COURT FILE NO.: CV-18-0590-00
DATE: 2023-01-31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Lisa Laurette Gauthier, Estate Trustee for the Estate of Yvan Gauthier
J. Lester, for the Responding Party, Estate of Yvan Gauthier
Plaintiff/Defendant by Counterclaim (Responding Party)
- and -
John Harold White
M. Cupello, for the Moving Party, John White
Defendant/Plaintiff by Counterclaim (Moving Party)
HEARD: January 26th, 2023, at Thunder Bay, Ontario
Mr. Justice W. D. Newton
Reasons On Motion
[1] By reasons dated April 28, 2022[^1], I vested title to real estate previously owned by Mr. White to Mr. Gauthier and also ordered that Mr. White had 120 days to remove his scrap from the property.
[2] Mr. White has appealed that decision and seeks a stay of any sale of the property pending the hearing of his appeal.
[3] I am satisfied that it is appropriate to grant a stay, and, on the hearing of the motions, the parties consented to an order granting a stay of any sale of the property to June 15, 2023 and extending the time for Mr. White to remove the scrap to June 15, 2023 also. The parties did not agree whether the stay would continue until the disposition of the appeal if no decision was made by June 15, 2023.
[4] The appeal has been perfected by Mr. White. The Court of Appeal ordered that Mr. White post security for costs[^2] and that security for costs has been paid.
[5] The only issue left for me to decide is whether the stay should continue until disposition of the appeal if the decision is not delivered by June 15, 2023.
[6] The test for granting a stay is the same three part test as for an injunction[^3]: serious issue to be tried, irreparable harm, and balance of convenience.
[7] As to the merits, although Favreau J. described the appeal as having a ‘low prospect of success”, she did not find that it was frivolous or vexatious[^4]. Thus, the first part of the test is satisfied. Vesting property of Mr. White’s to the Gauthier Estate could result in irreparable harm if the appeal is allowed[^5]. The balance of convenience favours Mr. White as he has been diligent in perfecting the appeal. There is no evidence that delaying the sale beyond June 15, 2023, will result in a decrease of the value of the property to the Gauthier Estate. Applying and balance these three factors, I conclude that the stay could continue until the disposition of the appeal.
[8] There will be no order as to costs.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: January 31, 2023
COURT FILE NO.: CV-18-0590-00
DATE: 2023-01-31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Lisa Laurette Gauthier, Estate Trustee for the Estate of Yvan Gauthier
Plaintiff/Defendant by Counterclaim (Responding Party)
- and -
John Harold White
Defendant/Plaintiff by Counterclaim (Moving Party)
REASONS ON MOTION
Newton J.
Released: January 31, 2023
[^1]: Gauthier v. White, 2022 ONSC 2605. [^2]: Gauthier Estate v. White, 2022 ONCA 846. [^3]: See for example Toronto Dominion Bank v. Charette, 2003 CarswellOnt 2248. [^4]: Gauthier Estate v. White, 2022 ONCA 846 at para.13. [^5]: I note that the relief sought at the Court of Appeal is a declaration that the purchase price was $80,000 and not $40,000 as I found but my order did vest title to Mr. Gauthier.