Executive Summary: Key Legal and Evidentiary Issues

• Competing valuations of multiple mortgaged properties created uncertainty over whether the creditor’s judgment was fully secured or at risk of shortfall.
• The ranking of mortgages and judgments, and the pari passu sharing between judgment creditors, was central to how sale proceeds from the Gaba properties would be distributed.
• The court had to reconcile divergent expert appraisals and non-admissible BC Assessment figures in assessing available equity for judgment enforcement.
• Statutory discretion under s. 96(2) of the Court Order Enforcement Act to defer sale of a judgment debtor’s home required balancing prejudice to the creditor against hardship to the debtor and his family.
• The choice between sheriff’s sale and court-supervised realtor sale under Rule 13-5 SCCR and the COEA informed how the properties would be marketed and sold.
• Evidence of other creditors and further encumbrances on Mr. Gaba’s properties raised a real risk of dilution of the petitioner’s recovery, influencing the decision to order immediate sales of two properties.

Factual background
The case arises from efforts by 1063466 B.C. Ltd. (the petitioner) to enforce a substantial judgment debt against Kapil Gaba and related parties. The petitioner had advanced a $4,000,000 loan to 1286121 B.C. Ltd. as borrower, with several corporate entities and individuals, including Mr. Gaba, providing guarantees. That loan was secured by mortgages over four different properties. When the borrower defaulted, the petitioner commenced foreclosure proceedings and obtained a personal judgment against Mr. Gaba and others. The petitioner believed that, despite having mortgage security, the available equity in the secured properties would not be sufficient to satisfy the judgment in full. It therefore pursued parallel collection efforts, including execution proceedings against three properties owned personally by Mr. Gaba (the “Gaba Properties”): his residence on Prince Edward Street (the “Principal Residence”) and two rental properties in Surrey and on 49 Avenue East.
 

The loan, security and default
On or about 30 June 2023, the petitioner entered into a loan agreement with 1286121 B.C. Ltd. as borrower for $4,000,000, with 622013 B.C. Ltd., TDP Holdings Ltd., Mr. Gaba, Mr. Bansal and Ms. Bala as guarantors. The loan was secured by four mortgages: one against the “128 Lands” owned by 1286121 B.C. Ltd., one against the “622 Lands”, one against the “TDP Lands”, and one against the “56 Avenue Lands” owned by Mr. Bansal and Ms. Bala. 1286121 B.C. Ltd. subsequently defaulted on the loan. The petitioner commenced foreclosure proceedings in December 2023. On 24 June 2024, the court granted an Order Nisi that included a personal judgment against Mr. Gaba and others in the amount of $5,062,277.76, plus costs. By the time of the hearing in this application, post-judgment interest of $488,944.39 had accrued, bringing the total outstanding judgment debt to $5,551,172.15 plus costs, with no payments having been made.
 

Foreclosure proceedings and underlying security
The properties originally securing the loan produced mixed results for the petitioner. The 622 Lands and TDP Lands were sold under foreclosure in other proceedings, where the petitioner’s mortgage ranked third; it received nothing from those sales. On the 128 Lands, the petitioner held a second mortgage behind a first mortgagee who had conduct of sale and had already listed the property for sale. The petitioner adduced a 12 September 2025 appraisal valuing the 128 Lands at $20,060,000 and asserted there would be no equity left for its second mortgage once the first mortgage, taxes and sale costs were paid.
Mr. Gaba responded with higher valuations: BC Assessment figures in the $25–26 million range and a 2023 appraisal valuing the 128 Lands at $30,550,000. He argued that averaging the two appraisals produced a value of $25,305,000, broadly consistent with BC Assessment, and that after accounting for the first mortgage, property tax arrears and commission, there should be enough equity (about $5,551,172.15) to satisfy the petitioner’s entire judgment. The court noted, however, that BC Assessment values are not admissible as proof of market value in civil litigation absent agreement, and that the petitioner’s appraisal was more recent and better reflected current market conditions.
With respect to the 56 Avenue Lands, the petitioner, holding a second mortgage and conduct of sale, anticipated approximately $1,700,000 in equity after payout of the first mortgage, a CRA judgment and sale costs. A February 2026 offer to purchase at $6,300,000 had been conditionally accepted, and the parties broadly agreed that roughly $1.7 million would be available to the petitioner, though Mr. Gaba maintained the offer was below the property’s fair market value and that a higher sale price should be attainable.
 

Execution proceedings against the Gaba properties
To address the anticipated shortfall, the petitioner turned to execution against land under the Court Order Enforcement Act. It registered its judgment on title to three properties owned personally by Mr. Gaba: the 144 Street Lands, the 49 Avenue Lands, and his Principal Residence on Prince Edward Street. A reference was ordered to the District Registrar under s. 94 of the COEA to investigate whether these lands were liable to be sold and to confirm Mr. Gaba’s interests. The Registrar’s Report, issued on 21 January 2026, found that all three Gaba Properties were liable to be sold and confirmed that Mr. Gaba was the sole registered owner of each. The report identified a single mortgage on each property (two in favour of TD Bank and one in favour of CIBC), along with two judgments registered against all three properties: the petitioner’s judgment of $5,062,277.76 plus interest and costs and a judgment in favour of 77 Investments Ltd. for $1,140,832.77 plus interest and costs. The Registrar concluded there was no priority between the two judgments, meaning any sale proceeds, after paying the mortgages and sale costs, would be shared pari passu between the petitioner and 77 Investments Ltd.
The petitioner then applied under s. 96 of the COEA and Rule 13-5 of the Supreme Court Civil Rules for an order approving the Registrar’s report, directing the sale of Mr. Gaba’s interests in the Gaba Properties, granting it exclusive conduct of sale, allowing sale via realtor rather than sheriff, and dispensing with statutory advertising requirements. It argued that even with expected recoveries from the 56 Avenue Lands and the Gaba Properties, a significant shortfall on its judgment would remain, and further delay risked dilution of its recovery due to additional encumbrances and potential new judgments from other creditors.
 

Valuation evidence and risk of shortfall
In support of the sale orders, the petitioner filed appraisals for the Gaba Properties prepared in February 2026, which gave market value ranges of $1,150,000–$1,275,000 for the 144 Street Lands, $1,500,000–$1,700,000 for the 49 Avenue Lands, and $3,550,000–$3,900,000 for the Principal Residence. Using the top of each range, and deducting the existing mortgages, estimated commissions and, in the case of the Principal Residence, the principal residence exemption amount, the petitioner estimated net proceeds of $716,006 for the 144 Street Lands, $600,650 for the 49 Avenue Lands and $2,280,900 for the Principal Residence. Because the petitioner and 77 Investments Ltd. would share the net proceeds pari passu, the petitioner calculated its share at approximately 82.51% of the net proceeds for each property. On that basis, the petitioner projected it would recover about $590,813.89 from the 144 Street Lands, $495,927.47 from the 49 Avenue Lands, and $1,882,088.89 from the Principal Residence, for a total of $2,968,830.25 across all three Gaba Properties. When combined with approximately $1,700,000 expected from the 56 Avenue Lands, the petitioner anticipated total recoveries in the range of $4,669,000, still well below the $5,551,172.15 owed on its judgment, leaving a shortfall of nearly $1,000,000. If sale of the Principal Residence were deferred while the other two Gaba Properties and the 56 Avenue Lands were sold, the projected shortfall would exceed $2,700,000.
Mr. Gaba challenged these projections by pointing to higher BC Assessment values for each Gaba Property and by emphasising the social and personal importance of the residences, especially his Principal Residence, where he lived with his wife and four children and where the family had deep roots. He also argued that the 128 Lands and 56 Avenue Lands provided sufficient security for the petitioner’s judgment, and alternatively suggested that, if any Gaba Properties were to be sold, the Principal Residence should benefit from a deferral under s. 96(2) of the COEA.
 

Balancing hardship and creditor prejudice under the Court Order Enforcement Act
Section 96(1) of the COEA mandates that once land is found liable to be sold, the court must make an order declaring what land or interest is liable and directing sale by the sheriff. Section 96(2), however, provides a discretion to defer sale of a debtor’s home, with or without conditions, having regard to the relative prejudice to debtor and creditor. Case law such as Kriegman v. Wilson confirms that courts may take into account the hardship to the debtor (including loss of a home and stability) while also considering the risk that delay, market changes, or further encumbrances might prejudice the creditor’s recovery.
In this case, the court accepted that the Registrar’s report should be approved, as no substantive objection was raised to it. The more difficult question was whether to order immediate sale of all three Gaba Properties, and in particular whether to defer sale of the Principal Residence. The judge noted the sharply divergent appraisals for the 128 Lands and the lack of detailed analysis of either appraisal, as well as the absence of concrete evidence regarding the listing history, pricing or offers on that property. The judge also emphasised that BC Assessment values could not be treated as admissible evidence of market value absent agreement, and that the petitioner’s appraisal of the 128 Lands was more recent than the valuation relied on by Mr. Gaba. On the available evidence, there remained a significant risk that reliance solely on eventual sales of the 128 Lands and 56 Avenue Lands would not be sufficient to pay out the petitioner’s judgment. At the same time, the court considered the extensive evidence of the hardship that a forced sale of the Principal Residence would cause to Mr. Gaba and his family, who had lived there for over two decades.
 

Court’s orders on sale and deferral
The court ultimately ordered that Mr. Gaba’s interests in the 144 Street Lands and the 49 Avenue Lands be sold, with the petitioner granted exclusive conduct of sale. Those properties did not qualify as the “home of the debtor” for the purpose of s. 96(2), as they were rental properties occupied by tenant families rather than by Mr. Gaba himself. The court authorised sale through a licensed realtor, listing on the Multiple Listing Service, and payment of typical realtor commissions out of sale proceeds, recognising that the COEA is not a complete code and that the court retains jurisdiction over conduct of sale. The judge also ordered that persons in possession of the properties, including tenants, must cooperate with inspections and showings and allow the posting of “for sale” signs, and dispensed with the statutory advertising requirements under s. 101 of the COEA on the basis that MLS marketing rendered those requirements unnecessary.
With respect to the Principal Residence, the court accepted that it was indeed the debtor’s home and that sale should be temporarily deferred under s. 96(2). However, the deferral was not open-ended. The judge granted a deferral of four months only, without imposing a payment plan or other terms, noting that Mr. Gaba had not shown he could make meaningful voluntary payments toward the judgment. The court reasoned that the evolving sales of the other properties—particularly the 128 Lands and 56 Avenue Lands—might bring greater clarity on whether the judgment was sufficiently secured, at which point the creditor could reassess its enforcement strategy. After the four-month deferral, the petitioner would be at liberty to re-apply for sale of the Principal Residence.
 

Outcome and significance
The court found largely in favour of the petitioner, 1063466 B.C. Ltd., approving the Registrar’s report, ordering the sale of the 144 Street Lands and 49 Avenue Lands under the petitioner’s conduct via realtor, dispensing with certain statutory advertising requirements, and granting the petitioner its costs of the application against Mr. Gaba. While the court did exercise its discretion to defer sale of the Principal Residence for four months in light of the hardship to the debtor and his family and the unsettled valuation evidence for the 128 Lands, this was a time-limited reprieve rather than a denial of the creditor’s enforcement rights. At the time of this decision, the total outstanding monetary judgment against Mr. Gaba and others remained $5,551,172.15 plus costs, and the court did not fix any specific dollar amount for sale proceeds or quantify the costs awarded on this application, leaving the exact total recovery in favour of the successful party, the petitioner, to be determined by future sales and subsequent cost assessment steps.