Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210226 DOCKET: M52227 (C69090)

Huscroft J.A. (Motion Judge)

BETWEEN

Republic Developments Inc. Applicant (Respondent/ Responding Party)

and

Muhammad Moeen Butt and Asma Moeen Butt Respondents (Appellants/ Moving Parties)

Counsel: Teheratul Haque and Obaidul Hoque, for the moving parties Matthew B. Lerner and Kate Costin, for the responding party

Heard by video conference: February 25, 2021

Endorsement

[1] The appellants bring an application to stay the judgment of the application judge granting the respondent specific performance of an agreement of purchase and sale of the appellant’s commercial property.

[2] The law governing the motion is not in dispute. There are three relevant factors to consider in determining whether a stay is in the interests of justice. First, whether, on a preliminary assessment, there is a serious question raised; second, whether the applicant would suffer irreparable harm if the application were refused; and third, whether the balance of convenience favours the granting or refusal of the stay.

[3] The appellants’ notice of appeal lists numerous errors. The most significant of these appears to be that the motion judge erred in refusing to order a trial for some or all of the issues raised on the application, even though the material facts and matters of credibility were in dispute. The appellants also allege a number of palpable and overriding errors. They say that they will suffer irreparable harm because their used car dealership will be shut down and the premises may be destroyed, preventing them from reopening if their appeal succeeds.

[4] The respondent says that the grounds of appeal are devoid of merit and that the stay should be refused on this basis. The respondent acknowledges that the respondents would suffer harm as a result of the closure of their car dealership but says that harm would be the result of their delay in moving their business after the agreement of purchase and sale was signed, over one year ago. The respondent says that the balance of convenience favours the appellants only if the appeal is expedited.

[5] The grounds of appeal are not well developed and some are unclear. I cannot say that they are strong, but that is not the test. The threshold on the first component of the test is a low one, and the authorities confirm that the court is not to review the merits of the appeal in detail. Several of the grounds may be hopeless but I cannot say that of all of the grounds are, nor can I conclude that the appeal is frivolous or vexatious. That is enough to satisfy the first branch of the test.

[6] Given the harm the appellants would suffer and that, as the respondent acknowledged, the balance of convenience favours the appellants if the appeal is expedited, I am prepared to grant a stay. This is contingent on the appeal being heard on an expedited basis, in order that the respondent is not prejudiced by any undue delay.

[7] Accordingly, the motion is granted and the decision is stayed pending appeal. Given the appellants’ stated agreement to expediting the appeal, I expect the parties to reach agreement on an expedited schedule to allow the appeal to be heard as soon as possible. If they cannot do so, I may be contacted to establish a schedule.

[8] The appellants are entitled to their costs, which are fixed in the amount of $3,000, all inclusive.

“Grant Huscroft J.A.”