Court File and Parties

COURT FILE NO.: CV-16-555685 DATE: 2022-10-06 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROYAL BANK OF CANADA, Plaintiffs AND: ROBERT GEOFFREY NEWBURY, Defendants

BEFORE: VELLA J.

COUNSEL: Gregory W. Bowden, for the Plaintiff Robert Geoffrey Newbury, Self-represented Defendant

HEARD: September 26, 2022

Endorsement

[1] This is a motion brought by the Plaintiff, Royal Bank of Canada, for an Order for judicial sale of the Defendant’s, Robert Geoffrey Newbury’s, property under r. 54.02(2)(b).

[2] RBC is a judgment creditor while Mr. Newbury is the judgment debtor. The total liquidated debt reflected by the judgments against Mr. Newbury totals $62,035.43.

[3] There has been a wave of similar motions brought by judgment creditors against judgment debtors seeking the same relief. The argument in support is essentially that a judicial sale inevitably yields a higher sale price than does an auction conducted by the sheriff. This is because under a judicial sale, the property will be listed for sale on the open market in the usual course. Furthermore, the judicial sale process provides an opportunity for the debtor to voice any concerns they may have regarding the process.

[4] The argument against is that resort to r. 54.02(2)(b) directing a reference to an associate justice may place too heavy a burden on the judicial system.

[5] The court has offered diverse rulings in terms of which argument ultimately prevails. See RBC v. Wong, 2022 ONSC 54, Bank of Nova Scotia v. Carmichael, 2022 4294 and Luu v. Abuomar, 2016 ONSC 4299, dismissing such motions, and Canaccede International Acquisitions Ltd. v. Abdullah, 2015 ONSC 553, Nissan Canada Financial Services Inc. v. Colborne CV-19-00141866-0000 (unreported decision of Dawe, J. dated October 6, 2021) and RBC v. Shawesh CV-21-00001216-0000 (unreported decision of Charney J. dated March 2, 2022) granting motions ordering a judicial sale.

[6] In this case, I have the uncontested affidavit evidence of Murray Nightingale, who is a partner at the plaintiff’s law firm and a senior member of the bar with experience in judicial sales and sheriff conducted public auctions of properties.

[7] The evidence of Mr. Nightingale satisfies me that there are good advantages to endorsing the judicial sale route under r. 54.02(2)(b), including that this process is more likely to secure fair market value price for the judgment debtor’s property than will a sheriff’s auction, and also the value of ensuring that the judgment debtor/defendant, has an ability to raise concerns about the sale before the associate justice with carriage in the course of that process.

[8] Mr. Newbury concurred with Mr. Bowden’s submissions and advised that he was consenting to the Royal Bank of Canada’s motion. He spoke from his own experience as a lawyer who used to do mortgage enforcement. He participated in two sales that were conducted by the sheriff. His own experience was that the auction process was “a mess” and does not typically afford a good financial outcome for the defendant as achieving below market results. He also cited the inability for the defendant to have a voice in the public auction process.

[9] In his submissions, Mr. Newbury further said that he much preferred a judicial sale because it provided “a much cleaner process” and provides him with more time to try to resolve the debt issue to avert the need for a sale than would under a public auction conducted by the sheriff.

[10] Furthermore, Mr. Newbury submitted that under a judicial sale, such as proposed here, the defendant/judgment debtor, has an ability to list his, her or their property for sale parallel with the judicial sale. In other words, he would have more control under the judicial sale process.

[11] The proposed Order, drafted by Mr. Bowden, was reviewed and Mr. Newbury voiced his agreement with the form and substance, subject to the issue of the costs being sought.

[12] In the end, costs were agreed to in the amount of $500 all inclusive, and the draft order was revised accordingly to reflect the consent to this order and the agreed upon costs.

[13] Accordingly, on consent, judgment granted ordering a reference for a judicial sale under r. 54.02(2)(b) with costs fixed at $500 all inclusive. This process best accords with the principles reflected under r. 1.04 in the circumstances of this case.

Justice S. Vella

Dated: October 06, 2022