Court File and Parties

COURT FILE NO.: CV-21-00001216 DATE: 20220302 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Royal Bank of Canada, Plaintiff AND: Shara Shawesh, Defendant

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL: Natalie Marconi, Counsel for the Plaintiff No one appearing for the Defendant

HEARD: March 2, 2022

Endorsement

[1] The plaintiff, a judgment creditor on a liquidated debt since August 2021, brings this motion for an order for a judicial reference sale of the Defendant’s property at 2485 Woking Cres., Mississauga Ontario as a prerequisite to seeking an order for sale of the property. The plaintiff has also sought other relief related to a judgment/debtor examination.

[2] The defendant has not responded to this motion and did not appear.

[3] The primary issue on this motion is whether the sale of the property should proceed by way of a judicial reference sale under Rules 54.02 and 55.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, or by sheriff’s sale under the Executions Act, R.S.O 1990, c. E.4.

[4] The plaintiff has provided a factum and affidavit setting out the advantages to all parties of proceeding by way of judicial reference sale rather than sheriff’s sale. The affidavit evidence persuades me that the judicial reference sale is more likely to achieve a fair market value sale than the antiquated sheriff’s sale method. The judicial reference sale is more advantageous to all parties concerned, including the debtor. The judicial reference sale is more reflective of the current approach to real estate sales than the sheriff’s sale, which remains anchored in the 19th century.

[5] I appreciate that there are conflicting judicial decisions on the availability of the judicial reference sale in the circumstances of this case. In Canaccede International Acquisitions Ltd. v Abdullah, 2015 ONSC 5553, Broad J. decided that the Court had the inherent jurisdiction to order a judicial reference sale instead of a sheriff’s sale. He stated, at para. 27:

In my view, where the court has an inherent jurisdiction to make an appropriate order which will do justice between the parties, the court is at liberty to do so and should do so where the circumstances warrant it, in the absence of binding authority or an overriding policy reason constraining it from following such a course.

[6] This view has been followed by several courts, but rejected by other courts, see for example: RBC v. Wong, 2022 ONSC 54 and Luu v. Abuomar, 2016 ONSC 4299.

[7] In RBC v. Wong, at para. 37, Kurz J. was particularly concerned about the potential burden on judicial resources if the judicial reference approach is used. Given my understanding of the nature of a judicial reference sale, I do not agree that this approach is likely to burden judicial resources in any kind of disproportionate way. Any disputes that might arise in a judicial reference (eg, priority of creditors) would likely come before the court in some other proceeding if it could not be resolved. If there are no such disputes the judicial reference may proceed before an Associate Judge and be dealt with in short order.

[8] Accordingly, I agree with and adopt the analysis and conclusion of Broad J. in Canaccede.

[9] Order to go per draft order as amended.

Justice R.E. Charney Date: March 2, 2022