Richard B. Swan

The appellants appealed a motion judge's decision which found that the respondent did not acquiesce in an alleged conflict of interest and breach of fiduciary duty by her former solicitor.

The Court of Appeal allowed the appeal, finding that the respondent's active participation in 19 days of assessment hearings over 4.5 years constituted acquiescence.

The Court held that it was not open to her to raise the issue for the first time after such a delay, which caused demonstrable prejudice to the assessment process and the solicitor.

The assessment was ordered to proceed without consideration of the conflict of interest allegations.

The respondents in an appeal brought a motion to set aside an order dismissing their motion for interim costs.

They sought $5,000,000 to fund their legal expenses, arguing they could not afford to respond to the appeal and that the appellants were unfairly using corporate assets to fund their own litigation.

The Court of Appeal dismissed the motion, finding that the request for interim costs was tantamount to a motion to lift the automatic stay of the money judgment, which had already been denied.

The court held that while section 134(2) of the Courts of Justice Act provides broad jurisdiction to make interim orders to prevent prejudice pending appeal, the respondents failed to demonstrate that the appellants' use of corporate assets prevented them from effectively responding to the appeal or dissipated assets so as to undermine the effectiveness of any order on appeal.

In a complex family business dispute, the respondents moved to lift the automatic stay of substantial money judgments pending appeal, or alternatively for interim costs or security for costs.

The appellants brought a cross-motion to stay certain mandatory tracing orders pending appeal.

The Court of Appeal dismissed both motions.

The court found the appeals were not devoid of merit and the respondents failed to establish sufficient hardship or risk of asset dissipation to justify lifting the stay.

The court also found the appellants failed to demonstrate irreparable harm to justify staying the mandatory tracing orders.