Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211223 DOCKET: M53022 (M52989)

Sossin J.A. (Motion Judge)

BETWEEN

Sarah Nahum Plaintiff (Responding Party)

and

Honeycomb Hospitality Inc. Defendant (Moving Party)

Counsel: Brett D. Moldaver, for the moving party Simon Pelsmakher and Andrew Monkhouse, for the responding party

Heard: December 22, 2021 by video conference

Endorsement

[1] The moving party, Honeycomb Hospitality Inc. (“Honeycomb”) seeks a stay pending its application for leave to appeal to the Court of Appeal from a decision of the Divisional Court dated November 15, 2021, dismissing the moving party’s appeal of the summary judgment ordered by Akbarali J., dated February 26, 2021, granting the responding party, Sarah Nahum (“Ms. Nahum”), judgment on her wrongful dismissal claim and damages in the amount of $34,194.87 and costs of $22,000.

[2] In her decision granting summary judgment, Akbarali J. found that Ms. Nahum’s pregnancy was a consideration in her finding of the notice period damages, and this aspect of the decision was affirmed by the Divisional Court.

[3] The parties agree that the test on a motion for a stay is that set out by this court in J.P.B. v. C.B., 2016 ONCA 996, at para. 14, which incorporated the three-part test for injunctive relief as established in RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334, as the test for granting a stay of a decision pending appeal under r. 63.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194: first, the court must make a preliminary assessment of the merits of the case to determine if there is a serious issue to be tried; second, the court must determine whether the moving party would suffer irreparable harm if the application were refused; and third, the court must consider which of the parties would suffer greater harm if the application for the stay is granted or refused.

[4] Turning to the first consideration, Honeycomb argues that the question of whether pregnancy can play a role in the factors to be considered in assessing wrongful dismissal damages under the test set out in Bardal v. Globe and Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.), particularly where the employer contends it did not know of the employee’s pregnancy, is a serious issue.

[5] Ms. Nahum takes issue with this characterization of the issue, and argues that this case is one of many applications of the contextual Bardal factors and does not raise a serious issue.

[6] I am satisfied the low threshold on the first prong of the test for a stay has been met by Honeycomb.

[7] With respect to irreparable harm, Honeycomb refers to the financial hardship of having to pay the damages and costs prior to the determination of leave to appeal, and if granted, the appeal on the merits.

[8] Ms. Nahum argues that Honeycomb has not met the threshold for establishing irreparable harm.

[9] I agree. Honeycomb has not provided evidence that it would suffer irreparable harm if required to pay the damages award and costs award to its solicitors in trust pending the outcome of the appeal.

[10] While the conclusion on irreparable harm is a sufficient basis on which to dismiss the motion, I would also be prepared to conclude that the balance of convenience favours not granting the stay.

[11] For these reasons, the motion for a stay is denied.

[12] Honeycomb is ordered to pay the damages and costs award associated with this matter to its solicitors in trust, pending the outcome of the appeal, within 30 days of the release of this decision.

[13] Ms. Nahum is entitled to costs of this motion. She seeks $6,881.70 in costs on a partial indemnity basis. This is almost double the $3,018.44 in partial indemnity costs that would have been sought by Honeycomb had it been successful on the motion.

[14] In the circumstances of this motion, I find an award of $5,000 to be fair and reasonable. This award of costs is payable by Honeycomb to Ms. Nahum within 30 days of the release of this decision.