Can a court order the sale of a company's principal asset in a derivative action to break corporate deadlock?

In a derivative action, can the court order the sale of a company's principal asset pursuant to s. 324 of the Business Corporations Act?

The BCSC concluded it could not in Phoenix Homes Limited v. Takhar, 2017 BCSC 699.  In the face of a corporate deadlock, a company's principal asset could only sold pursuant to the terms of s. 324 of the BCA, which did not apply to a derivative proceeding. 

Phoenix Homes was owned by two shareholders and was deadlocked.  One of the shareholders obtained leave to commence a derivative action in the name of the company against the other for misappropriation of business opportunities.

The petitioner applied to have the court sell the company's principal asset.  The petitioner alleged the respondent had caused the company to enter into a sale agreement with a third party for that project at less than fair market value.  The petitioner wanted the court to order the sale of the land to take advantage of current real estate conditions.  The third party had filed a claim seeking specific performance of the agreement. 

The petitioner argued that the court could order a sale despite the action for specific performance on the basis that the third party action had little prospect of success.  The issue with this argument was that the court, acting pursuant to Rule 13-5, did not have discretion to make, in effect, a final decision on the merits of the specific performance claim at this stage. 

The court held that an application pursuant to s. 324 would only be available in a liquidation or dissolution of the company after the derivative proceeding.  Aside from a liquidation or dissolution, s. 324 was only available in an oppression proceeding.  The petitioner shareholder's oppression claim had already been dismissed by a prior decision.