ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 039/11
DATE: 20140226
B E T W E E N:
Sarah Gray and Mark Gray
Joseph Obagi, for the Plaintiffs/Responding Party
Plaintiffs/Responding Party
- and -
Kevin Guerard and Cynthia Guerard and Magenta Mortgage Investment Corporation and The Canada Trust Company
Terrance Green, for the Defendants/Moving Party
Defendants/Moving Party
HEARD: February 4, 2014 (at Perth)
RULING ON MOTION
Johnston, J.
[1] This is a motion commenced by the Defendants/Moving Party, Kevin Guerard and Cynthia Guerard (“the Defendants”), pursuant to Rule 63.02(1) of the Rules of Civil Procedure, seeking an Order granting a stay pending appeal of the decision of Justice Abrams, dated October 18, 2013.
[2] The Plaintiffs/Responding Party, Sarah Gray and Mark Gray (the “Plaintiffs”) currently reside and are owners of the property known municipally as 285 Hope Street, Almonte, Ontario. The Plaintiffs purchased their property on June 28, 2002.
[3] The Defendants are the owners of the property known municipally as 293 Hope Street, Almonte, Ontario. They purchased their property in 2007.
[4] The Plaintiffs offered to purchase a portion of the land, including the subject land, from the Defendants. This offer was rejected.
[5] The Plaintiffs filed an Application on January 11th, 2011, which was converted to an Action on June 29, 2012, by Order of Justice Pedlar.
[6] The Plaintiffs claimed by adverse possession, a strip of land measuring 2.03 metres wide and 13.75 metres in length between the subject properties. The parties attended at trial before Justice Abrams on April 22, 23 and 24, 2013.
[7] On October 18th, 2013, Justice Abrams released his Reasons for Decision in favour of the Plaintiffs. Title of the Defendants to the disputed properties was extinguished and an Order vesting title to the Plaintiffs was granted.
[8] The Defendants served the Plaintiffs with a Notice of Appeal and Appellants’ Certificate on November 13, 2013.
Grounds of Appeal
[9] The Defendants seek to appeal Justice Abrams’ decision on four grounds:
The trial judge erred by failing to observe the test requirements for adverse possession.
The trial judge erred by basing his decision on an erroneous findings of fact that he made in a perverse or capricious manner or without regard for the material before him.
The trial judge erred by failing to observe a principle of natural justice as the Appellants have the right to protect the land owned and defend their claim of ownership of such property.
The trial judge erred by failing to consider the elements for adverse possession under the Real Property Limitations Act R.S.O. 1990.
Jurisdiction
[10] Both parties agree that the Ontario Superior Court of Justice has the jurisdiction to hear this motion for stay pending appeal. The appellants have chosen to commence this motion in the Superior Court.
The Law
[11] The parties agree there is a three-pronged test used by the court in exercising discretion as to whether to stay an order pending appeal. The Defendants must satisfy the court that there is a serious issue to be decided on the appeal, that immediate compliance with the order under appeal would cause irreparable harm to the Defendants and that the balance of convenience favours a stay.
[12] Counsel for the responding parties agrees that second and third tests have been made out. Specifically, it is agreed that if the vesting order of Justice Abrams is not stayed, the appeal will become a moot point and, therefore, there is irreparable harm. Given the significant consequences to the Defendants, it is agreed that the third prong of the test is made out. Accordingly, the only issue to decide is whether or not the Defendants have satisfied the court that it ought to exercise discretion and that there is a “serious issue” to be tried.
[13] Justice Doherty defined “serious issue” in the context of a motion seeking a stay of an order pending appeal in Fiala Estate v. Hamilton [2008] O.J. No. 4653 at paragraph 15:
In my view, in the context of an appeal, a “serious issue” is a ground of appeal that has a reasonable prospect of success. Certainly, the defendants need not convince me they will win the appeal, or even that they will probably win the appeal. They must, however, satisfy me that they have some reasonable prospect of success.
[14] The question before me is whether or not the Defendants have established that there is some reasonable prospect of success. For the following reasons, I find that the Defendants have not convinced the court that there is a serious issue to be tried on the appeal. The first and fourth grounds of appeal are essentially the same, namely, that the trial judge failed to apply the proper test in deciding the issue of “adverse possession”. In oral submissions, counsel for the Defendants argues that the triable issue arises from the trial judge’s interpretation of the Real Property Limitations Act. I agree with counsel for the Plaintiffs that the Defendants have an obligation on this motion to “put forward their best foot”. Bold assertions are not sufficient to establish there is a reasonable prospect of success of the appeal. Justice Abrams set out the law as it applies to this area in paragraph 72, 73 and 74 of his decision. The Defendants fail to provide any substance to their allegation that the trial judge failed to observe the proper test requirements or failed to consider the elements for adverse possession.
[15] The second ground of appeal alleges that the trial judge made erroneous findings of fact, made in a “perverse or capricious manner”, or without regard for the material before him. Again, I reject this argument as a bald assertion without foundation. A clear reading of Justice Abrams’ decision indicates the evidence he relied upon to reach the conclusions that he did. The trial judge relied on several witnesses. There was ample evidence before the trial judge permitting him to come to the conclusions on the facts that he did.
[16] The Defendants further allege that the trial judge erred by failing to observe a principle of natural justice. The Defendants make a bald assertion, again without providing a foundation for this ground. The trial judge heard evidence over a three day period, followed by submissions from counsel. There is no indication on the face of the record supporting the ground that the trial judge failed to observe any principle of natural justice. The appellants fail to specifically identify the allegation of violation of a principle of natural justice.
[17] I agree with counsel for the Defendants that the first prong of the three-prong test should not be onerous. However, case law is clear that the onus is upon the Defendants to establish there is some reasonable prospect of the appeal succeeding. I agree with Justice Doherty that the Defendants need not convince the court that they will win the appeal, or even that they will probably win the appeal. They must, however, satisfy the court that there is some reasonable prospect of success. For the reasons aforesaid, they fail to do so.
[18] This court does not lightly deny this motion. The court is well aware of the finality of this matter in light of the ruling, given the circumstances of the case. However, after significant review of the motion material and the trial judge’s decision, the court is left with no other conclusion that the Defendants’ Notice of Appeal has not met the required test. Accordingly, the motion is dismissed.
[19] Counsel may provide written submissions, limited to two pages, together with a Bill of Costs, in the event the issue of costs cannot be resolved. Counsel for the Defendants shall serve and file material within 30 days and the Plaintiffs’ counsel shall be entitled to a similar response within 21 days.
Mr. Justice John M. Johnston
Released: February 26, 2014
COURT FILE NO.: 039/11
DATE: February 26, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Sarah Gray and Mark Gray
Plaintiffs/Responding Party
- and –
Kevin Guerard and Cynthia Guerard and Magenta Mortgage Investment Corporation and The Canada Trust Company
Defendants/Moving Party
RULING ON MOTION
Johnston, J.
Released: February 26, 2014