Court of Appeal for Ontario

Citation: Picavet v. Clute, 2012 ONCA 441

Date: 20120621

Docket: M41440 (C55469)

Feldman J.A. (Chambers)

Between

Michael John Picavet

Appellant (Plaintiff)

and

Elizabeth Pearl Marie Clute, Nicole Marie Stella and Lormel Developments (Bradford) Ltd.

Respondents (Defendants)

Counsel:

Patrick Summers, for the appellant

Duncan Boswell, for the respondents

Heard: June 20, 2012

On appeal from the judgment of Justice Susan E. Healey of the Superior court of Justice, dated April 11, 2012.

ENDORSEMENT

[1] The appellant has appealed the judgment of the trial judge that dismissed his action against his mother, the respondent Clute. He claimed that they made a contract wherein she agreed to give him a significant portion of her land. When that land was sold, she took back a vendor take back mortgage. The VTB was later paid in full and on consent, the proceeds were held in trust by the respondent’s solicitors pending the outcome of the trial. As part of the order dismissing the action, the trial judge also ordered that after 30 days, the VTB funds could be paid out of trust to the respondent.

[2] On this motion the appellant asks in the alternative for: (1) in effect a declaration that Rule 63.01 automatically stays the order of the trial judge for the payment out of trust of the VTB funds; or (2) in the alternative, if that rule does not apply, then for an order under Rule 63.02 for a stay of that part of the order pending appeal.

Automatic Stay – Rule 63.01

[3] Rule 63.01 provides an automatic stay upon appeal of “any provision of the order for the payment of money”. There was no order for the payment of money made by the trial judge in this case – the action was dismissed. An order for the “payment out” of a fund that is being held pending the outcome of the action is not an order referred to in the Rule unless that fund is a judgment debt created by the order of the trial judge.

[4] This point was addressed by Rosenberg J.A. in 1013799 Ontario v. Kent Line International Ltd., [2002] O.J. No. 4214 (C.A.) In that case, the plaintiff’s action against the defendant was successful. When the defendant appealed, it sought a stay of the order for “payment out” to the plaintiff of the money that had been paid in by the plaintiff for security for costs of the trial. The motion for a stay on appeal was dismissed. The plaintiff had won the trial. There was no longer any need for the winning party, now the respondent on the appeal, to post security for costs. The order for “payment out” was a housekeeping matter.

[5] The same analysis applies to the order for “payment out” in this case. By dismissing the action, the trial judge confirmed that the money held in trust belonged to the respondent and was not payable to the plaintiff. The order for “payment out” merely facilitated that finding.

Should the Court Order a Stay?

[6] In the alternative, the appellant asks this court to order a stay, pending the outcome of the appeal, of the order to pay out to the respondent the vendor take back mortgage funds being held by the respondent’s solicitors.

[7] The court applies the three part test also applicable to an interlocutory injunction:

(a) serious issue on the appeal;

(b) will there be irreparable harm if the stay is not granted; and

(c) the balance of convenience.

[8] I am not satisfied that the appellant has met its onus to show that any of the three criteria have been met:

(a) The appellant submits that the trial judge was focused on the wrong time period for when the contract was formed and that she did not appreciate the effect of the 467 spread sheet. The trial judge’s reasons are lengthy and thorough. She made detailed findings of fact and mixed fact and law, holding that there was no intent to contract, no agreed upon terms of a contract, and that instead, the respondent had agreed to give the appellant a gift, which is an unenforceable promise. Based on this record, it would be difficult to show on appeal that the trial judge made a reversible error.

(b) There is also no indication of irreparable harm to the appellant. There is no basis to conclude that the respondent is going to move the funds off-shore and, in any event, she appears to be a wealthy woman, able to satisfy a judgment.

(c) Finally, regarding the balance of convenience, the respondent argues that although she does not need the money, it is hers and she is entitled to it at this point. I agree.

Conclusion

[9] For these reasons, the motion is dismissed with costs to the respondent fixed at $7,500, inclusive of disbursements and H.S.T.

“K. Feldman J.A.”