I. Sale of the Assets

AuthorRoderick J. Wood
ProfessionFaculty of Law. University of Alberta
Pages489-491

Page 489

At common law, the privately appointed receiver was viewed as acting in a fundamentally different capacity than the court-appointed receiver in selling the assets. A privately appointed receiver acted as an agent of the secured creditor in enforcing the security interest. The receiver therefore had the same rights and was subject to the same obligations as a secured creditor, and in selling the collateral was required to observe the same enforcement procedures as required of a secured creditor.

A court-appointed receiver acted not as an agent of the secured creditor but on behalf of all persons who had an interest in the assets. The power to sell the assets was derived from the order of the court rather than from the provisions of the security agreement. Consequently, the court-appointed receiver was not required to follow the procedures imposed by provincial law on the enforcement of security interests by secured creditors. Instead, the receiver was required to follow the sale process mandated by the court. The court typically gives the receiver the power to sell assets in the ordinary course of business, but requires court approval in respect of substantial sales of assets outside the ordinary course of business. The court-appointed receiver will often seek directions from the court in respect of his or her plan for marketing and selling the property, and frequently appraisals are obtained and filed with the court.

The common law position has been modified by provincial personal property security legislation. The statutes provide that a refer-

Page 490

ence to a secured party includes a receiver for the purposes of most of the enforcement provisions of the Acts. A privately appointed receiver is clearly subject to the enforcement provisions of the Acts. This means that, in the conduct of the sale, the receiver must give the pre-sale notice and comply with the other requirements of provincial personal property security legislation. A pre-sale notice is not required in respect of sales that are conducted by the receiver in the ordinary course of the debtor’s business.75If the personal property is sold together with real property, the secured creditor may proceed against both in a single action, and the procedure for enforcement against land rather than the enforcement provisions of the PPSA will govern.76The uncertainty arises primarily in connection with the application of enforcement provisions of the PPSA to court-appointed...

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