situation that actually occurred," with no receivership and no building left to lease, per the Bench Brief of ATB Financial, Sept. 24, 2026, para. 52.

The order of December 5

ATB's second line of argument runs through Justice R.W. Armstrong's approval and vesting order of December 5, 2025, which vested the unit in the purchaser free of all caveats, mortgages and charges and put the net proceeds "in the place and stead" of the property, with claims against them to rank "with the same priority as they had with respect to the Purchased Assets immediately prior to the sale," per the Approval and Vesting Order, Dec. 5, 2025, paras. 3, 8. Immediately before the sale, the brief says, priority turned on the timing of registration, per the Bench Brief of ATB Financial, Sept. 24, 2026, paras. 42–43. It says the corporation was served with ATB's application to appoint the receiver in January 2024 and with the receiver's application for the vesting order, and opposed neither. Any argument for keeping the caveat on title, in ATB's view, belonged at those hearings; the order is now "a final, entered order," and "The anti-vesting provisions under s. 39.2(11) have no room for application, in the circumstances," per the Bench Brief of ATB Financial, Sept. 24, 2026, paras. 23, 32, 53, 57.