M. Kate Stephenson

The moving parties sought to vacate a stay pending appeal after the Divisional Court held that the regulatory definition of "spouse" under social assistance legislation violated s. 15 of the Charter and was not saved by s. 1.

The Court of Appeal held that the governing test for a stay required the party seeking the stay to establish irreparable harm if relief was refused.

Because the prior motion judge had found, on evidence reasonably supporting that conclusion, that the Crown would not suffer irreparable harm, the Crown was not entitled to a stay pending appeal.

The motion to vary was granted, the stay was set aside, and costs were awarded to the moving parties.

In a winding-up of a charitable corporation facing extensive institutional abuse claims, the liquidator sought appellate clarification on whether assets allegedly held on special purpose charitable trusts were shielded from tort creditors whose claims arose elsewhere within the charity’s operations.

The court held that Canadian law recognizes no charitable immunity from tort liability and rejects any trust-fund theory that would immunize charitable assets from execution.

In the winding-up context, all assets of the charitable corporation, whether beneficially owned or held on trust for charitable purposes, were available to satisfy legitimate tort claims.

The court also struck out a paragraph of the order suggesting it was not intended to affect related British Columbia proceedings, while confirming that the British Columbia court remained free to make its own factual findings on ownership issues.