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Courts - Commercial Court. Cameron Stephens Mortgage Capital Ltd. v. Conacher Kingston Holdings Inc.
In Cameron Stephens Mortgage Capital Ltd. v. Conacher Kingston Holdings Inc. (Ont CA, 2025) the Ontario Court of Appeal dismissed a APS purchaser's appeal, this where the vendor was an insolvency trustee and a "motion judge declined to approve the sale" [considering 'Soundair' principles]:[2] The appellant submits that the motion judge erred in re-opening the process, and in doing so, improperly applied the principles articulated by this court in Royal Bank of Canada v. Soundair Corp. (1991), 1991 CanLII 2727 (ON CA), 4 O.R. (3d) 1 (C.A.). The appellant asks this court to set aside the motion judge’s order and direct the Receiver to proceed with the sale of the property to him.
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[29] The standard of review on this appeal is not controversial. The motion judge’s order relating to the approval of a sale is discretionary. This court will only interfere if the motion judge erred in law, seriously misapprehended the evidence, exercised his discretion based upon irrelevant or erroneous considerations, or failed to give any or sufficient weight to relevant considerations: see Reciprocal Opportunities Incorporated v. Sikh Lehar International Organization, 2018 ONCA 713, 426 D.L.R. (4th) 273, at para. 54; Bank of Canada v. Regal Constellation Hotel (Receiver of) (2004), 2004 CanLII 206 (ON CA), 71 O.R. (3d) 355 (C.A.), at para. 22.
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Issue 1: Did the motion judge misapply the principles articulated in Soundair?
[30] This court gives substantial deference to the discretion of commercial court judges supervising insolvency and restructuring proceedings: Ravelston Corporation Limited (Re), 2007 ONCA 135, 85 O.R. (3d) 175, at para. 3; Marchant Realty Partners Inc. v. 2407553 Ontario Inc., 2021 ONCA 375, 90 C.B.R. (6th) 39, at para. 18. Accordingly, the motion judge’s decision to re-open the auction process is entitled to substantial deference.
[31] Commercial court judges also give substantial deference to the recommendations of a court-appointed receiver, so long as: (1) the receiver’s recommendations are within the broad bounds of reasonableness; and (2) the receiver proceeded fairly: Ravelston, at para. 3; Marchant Realty, at para. 19.
[32] The appellant argues that the motion judge misapplied the principles set out by this court in Soundair for reviewing and approving a receiver’s sale of property.
[33] Under the principles described in Soundair, the motion judge had to consider:. whether a sufficient effort has been made to obtain the best price and whether the Receiver has acted improvidently;
. the interests of all of the parties;
. the efficacy and integrity of the process by which the offers were obtained; and
. whether the working out of the process was unfair: Soundair, at p. 9. [34] Starting from this point of deference, I do not agree that the motion judge erred in his application of Soundair. The Soundair principles are flexible and case specific. No one factor is determinative. Rather, they are principles that a court must consider when deciding whether a receiver who has sold a property acted properly.
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