J.B. Casey

On a motion for a stay pending appeal in a foreign arbitral award enforcement proceeding, the moving party argued that the appealed order was automatically stayed as an order for the payment of money.

The court rejected that submission, holding that the order merely declared an equitable interest in shares and permitted seizure of monies held in trust, but did not require the moving party to pay or repay money.

Applying the stay framework, the court found a serious issue and irreparable harm to the moving party if funds were paid out to an assetless foreign respondent, while also recognizing legally cognizable prejudice to the respondent from potential sharing with other execution creditors under s. 4 of the Creditors Relief Act.

The balance of convenience favoured a conditional stay, requiring the moving party to file a letter of credit in the amount of the outstanding judgment within 15 days.

The appellant appealed an order regarding standing under Rule 38.11.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the appellant was at best contingently affected by the recognition order and thus did not have standing.

Costs were awarded to the respondent in the amount of $20,000.