Court of Appeal for Ontario

Date: 2017-06-27

Docket: M47973 (C63870)

Judge: Brown J.A. (In Chambers)

Between

Lynn Tisi Applicant (Appellant) (Moving Party)

and

Claude St. Amand Respondent (Respondent) (Responding Party)

Counsel

Derek A. Schmuck, for the moving party

Duncan M. Macfarlane, for the responding party

Heard: June 23, 2017

Reasons for Decision

A. Motion for a Stay Pending Appeal

[1] The parties dispute the validity and enforceability of an Agreement of Purchase and Sale dated November 2, 2016 (the "Agreement") for the purchase of a residential house by the moving party appellant, Lynn Tisi, from the respondent, Claude St. Amand. As a result of their dispute, both commenced applications: Ms. Tisi sought specific performance of the Agreement, with a claim for damages in lieu; Mr. St. Amand sought a declaration the Agreement was null and void, together with an injunction prohibiting Ms. Tisi from encumbering title to the property. Ms. Tisi obtained and registered a certificate of pending litigation ("CPL") against the property prior to the hearing of the applications.

[2] By reasons dated May 19, 2017, the application judge found the parties were not ad idem on the essential elements of the contract and declared no valid agreement of purchase and sale was entered into by them. She ordered Mr. St. Amand to return the $10,000 deposit to Ms. Tisi. He did, but Ms. Tisi has not cashed the cheque. The application judge also ordered Ms. Tisi to discharge the certificate of pending litigation ("CPL") she registered against the property. Ms. Tisi has not.

[3] Instead, Ms. Tisi filed a notice of appeal dated June 5, 2017. She now moves for a stay pending appeal of para. 3 of the Judgment directing her to discharge the CPL.

B. Governing Principles

[4] The principles governing the granting of a stay pending appeal are those set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334, as explained and applied by this court in several decisions, including BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, at paras. 18 and 19, and Yaiguaje v. Chevron Corporation, 2014 ONCA 40, at para. 19. The over-arching principle is that the court must decide whether the interests of justice call for a stay.

C. Analysis

Serious Question for Appeal

[5] The party seeking a stay must demonstrate her appeal raises serious issues for appeal. The threshold to overcome is a low one. Although the grounds of appeal advanced by Ms. Tisi in her notice of appeal largely concern questions of fact or mixed fact and law where a deferential standard of review applies, I am satisfied she has met the low threshold for establishing a serious question for appeal.

Irreparable Harm

[6] Under the second element of the RJR-MacDonald test, Ms. Tisi must establish she will suffer irreparable harm should a stay not be granted. Generally, demonstrating irreparable harm requires the moving party to establish she will suffer a loss not quantifiable in monetary terms.

[7] In the present case, Ms. Tisi sought specific performance of the Agreement or, in the alternative, damages in lieu thereof. Specific performance should not be granted as a matter of course absent evidence that the property is unique to the extent that its substitute would not be readily available: Semelhago v. Paramadevan, [1996] 2 S.C.R. 415, at para. 22.

[8] In an affidavit on the application, Ms. Tisi deposed the house at issue is a custom-built one. The respondent did not file any evidence disputing that characterization. Given Ms. Tisi's evidence, I am satisfied she has demonstrated she would suffer irreparable harm should a stay not be granted.

Balance of Convenience

[9] The balance of convenience branch of the stay test requires a court to consider and balance the respective harm to each party from the grant or refusal of a stay.

[10] Ms. Tisi has filed evidence that Mr. St. Amand was "wrapping things up" in Welland and moving further north in Ontario. As well, she has filed the results of some title searches that disclose Mr. St. Amand sold three properties in the Niagara area during May 2017. This evidence may well support an inference that Mr. St. Amand is wrapping up his business in the Niagara area, but it does not suggest he lacks assets in Ontario.

[11] In his factum, Mr. St. Amand argues the CPL places an unfair burden on him by preventing the sale of the house and "accounting to his mortgagee and other creditors." Although he did not file evidence to support those submissions, it is common sense that the house likely will remain unsold as long as a CPL is registered against title.

[12] That said, I am puzzled by the lack of a responding affidavit from Mr. St. Amand on this motion. In his February affidavit on the application, he talked about the need for his business to close the sale to Ms. Tisi by mid-March of this year. Yet, he has not filed any evidence about the current state of affairs regarding the house – Is it finished? Is he trying to sell it? – or about the effect of the CPL on his business. Simply put, there is a lack of evidence about what prejudice, if any, the continued registration of the CPL is causing Mr. St. Amand.

[13] When one adds to this state of the record Ms. Tisi's willingness to expedite her appeal, I see the balance of convenience tipping in her favour.

Conclusion

[14] Ms. Tisi has met the low threshold of establishing a serious question on appeal, she has demonstrated some irreparable harm, and the balance of convenience tips in her favour. The over-arching principle is that the court must decide whether the interests of justice call for a stay. In the present circumstances, I am satisfied Ms. Tisi has demonstrated a stay should be granted.

D. Disposition

[15] For the reasons set out above, I grant the motion. I order Ms. Tisi to perfect her appeal by July 17, 2017, following which the parties shall secure an expedited date for the hearing of this appeal.

[16] I fix the costs of this motion at $3,000, payable in the cause of the appeal.

"David Brown J.A."