Lenders are required to act in a commercially reasonable manner when realizing on security. In the recent case of Canadian Western Bank v. Quigley, the Supreme Court of British Columbia has confirmed that a secured lender who simply defers action to realize on its security is not enough, on its own, to prove that the lender failed to act in a commercially reasonable manner. In the case the Court decided that a debtor has to establish, on an objective basis, that the secured party “departed from industry norms and that a higher price would have been obtained if the secured party had done what is considered to be reasonable in that particular industry.” In most cases, the debtor will have to provide the court with expert evidence to meet this burden. In Canadian Western Bank v. Quigley, the debtor did not establish the lender failed to act in a commercially unreasonable manner when the lender did not proceed immediately to liquidate publicly traded shares held as security for the debt. The Court commented that in deciding what is commercially reasonable in the circumstances, the court should be hesitant to engage in a hindsight analysis as the lender is not obligated, as part of its duty, to predict future events and fluctuations in the market.
