NEWMARKET

COURT FILE NO.: FC-13-43208-00

DATE: 20140814

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: MICHELLE MURPHY, Applicant

and

JOHN WHEELER, Respondent

BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY

COUNSEL: Mark Jacobson, for the Applicant

James Diamond, for the Non-Party, 1269825 Ontario Inc.

James P. McReynolds, for the Non-Party, Victoria Wood (Main Square) Inc.

HEARD: by telephone conference August 13, 2014

ENDORSEMENT

[1] A telephone conference was convened at the request of Mr. Diamond, an issue having arisen between counsel as to whether my order of August 20, 2013 was stayed as a result of my further endorsement released July 4, 2014, by which this court granted the non-party, 1269825 Ontario Inc. (“126”) leave to bring a motion under rule 25(19) of the Family Law Rules. I am advised that motion is now scheduled for November 12, 2014.

[2] Those opposing, being the applicant and the non-party Victoria Wood (Main Square) Inc., argue that, as the endorsement is silent as to a stay of the August 20 order, the court is now functus with respect to the issue of a stay. It is also argued that rule 63.02 applies such that the jurisdiction to grant a stay now resides with the Divisional Court. Further, they argue that there is insufficient evidence to meet the test for granting a stay. Finally, it is submitted that an examination of Ms. Daley, a step which was granted under the August 20 order, is required to provide the court with evidence on the issue of the notice provided to 126 of the motion heard by Justice McGee on May 31, 2013.

[3] In the motion seeking leave that was before me on July 3, 2014, 126 sought an order staying both the order of May 31, 2013 and the order of August 20, 2013.

[4] I remark first that, although not expressly ordered, it was to be inferred from the endorsement of July 4, 2014 that a stay of both orders was to be in effect pending the motion now scheduled for November 12. It intuitively makes little sense for 126 to be required to comply with the terms of what this court described as an “extremely onerous order” after leave had been given to bring a motion to attempt to change it.

[5] However, the issue now having been raised as to whether this court had, or now has, jurisdiction to grant a stay, I will address such issue.

[6] It was argued that the case of Bijowski v. Caicco (1985), 1985 4996 (ON CA), 45 R.F.L. (2d) 266 (Ont. C.A.) stands for the proposition that rule 63.02 limits the jurisdiction of the trial court, or the court whose decision is to be appealed, to grant a stay only during the time period prior to an appeal being launched, whether by service of the Notice of Appeal or motion for leave.

[7] Bijowsky was decided under former rule 63.02, which read:

(1) An order, whether final or interlocutory, may be stayed on such terms as are just by

(a) an order of the Court whose decision is to be appealed, but the stay expires,

(i) when the time for delivery of a motion or motion for leave to appeal or notice of appeal expires or

(ii) when a notice of motion for leave to appeal or notice of appeal is delivered whichever is earlier or

(b) an order of a judge of the Court to which a motion for leave to appeal has been made or an appeal has been taken

(2) A stay granted under subrule (1) may be set aside or varied on such terms as are just, by a judge of the court to which a motion for leave to appeal may or has been made or to which an appeal may be or has been taken.

[8] The relevant sections of rule 63.02 now read as follows:

(1) An interlocutory or final order may be stayed on such terms as are just,

(a) by an order of the court whose decision is to be appealed;

(b) by an order of a judge of the court to which a motion for leave to appeal or no notice of appeal, as the case may be is delivered and the time for the delivery of the relevant notice has expired.

(2) A stay granted under clause (1)(a) expires if no notice of motion for leave to appeal or no notice of appeal, as the case may be is delivered and the time for the delivery of the relevant notice has expired.

(3) A stay granted under subrule (1) may be set aside or varied on such terms as are just by a judge of the court to which a motion for leave to appeal may b or has been made or to which an appeal may be or has been taken.

[9] There are now two opposing decisions that have considered the effect of the amendment to rule 63.02 and whether Bijowski still applies. In Coccimiglio v. 1037687 Ontario Ltd., [1999] O.J. No. 39997, (1999) 45 C.P.C. (4th) 128 (Ont. S.C.J.), at para. 12, Kozak J. stated:

This court is of the view that there is nothing in the revised wording of Rule 63.02 which alters the restricted jurisdiction of this court to stay the final order of McCartney J. The notice of appeal to the Court of Appeal having been launched prior to the hearing of this motion, this court is clearly without jurisdiction to entertain the said motion.

[10] However, in Hanemaayer v. Freure, [2004] O.J. No. 3330, (Ont. S.C.J.), at para. 29, Reilly J. expressed a differing view:

With the utmost respect to my learned colleague, Mr. Justice Kozak, I disagree with his conclusion. The amendments to Rule 63.02 did indeed create a new, more rational and more efficient approach to granting a stay by order than existed under the old rule. Under the old rule, if the stay was to be granted, two motions were necessary pending the termination of the appeal. An initial motion before the trial court prior to the appeal being launched and then a subsequent motion before the appeal court upon commencement of the appeal. Under the new scheme, two motions are not necessary. An order granted by the trial court prior to the appeal being launched does not automatically expire with the commencement of the appeal but continues unless set aside or varied by a judge of the appeal court. So too does it provide for more expeditious and less expensive justice for the parties to be able to address the issue of a stay before the trial court locally as opposed to seeking such relief from the Court of Appeal. Either party is of course free to seek such relief from the appeal court and only the appeal court may set aside or vary a stay, whether granted by the trial court or by a judge of the appeal court. In my view, the plain reading of subrule 63.02(1) provides for a concurrent jurisdiction accorded to the trial court and a judge of the appeal court. There is nothing in the subrule which permits an inference that the trial court loses jurisdiction to direct a stay once the appeal is launched.

[11] I favour the view of Reilly J., that the changes to rule 63.02 since Bijowski was decided now allow the court whose decision is under appeal to stay an order, which power is concurrent with the jurisdiction of the appeal court to grant a stay. Therefore, at the time my decision was rendered on July 4, 2004, granting leave to 126 to bring the rule 25(19) motion, this court had jurisdiction to impose a stay despite an appeal having been started months earlier.

[12] With respect to the additional argument, that the court is now functus because the order has been approved and issued, I disagree. Mr. Diamond seeks clarification of the effect of the order of July 4, 2014. While the granting of a stay by this court should have been expressly ordered, the effect was that a stay of both orders was intended.

[13] In deciding in whether a stay is appropriate, on the motion Mr. McReynolds relied on 820099 Ontario Inc. v. Harold E. Ballard Ltd., 1991 Carswell Ont. 427 (Div. Ct.) for the proposition that the court is to apply a balance of convenience test, similar to that on an interlocutory injunction, but with the greatest weight being given to the fact that the adjudication has already taken place and the order is regarded as prima facie correct.

[14] If a stay had not been granted, the preponderance of prejudice would enure to 126. If expected to comply with the very order that it challenges, 126’s legal fees would quickly mount as it complied with extensive disclosure requirements and as it underwent the examination of one of its representatives. 126 is not a party and there is at this point no case against it for which it can answer, and yet it would be required to produce confidential financial and corporate documentation if the stay is not in effect. In all of the circumstances of this case, it is in the interest of justice that a stay be ordered.

[15] The opposing parties argue that they should still have limited examination of Ms. Daley on the issue of service or notice prior to the May 31, 2013 hearing before McGee J. They have not brought a motion under rule 20(5) of the Family Law Rules for such an order, nor is there evidence that they have complied with rule 20(9), which is the prerequisite for granting such an order.

[16] Accordingly, this court orders that there shall be a stay of the order of May 31, 2013 and the order of August 20, 2013 until such time as 126’s motion to set aside or change those orders is determined.

HEALEY J.

Released: August 14, 2014