Often the debt underlying the security given to a creditor applying for the appointment of a receiver is not in dispute and the court does not have consider the underlying debt. Given that a receiver can be appointed in ongoing litigation proceedings under the Law and Equity Act if it is ‘just and convenient’ however, it isn’t always the case that the receiver’s appointment is sought based on undisputed debt and undisputed default. In Ward Western Holdings Corp. v. Brosseuk, 2022 BCCA 32, the BC Court of Appeal confirmed that a receiver can be appointed before trial even when the facts are disputed and there is conflicting evidence before the presider regarding the circumstances.
The appellants/plaintiffs in Ward Western argued that the Chambers Judge had erred by making findings of fact in appointing a receiver, despite conflicting affidavit evidence. While the Court of Appeal concluded that there were in fact uncontested events of default in the evidence before the Chambers Judge, the Court of Appeal also emphasized that the Chambers Judge had properly considered whether the appointment of a receiver was just and convenient based on the various factors listed in Textron Financial Canada Limited v. Chetwynd Motels Ltd., 2010 BCSC 477. It was open to the Chambers Judge to conclude that the appointment of a receiver would advance the interests of justice and convenience. The Court of Appeal upheld the court appointment of the receiver as valid.
In CMI Roadbuilding Inc. v. Key-West Asphalt Products Ltd., 2022 BCSC 1789, the Court appointed a receiver and expressly relied on Ward Western as authority for the proposition that a receiver can be appointed “even where the facts of the case are actively disputed in conflicting evidence.”