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Secured creditors’ rights will not be extinguished by recharacterizing collateral after default

As is well-known in the realm of Canada’s secured transaction law, both the secured party and the debtor are entitled to a number of rights and also owe certain obligations to the other party, pursuant to contract and statute. Such rights and obligations are in place for the objectives of fairness, transparency and commercial certainty, among others. The recent decision of Merchant Growth Asset Financing Ltd. v. Pyke,[1] , shows that sometimes one party (in this case, the defaulting debtor) may attempt to diminish the rights and remedies available to the other party by erroneously asserting their own rights under the statute. Horsman J. of the Supreme Court of British Columbia was quick to shut down such an assertion in her summary judgment in favour of the plaintiff and, in doing so, created a precedent for a case that addresses the operation of creditors’ rights when the debtor attempts to recharacterize the nature of collateral after default.