2023 MBKB 90, 2023 MBKB 90

Date: 20230526 Docket: CI 23-01-39675 and CI 22-01-37855 (Winnipeg Centre) Indexed as: Royal Bank of Canada v. Borne et al.; and Jameson, Gilroy & B. & L. Livestock Ltd. v. Borne et al. Cited as: 2023 MBKB 90 COURT OF KING'S BENCH OF MANITOBA (File No.: CI 23-01-39675) B E T W E E N: ROYAL BANK OF CANADA, ) J. Michael J. Dow applicant, ) Kalev A. Anniko - and - ) for Royal Bank of Canada ) DAVID JASON BORNE, CARLA RUTH ) Faron J. Trippier BORNE, DAVID PETER BORNE, ROBIN ) Tracy A. McMahon MARY BORNE and BORNE FARMS, ) for David Peter Borne and respondents. ) Robin Mary Borne ) ) Timothy J.

Fry (Did Not Appear) ) for David Jason Borne, ) Carla Ruth Borne and Borne Farms (File No.: CI 22-01-37855) A N D B E T W E E N: JAMESON, GILROY & B. & L. ) John B. Martens LIVESTOCK LTD., ) for Jameson, Gilroy & B. & L. plaintiff, ) Livestock Ltd. - and - ) ) DAVID JASON BORNE, DAVID PETER ) Faron J. Trippier BORNE, CARLA RUTH BORNE, ROBIN ) Tracy A. McMahon MARY BORNE, BORNE FARMS, ROCKING ) for David Peter Borne, Robin Mary B CATTLE CO. LTD., 7244496 ) Borne and DNR FARM LTD. MANITOBA LTD., DNR FARM LTD., ) and GREGORY WILLIAM FEDAK, ) Timothy J.

Fry (Did Not Appear) defendants. ) for David Jason Borne, Carla Ruth ) Borne, Borne Farms, Rocking B Cattle Co. ) Ltd. and 7244496 Manitoba Ltd. ) ) Derek M. Olson ) for Gregory William Fedak ) ) Judgment Delivered: ) May 26, 2023 OTHER INTERESTED PARTIES (CI 23-01-39675 and CI 22-01-37855)

David R.M. Jackson for Deloitte Restructuring Inc. Ross A. McFadyen for Fusion Credit Union, Farm Credit Canada and Stride Credit Union Catherine E. Howden for BMO Bank of Montreal Amanda E. Verhaeghe for Ste. Rose & District Cattle Feeders Co-Op Inc. and Township 20 Beef Breeders Co-Operative Incorporated Eric N. Blouw for Titan Livestock Inc. and Bear Spring Ranch Ltd. Stephen K. Branigan (via teleconference) for Martin Livestock Ltd. Timothy E. Doyle for Attorney General of Canada PERLMUTTER A.C.J.

Introduction [ 1 ] The applicant Royal Bank of Canada (RBC) applies for an order that pursuant to s. 243(1) of the Bankruptcy and Insolvency Act , R.S.C. 1985, c. B-3 and s. 55 of The Court of King’s Bench Act , C.C.S.M. c. C280 , Deloitte Restructuring Inc. be appointed receiver of the assets of the respondents (the Bornes) other than real property used in connection with their business. It is undisputed that based on security held by RBC with respect to the Bornes’ assets, RBC is entitled to appoint a receiver.

However, several other interested parties oppose the appointment of a receiver over proceeds of sales which arose from an auction of cattle that were owned by the Bornes or in their possession or control. These interested parties advance claims against the auction proceeds based on their various alleged ownership or other interests in the cattle.

RBC is only pursuing its application to appoint a receiver if the appointment extends to the auction proceeds with a charge over the auction proceeds for the receiver’s costs. [ 2 ] The auction sale was ordered by the court in the context of the related action (CI 22-01-37855) in which the plaintiff, Jameson, Gilroy & B. & L. Livestock Ltd. (JGL), obtained a “Mareva” [1] injunction freezing the assets of the Bornes and the other defendants in the related action. JGL is one of the interested parties opposed to RBC’s application.

JGL also now seeks reimbursement from the auction proceeds of some of its legal costs incurred with respect to the Mareva order including its role leading to the cattle auction sales. No interested party objects to JGL being reimbursed for some portion of its legal costs. However, it is RBC’s position that the claim for these costs should be addressed as part of the receiver’s work, while the other interested parties take issue with the quantum of the costs to be paid from the auction proceeds.

Background [ 3 ] The Bornes carried on a beef cattle operation and, along with others, are defendants in the related action. JGL is a licensed livestock dealer. As a livestock dealer, JGL buys and sells cattle.

In the related action [2] , JGL claims against the Bornes and other defendants ownership of cattle (and now the auction proceeds from the sale of this cattle) that were, or were to be, in the possession or control of the Bornes or other defendants and in which JGL asserts it has title by virtue of its purchase and sale contracts regarding these cattle. [ 4 ] On October 7, 2022, in the related action, on an ex parte motion by JGL, an order was granted freezing the defendants’ assets (the Mareva order). These assets included cattle owned by the Bornes or in their possession or control.

Of the other interested parties who were served with the Mareva order, the following take positions regarding RBC’s application to appoint a receiver and JGL’s request for reimbursement of its legal costs: • Fusion Credit Union Limited, Farm Credit Canada and Bank of Montreal as secured creditors of some of the Bornes; • Titan Livestock Inc., Bear Spring Ranch Ltd. and Martin Livestock Ltd. who assert they were owners of numerous head of cattle

that were in the Bornes’ possession or control (prior to the auction sale), frozen under the Mareva order, and which were sold at auction such that they now claim ownership interests in the auction proceeds; and • Ste. Rose & District Cattle Feeders Co-Op Inc. and Township 20 Beef Breeders Co-Operative Incorporated (collectively, the Co- Ops) who have breeder or feeder agreements, pursuant to which they had placed cattle purchased on behalf of their members (including the Bornes and other defendants) and all progeny with the Bornes and other defendants.

On this basis, they too claim interests in the auction proceeds. [ 5 ] On November 2, 2022, in the related action, several interested parties, including all those noted above, proposed to the court that funds secured by the Mareva order be used for the feeding, housing and transport of the cattle to a secure location pending a determination of the various claims of ownership and entitlement to the cattle.

It soon became clear this proposed plan was unworkable because the available funds were insufficient to pay the anticipated transport, housing and feeding of the cattle until the determination of the various ownership and entitlement claims. As well, no one else was prepared to pay these costs and no secured creditor was seeking to appoint a receiver.

After alerting the court to these circumstances, on December 6, 2022, in the related action, a consent order was issued allowing for the rounding up, identification, transport, and sale by auction of the cattle owned, possessed, or controlled by the Bornes and other defendants. Proceeds in the amount of $1,342,715.67 were realized from the cattle auction. [ 6 ] Pursuant to the consent order, January 27, 2023 was scheduled for anyone who wished to make submissions relating to an interest in, ownership of, entitlement to, or make claims or encumbrances upon, the proceeds from the sale of the cattle.

RBC, JGL and the other interested parties have asserted various types of debt, trust, deemed trust, security, and other equitable and legal claims against the Bornes and in part or all of the auction proceeds.

The consideration of those claims (scheduled for January 27 th ) was adjourned to allow RBC to file its application to appoint a receiver. [ 7 ] The consent order also provides that JGL “shall be entitled to a reasonable sum, to be agreed upon by the parties consenting to this Order, or alternatively approved by the Court at the January 27, 2023 hearing… (or another hearing for that purpose)… in respect of legal fees and disbursements it has incurred for the purposes of obtaining and maintaining the Mareva Order, this [Consent] Order, [and] any matters relating to effecting this Order…”.

The hearing of JGL’s claim for its legal costs was also adjourned from January 27 th to allow it to file further information about the legal accounts for which it seeks reimbursement. Parties ’ Positions [ 8 ] It is conceded by those interested parties who have taken a position that pursuant to RBC’s security over the Bornes’ assets, RBC is entitled to appoint a receiver over these assets.

RBC’s application to appoint a receiver over all of the Bornes’ assets is supported by Fusion Credit Union, Farm Credit Canada and Bank of Montreal, while JGL, Titan, Bear Spring, Martin Livestock, and the Co-Ops all oppose the appointment of a receiver over the auction proceeds largely because of the receiver’s related charge. If a receiver is appointed, they oppose the receiver’s charge over the auction proceeds.

However, RBC only seeks to have a receiver appointed if the appointment extends to the auction proceeds with a charge over the auction proceeds for the receiver’s costs. [ 9 ] As noted, prior to RBC’s application to appoint a receiver, it was contemplated by the consent order in the related action that on January 27, 2023, the court would hear submissions from those claiming ownership or other entitlement to the auction proceeds. For the purpose of this January 27 th hearing, several such interested parties filed evidence and written submissions in support of their claims.

However, it is RBC’s position that the single proceeding model provided through the appointment of a receiver to act on behalf of all interested parties to investigate and evaluate all claims being asserted will maximize the global recovery by reducing costs and avoiding the inefficiency and “chaos” of each interested party asserting and responding to the claims of others in the related action.

To the extent that material has already been filed in the related action by those asserting claims to the auction proceeds, RBC submits that this material reflects that their claims are contradictory, overlapping and competing.

It is RBC’s position that a receiver would facilitate the resolution of the claims to the auction proceeds by reconciling them with the Bornes’ actual affairs. [ 10 ] It is the position of JGL, Titan, Bear Spring, Martin Livestock, and the Co-Ops that the court (without a receiver) ought to determine their interests in the auction proceeds based on the evidence and submissions as contemplated by the process in the consent order. [ 11 ] With respect to the issue of reimbursement of JGL’s legal costs, it is JGL’s position that from the time it obtained the Mareva order, it located, preserved, secured, and realized the assets subject to the Mareva order in a manner that has benefitted all of the interested parties.

As such, JGL says it should be reimbursed from the auction proceeds for its legal costs with respect to that work. JGL claims $100,000 for legal fees and $10,000 for disbursements. JGL suggests that the allocation of these amounts be determined following the resolution of the various ownership and entitlement claims. [ 12 ] It is RBC’s position that JGL’s cost claim should be addressed by the receiver once appointed. Titan, Bear Spring and Martin Livestock all oppose JGL’s claim for these costs as they say they were harmed by the Mareva order because it prevented them from retaking their cattle.

If an amount is to be paid towards JGL’s costs, it is the position of Titan and Bear Spring that these costs be limited to JGL’s efforts to get the cattle to auction (from the date of the pertinent consent order). It is Martin Livestock’s position that having regard to the applicable tariff for costs, a reasonable amount for JGL’s costs is $30,000, with only $10,000 of this amount payable from the auction proceeds and the balance paid from amounts held in the Bornes’ account at Stride Credit Union and by way of judgment against the Bornes.

It is the Co-Ops’ position that having regard to the overlap in work among JGL’s counsel and considering work done for the benefit of the interested parties rather than JGL alone, the legal fees should be fixed at $25,000 to $30,000. Issues [ 13 ] The parties’ positions give rise to the following issues: 1. Should JGL be paid some or all of the legal costs it claims and, if so, should these be paid from the auction proceeds?

2. Should Deloitte be appointed receiver including over the auction proceeds with a related charge over the auction proceeds for itscosts? Analysis 1. Should JGL be paid some or all of the legal costs it claims and, if so, should these be paid from the auction proceeds? [14] As mentioned, the consent order provides that JGL shall be entitled to a reasonable sum in respect of legal costs it has incurredfor the purpose of obtaining, maintaining and effecting the Mareva order.

It is RBC’s position that this claim is to be addressed by thereceiver as part of its role (with the determination of this issue by the court following receipt of the receiver’s report andrecommendations). However, as will be seen, I am dismissing RBC’s application to appoint a receiver. As such, I will now considerJGL’s claim for reimbursement of its legal costs. [15] In considering what amount is reasonable for reimbursement of JGL’s costs, I agree with JGL’s submission that its role was akinto that of a receiver.

Through the Mareva order, JGL, working with its counsel, effectively secured all of the assets, protected thoseassets for the benefit of the interested parties and obtained through the consent order a process for the sale of some of these assets (thecattle).

As reflected by the fact of the Mareva order, this was undertaken in the context of compelling evidence of real and genuine riskof dissipation of assets. [16] As such, it is my view that relevant to the determination of fair and reasonable compensation for JGL’s legal costs are thosepertinent considerations from the following non-exhaustive list of considerations for reviewing a receiver’s fees as referred to in FederalBusiness Development Bank v.

Belyea (1983), (NB CA), 46 C.B.R. (N.S.) 244 (NBCA), at para. 9, and repeatedlyaccepted in other cases as a useful guideline: The considerations applicable in determining the reasonable remuneration to be paid to a receiver should, in my opinion, include thenature, extent and value of the assets handled, the complications and difficulties encountered, the degree of assistance provided by thecompany, its officers or its employees, the time spent, the receiver's knowledge, experience and skill, the diligence and thoroughnessdisplayed, the responsibilities assumed, the results of the receiver's efforts, and the cost of comparable services when performed in aprudent and economical manner. (Chartrand v.

De la Ronde (1999), (MB KB), 139 Man. R. (2d) 36 (C.A.) (para. 10); Nortel Networks Corp., Re, 2017 ONSC 673, paras. 14-15; see also Frank Bennett, Bennett on Receiverships, 4th ed. (Toronto: Carswell, 2021 at p. 768)) [17] Ultimately, JGL’s efforts led to a favourable result. This result was achieved in relatively complex circumstances with severalrelated challenges.

For example, as a result of difficulties locating cattle that could be subject of the Mareva order, JGL’s counselobtained an order allowing JGL to enter upon the real property owned or leased by the defendants in the related action with theassistance of Livestock Services of Saskatchewan (LSS) (engaged by JGL) and the Sheriff to observe and inventory the cattle. LSS isdescribed in JGL’s affidavit evidence as a specialist in cattle identification.

JGL, LSS, and the Sheriff attended various properties to doso. [18] With insufficient funds to care for the cattle pending the determination of the various claims of ownership and entitlement, giventhe perishable nature of the cattle, as proposed by JGL, and ultimately by consent order, the cattle were rounded up to be sold at auction.

Once this consent order issued, JGL and its counsel quickly began coordinating the rounding up of the cattle, obtained the requisitefunds from Stride Credit Union, coordinated with legal counsel for the other interested parties, arranged for transportation, coordinatedwith LSS for cattle inspection and reporting, determined the auction sale dates, and filed related reports. [19] In undertaking the foregoing, JGL’s counsel assumed significant responsibility. This included filing court materials to report onthe process with related service of documents and arranging hearings.

This involved ongoing communication with the court, othercounsel, and those interested parties without counsel. Since October, 2022, there were more than 115 filings on the court docket andseven court appearances, all within a relatively dynamic situation. [20] Titan, Bear Spring, and Martin Livestock argue that the Mareva order was to their detriment as it prevented them from retrievingtheir cattle. However, LSS indicated (as reflected in the evidence filed by JGL) that the cattle subject to the different ownership andentitlement claims were located in various pastures.

As such, the assertion that Titan, Bear Spring, or Martin Livestock could havereadily identified and taken their cattle from a particular location is unpersuasive.

I agree with JGL’s counsel that the identification androunding up of the cattle as part of the Mareva order was helpful in creating an orderly process to secure the cattle until they could befurther identified and observed as part of the auction process. [21] This all weighs in favour of reimbursement of the costs claimed by JGL. [22] Other pertinent circumstances weighing in favour of reimbursement to JGL are that its actual legal fees exceeded $180,000 anddisbursements exceeded $12,000.

However, JGL’s counsel reduced its fees to reflect duplication in work by different counsel andcounsel at different levels of seniority. The blended hourly rate of JGL’s counsel is about $395. Also supportive of the amount claimedfor reimbursement of legal costs is that JGL has limited its claim to $100,000 of the $180,000 in fees charged to it so as to reflect workundertaken for the benefit of all interested parties (in the manner described above), recognizing that the balance of $80,000 in fees wereincurred for JGL’s benefit alone.

[23] I recognize the evidence does not permit perfect scrutiny of the accuracy of the foregoing allocation of fees based on legal workundertaken for the benefit of all interested parties as opposed to JGL alone. While recognizing this imperfect allocation of legal fees,given the circumstances as a whole, including the other factors I have discussed above, and in light of the amount realized on the cattle,it is my view that the amount of JGL’s costs claim is fair and reasonable.

This amount reflects about 8% of the amount of the proceedsgenerated by the auction sales, which, again, in my view is fair and reasonable in the circumstances (even when recognizing other relatedcosts were incurred). [24] Having carefully considered and weighed all of the pertinent factors outlined above, it is my view that the full amount claimed byJGL of $100,000 for legal fees and $10,000 for disbursements is fair and reasonable.

Therefore, JGL is entitled to be paid this amount. [25] It is also my view that given that it was JGL’s efforts with its legal counsel that generated the auction proceeds, it is fair and justthat this amount be paid from the auction proceeds. [26] Accordingly, I am ordering that the amounts of $100,000 for legal fees and $10,000 for disbursements be paid at this time to JGLfrom the auction proceeds with the allocation of these amounts to be determined at a later date after the resolution of the claims ofownership or other entitlement to the auction proceeds. 2.

Should Deloitte be appointed receiver including over the auction proceeds with a related charge over the auction proceeds for itscosts? [27] The legal principles applicable to the appointment of a receiver are provided in the often referenced Bank of Nova Scotia v.Freure Village on Clair Cree (1996), (ON SC), 40 C.B.R. (3d) 274. For example, in Royal Bank of Canada v.CFNDRS Inc., 2017 ONSC 7661, F.L. Myers J. wrote (paras. 8-9): The test for the appointment of an interlocutory receiver is well understood. In para. 10 of Bank of Nova Scotia v.

Freure Village of ClairCreek, (ON SC) Blair J. (as he then was) set out several propositions that remain applicable today: a. The Court has the power to appoint a receiver or receiver and manager where it is "just or convenient" to do so; b. In deciding whether or not to do so, the court must have regard to all of the circumstances but in particular the nature of the propertyand the rights and interests of all parties in relation thereto; c.

The fact that the moving party has a right under its security to appoint a receiver is an important factor to be considered but so, insuch circumstances, is the question of whether or not an appointment by the Court is necessary to enable the receiver-manager to carryout its work and duties more efficiently; d. It is not essential that the moving party, a secured creditor, establish that it will suffer irreparable harm if a receiver-manager is notappointed.

Justice Blair also noted that while the appointment of a receiver may be seen to be extraordinary, it is much less extraordinary when theplaintiff has a contractual right to appoint a receiver on its own.

The question of whether a court appointment then is just and convenientwhen there is a contractual power of appointment will turn on an assessment of, "the potential costs, the relationship between the debtorand the creditors, the likelihood of maximizing the return on and preserving the subject property and the best way of facilitating the workand duties of the receiver-manager." Freure Village at para. [12]. (See also, Bank of Montreal v.

Carnival National Leasing Limited, 2011 ONSC 1007, paras. 24, 27) [28] At the outset, it is important to again note RBC does not seek the appointment of a receiver unless the receiver’s appointmentextends to the auction proceeds with a charge for the receiver’s costs over the auction proceeds. It is also important to point out thatwhile it was suggested by some other interested parties that RBC would unduly benefit from the appointment of a receiver, if appointedthe receiver is appointed by the court for the benefit of all interested parties.

It would be the receiver’s obligation to ensure that allinterested parties, including RBC, are treated fairly and that a fair process is used to deal with the assets subject to the receivership. [29] As submitted by RBC’s counsel, if appointed, the receiver would, in its capacity as an independent officer experienced ininsolvency matters, investigate and evaluate the myriad of competing claims to the auction proceeds and the evidence produced so far.

This would involve an investigation into the origin of the various cattle whose sale generated the auction proceeds and involve issuessuch as branding, rebranding and calving and include examinations under oath of the Bornes. Thereafter, the receiver would report itsfindings and recommendations to the court which would include who it believes is entitled to what portion of the auction proceeds, whatpre-receivership costs are recoverable (such as the legal costs claimed by JGL and some defendants in the related action), and with

respect to payment of the receiver’s costs and the allocation of these costs. RBC’s counsel anticipates that concurrent with its report, the receiver would move before the court for advice and directions regarding payment of the auction proceeds based on its report.

All interested parties would have the opportunity to take issue with the receiver’s findings. [ 30 ] RBC’s counsel submits that the appointment of a receiver and the receiver’s report would resolve most, if not all, of the claims to the auction proceeds and avoid a multiplicity of proceedings by achieving the benefits of equitable and orderly resolution of disputes as reflected in the “single proceeding model” ( Peace River Hydro Partners v. Petrowest Corp. , 2022 SCC 41 , paras. 52-55 , 62 and 66).

While RBC acknowledges that the investigative work required to resolve the issues of ownership and entitlement will be costly, it submits that the receiver can do this work more effectively at a lower cost such that all interested parties would benefit. RBC also points out that the receiver may identify other assets of the Bornes that may be available to be claimed by creditors. [ 31 ] Turning to the factors outlined in Freure Village , the Bornes’ property is already preserved by the Mareva order and the central assets (the cattle, as perishable) sold at auction with the proceeds preserved in a trust account.

Nothing has otherwise been specifically identified in the evidence or submissions about the relationship between the parties that requires the appointment of a receiver to assume management of the assets. This all militates against the appointment of a receiver. [ 32 ] In considering RBC’s submission that the appointment of a receiver over the auction proceeds will maximize return to the interested parties, apt is the following view expressed by F.L.

Myers J. in CFNDRS Inc. (para. 10 ): In my view, the issue that usually tips the balance is whether there is a reason to incur the expense and procedural formality of appointing a third party to exercise neutral, transparent, accountable stewardship of the assets of the debtor while interested parties jostle on the merits of whatever their dispute may be.

If the parties' dispute puts the business assets at risk or where realization options may be impaired by leaving the business in the debtor's hands or requiring the secured creditor to bear the risk of indemnifying a privately appointed receiver, the court will usually intervene. Often, simple default on secured debt will be sufficient to attract a receivership where the risk to the business is implicit in the nature of the business or the dispute between the creditor(

s) and the debtor(s). However, as with all equitable remedies, context is everything and each case turns on its own facts. [Emphasis added] [ 33 ] In the case at hand, apart from the question of whether the appointment of a receiver will maximize return to the interested parties, there is no evidence that their dispute itself over the auction proceeds is putting the proceeds (or any other assets) at risk or that the ability of an interested party to realize upon the auction proceeds (if entitled) may be impaired without the appointment of a receiver. The auction proceeds are safely held in trust.

Again, this militates against the appointment of a receiver. [ 34 ] Many of the interested parties (apart from the secured creditors RBC, Stride Credit Union, Farm Credit Canada and Bank of Montreal) oppose the appointment of the receiver as they submit the receiver will complicate the process for them to claim against the auction proceeds and the receiver’s charge over the auction proceeds for its costs will unnecessarily diminish (as opposed to maximize) their return. I find merit in this submission for the following reasons. [ 35 ] First, the potential costs of the receiver have not been estimated.

Nevertheless, as noted, RBC concedes the receiver’s costs, including that of its legal counsel, would likely be significant. [ 36 ] Second, the receiver’s proposed role in balancing and weighing the evidence as it relates to ownership or other entitlement to the cattle and now the auction proceeds is, in my view, unnecessary in light of the adjudicative process contemplated by the consent order and already undertaken by several interested parties.

The consent order contemplates an adjudication on a fixed date of the issues of ownership or entitlement based on affidavit evidence, potential cross-examinations on these affidavits, with written submissions supplemented by oral submissions. As is apparent in their submissions in opposing RBC’s application, many of the interested parties have confidence in this process. [ 37 ] I recognize the expediency, efficiency, economy and order reflected in the single proceeding model brought about by the appointment of a receiver.

However, in light of the process provided in the consent order to adjudicate the issue of ownership and entitlement along with the steps already undertaken by several interested parties to do so, I expect this process will mitigate the concerns of inefficiency and disorder articulated by RBC’s counsel. [ 38 ] I understand that there remain procedural steps to be undertaken prior to the adjudication of the issue of ownership or other entitlement to the auction proceeds.

Nevertheless, based on the material already filed by several interested parties in support of their ownership or entitlement claims, along with their submissions opposing RBC’s application about how they envision the orderly unfolding of the adjudication of their claims as well as the availability of a timely hearing date, I am not convinced that the appointment of a receiver and the related single proceeding model would, in the unique circumstances of this case, substantially improve the “expeditious, efficient and economical cleanup of the aftermath of [this] financial collapse” ( Petrowest Corp. , para. 62 ).

That is, I am satisfied that “ the raison d'être of the single proceeding model in Canadian insolvency law ” ( Petrowest Corp. , para. 62 ) can largely be achieved through the adjudicative process contemplated by the consent order. To the extent that there may still be shortcomings in the adjudicative process contemplated in the consent order, based on the submissions of the experienced counsel involved, I expect they will be offset by thoughtful, sensible, constructive, and proportionate procedural approaches.

As in any case, it is expected and required that counsel work cooperatively and, if need be, seek court direction, to keep the process as expeditious, efficient, economic, and orderly as possible. [ 39 ] Third, as already alluded to, many of the interested parties have filed their evidence and, in some cases, written submissions in respect of their claims of ownership or other entitlement to the auction proceeds. This would have come at some cost to these interested parties.

Again, I do not see any proportionate benefit in the appointment of a receiver at this juncture in light of these steps already undertaken by the interested parties in accordance with the adjudicative process provided as part of the consent order. I agree with the submissions of several of the interested parties that there is also a benefit in terms of cost and efficiency with them advancing their

ownership or other entitlement claims directly to the court for adjudication as opposed to later potentially challenging the recommendations of the receiver in its report to the court, again, particularly given that several of them have already filed substantial materials for this adjudication. [ 40 ] Fourth, while it may be that additional information could become available through the exercise of the receiver’s investigative powers, at this stage it is not apparent what this additional information would be and the relative value of this information to the ultimate determination of ownership or other entitlement.

While only one of many considerations, it is also not apparent that any additional information would be of value to all interested parties.

For example, Titan and Bear Spring submit that because their claims to the auction proceeds are as owners of the cattle, as opposed to secured creditors of the Bornes, they would not benefit from the receiver’s work in tracing the funds advanced to the Bornes or locating any other assets that may be available to creditors. [ 41 ] Fifth, there is no evidence that the receiver has any particular expertise with respect to the question of ownership or entitlement to the cattle that would substantially assist the court.

To the extent that the receiver would retain any necessary expert to assist in its task, obviously it is equally open to all interested parties, including RBC, in the course of the adjudication of the ownership and other entitlement claims, to file whatever expert evidence may be appropriate. [ 42 ] In sum, in considering the “just or convenient" question, balancing all of the circumstances and equities outlined above, I am not prepared to appoint a receiver. In my view, for the reasons discussed, at this stage, there is no compelling reason to incur the expense and procedural formality of appointing a receiver.

In light of the steps already taken to secure the assets such that the cattle were converted to proceeds through the auction sales (and remain securely held in trust), there is no substantial concern about neutral, transparent or accountable stewardship of the Bornes’ identified assets. No substantive assets have been identified as being at risk if a receiver is not appointed. As well, the process contemplated by the consent order to adjudicate the issues of ownership or other entitlement to the auction proceeds will provide neutrality, transparency and accountability in the disposition of these proceeds.

I am not persuaded that the appointment of the receiver would likely maximize the return available for all interested parties by substantially mitigating any shortcomings associated with the adjudicative process contemplated by the consent order. I am equally not persuaded that the adjudicative process contemplated by the consent order will not proceed in an expeditious, efficient and economical manner. [ 43 ] Accordingly, I am dismissing RBC’s application. Conclusion [ 44 ] In

summary, I have arrived at the following conclusions: 1. The amounts of $100,000 for legal fees and $10,000 for disbursements are to be paid at this time to JGL from the auction proceeds with the allocation of these amounts to be determined at a later date after the resolution of the claims of ownership or other entitlement to the auction proceeds. 2. In examining and balancing all of the pertinent circumstances and the community of interests, I am not satisfied that it is just or convenient to appoint a receiver. As such, RBC’s application is dismissed. [ 45 ] In light of my conclusions, I am directing that counsel

schedule a one-day hearing before me on an available date that is reasonably convenient for all parties to adjudicate the issue of ownership or other entitlement to the auction proceeds as contemplated by the pertinent consent order. Presumably, counsel can agree upon a suitable

schedule for the related outstanding procedural steps, but if not, a brief appointment may be arranged before me. In any event, I would ask that any and all materials to be relied upon be filed and served by no later than ten business days before the hearing date. If the issue of costs regarding the matters adjudicated in this decision cannot be agreed upon, this issue may also be addressed as part of the one-day hearing. __________________________________ A.C.J.