DATE: 20050119

DOCKET: C41845

COURT OF APPEAL FOR ONTARIO

RE:

1247902 ONTARIO INC. (Plaintiff/Respondent) -and- CARLISLE POWER SYSTEMS LIMITED and RICHARD KUIPER (Defendant/Appellant)

BEFORE:

McMURTRY C.J.O., CATZMAN and LANG JJ.A.

COUNSEL:

Diane L. Evans

for the appellant

David A. Broad

for the respondent

HEARD AND RELEASED ORALLY:

January 13, 2005

On appeal from the order of the Divisional Court (Associate Chief Justice J. Douglas Cunningham and Justices Roydon Kealey and Helen M. Pierce) dated December 11, 2003.

E N D O R S E M E N T

[1] Assuming, without deciding, that RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 applies, on the first branch of that test, there is no serious issue to be tried with respect to the proceeding, which is execution on the default judgment. The default judgment, which was for about $57,000, stands unchallenged. In more than twelve years, Mr. Kuiper has brought no motion to set it aside. It must be assumed that even Mr. Kuiper accepts the facts underlying that judgment.

[2] On the second branch of the RJR-MacDonald test, irreparable harm will not result if a stay is refused. Mr. Kuiper can simply pay the outstanding unchallenged judgment and thereby maintain the property. Counsel acknowledges that there is no evidence of any particular vulnerability on Mr. Kuiper’s part that suggests any inability to otherwise satisfy the default judgment. Moreover, as found by the motion judge, a finding upheld by the Divisional Court, the execution creditor has not engaged in oppressive conduct. Satisfaction of the default judgment would not render the issues in other outstanding litigation moot.

[3] Finally, the balance of convenience favours a refusal of the stay. The importance of the court’s process, being final and enforceable, supports such a refusal.

[4] Accordingly, whatever the appropriate test may be determined to be in other cases, in this case, on any test, the appellant is not entitled to a stay. We see no error in the result reached by the Divisional Court, and agree with that court, that the motion judge failed to give adequate weight to the appropriate factors.

[5] The appeal is dismissed with costs to the respondent fixed in the amount of $7,500, plus disbursements and G.S.T.

“R. McMurtry C.J.O.”

“M.A. Catzman J.A.”

“S.E. Lang J.A.”