DATE: 20031205

DOCKET: M30208 (C40392)

COURT OF APPEAL FOR ONTARIO

RE: EXEL GLOBAL LOGISTICS (CANADA) INC. (Applicant/ Respondent in Appeal) –and– VICENZI BISCOTTI S.P.A. and VICENZI CANADA CORPORATION (Respondents/ Appellants in Appeal)

BEFORE: GOUDGE, MacPHERSON and CRONK JJ.A.

COUNSEL: Edward M. Hyer and Christine Kish for the appellant John Polyzogopoulos and Lea Nebel for the respondents

HEARD: December 2, 2003

RELEASED ORALLY: December 2, 2003

E N D O R S E M E N T

[1] The motions judge concluded that the order of Lax J. dated July 23, 2003 was not an order for the payment of money attracting an automatic stay pending appeal under rule 63.01 of the Rules of Civil Procedure. Her conclusion was based on the decision of Rosenberg J. in Lee v. Lee, [1995] O.J. No. 1196 (Div. Ct.).

[2] With respect to the motions judge, we conclude that Lee v. Lee is distinguishable on two grounds: (1) unlike this case, the holder of the funds in Lee was an independent third party; there was no lis between the holder of the funds and the claimant to the funds; and (2) more importantly, on the record before us, it appears that there may have been a dispute before Lax J. concerning the legitimacy and quantum of the debt alleged to be owing.

[3] In addition, in practical terms, the order of Lax J. required the payment of money by one party to the dispute to the other party to the dispute, through the solicitors of the payee.

[4] For these reasons, we allow the appeal from the order of Gillese J.A. dated July 31, 2003, set aside that order and direct, in its stead, that the order of Lax J. is stayed pending appeal. The costs award of Gillese J.A., in the amount of $2,000, is also set aside. The applicant is entitled to its costs of this appeal on a partial indemnity basis, fixed in the amount of $2,000, inclusive of disbursements and Goods and Services Tax.

"S.T. Goudge J.A."

"J.C. MacPherson J.A."

"E.A. Cronk J.A."