Abuzour v. Heydary et al., 2015 ONCA 249

• Judge: Huscroft, J.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 26, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 249;(2015), 333 O.A.C. 234 (CA)

Abuzour v. Heydary (2015), 333 O.A.C. 234 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AP.011

Hasan Abuzour and Samira Abuzour (respondent on appeal/applicants) v. Javad Heydary and Heydary Hamilton Professional Corporation (respondents)

(M44807; C59984; 2015 ONCA 249)

Indexed As: Abuzour v. Heydary et al.

Ontario Court of Appeal

Huscroft, J.A.

April 13, 2015.

Summary:

On October 28, 2014, Penny, J., ordered LAWPRO to pay to the Abuzours the proceeds of an insurance policy held by Heydary and Heydary Hamilton Professional Corp. LAWPRO did not appeal this order. Landmann, Wang, and Smith brought a motion to vary or set aside the October 28 order on the basis that it was made without adequate notice to them as affected non-parties. A January 29, 2015, order dismissed the motion. Landmann, Wang, and Smith appealed the January 29 order. LAWPRO brought a motion for directions, asking whether the October 28 order was automatically stayed by operation of rule 63.01(1). In the event that the October 28 order was not automatically stayed, LAWPRO asked whether it should be stayed in the interests of justice.

The Ontario Court of Appeal, per Huscroft, J.A., held that the grant of a stay under rule 63.02(1) was premised on the existence of an appeal. The October 28 order had not been appealed and as a result the court could not grant a stay of that order under rule 63.02(1). However, the court had jurisdiction to grant a stay pursuant to s. 134(2) of the Courts of Justice Act. The test for granting interim relief under s. 134(2) was the same as for granting a stay pending appeal pursuant to rule 63.02(1). It was based on the test for an interlocutory injunction. In this case, there was a serious issue to be tried, the applicants would suffer irreparable harm if the application were refused and the balance of convenience favoured the applicants. The court granted a stay.

Practice - Topic 8951

Appeals - Stay of proceedings pending appeal - Jurisdiction - On October 28, 2014, Penny, J., ordered LAWPRO to pay to the Abuzours the proceeds of an insurance policy held by Heydary and Heydary Hamilton Professional Corp. - LAWPRO did not appeal this order - Landmann, Wang, and Smith brought a motion to vary or set aside the October 28 order on the basis that it was made without adequate notice to them as affected non-parties - A January 29, 2015, order dismissed the motion - Landmann, Wang, and Smith appealed the January 29 order - LAWPRO brought a motion for directions, asking whether the October 28 order was automatically stayed by operation of rule 63.01(1) - In the event that the October 28 order was not automatically stayed, LAWPRO asked whether it should be stayed in the interests of justice - The Ontario Court of Appeal, per Huscroft, J.A., held that the grant of a stay under rule 63.02(1) was premised on the existence of an appeal - The October 28 order had not been appealed and as a result the court could not grant a stay of that order under rule 63.02(1) - However, the court had jurisdiction to grant a stay pursuant to s. 134(2) of the Courts of Justice Act - The test for granting interim relief under s. 134(2) was the same as for granting a stay pending appeal pursuant to rule 63.02(1) - It was based on the test for an interlocutory injunction - In this case, there was a serious issue to be tried, the applicants would suffer irreparable harm if the application were refused and the balance of convenience favoured the applicants - The court granted a stay.

Practice - Topic 8952

Appeals - Stay of proceedings pending appeal - When appellant entitled to stay - [See Practice - Topic 8951 ].

Cases Noticed:

Longley et al. v. Canada (Attorney General) (2007), 223 O.A.C. 102; 2007 ONCA 149, refd to. [para. 19].

Waxman v. Waxman, 2003 CanLII 22440 (C.A.), refd to. [para. 23].

CPC International Inc. et al. v. Seaforth Creamery Inc. et al. (1996), 94 O.A.C. 5; 3 C.P.C.(4th) 100 (C.A.), refd to. [para. 23].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1, refd to. [para. 24].

BTR Global Opportunity Trading Ltd. et al. v. RBC Dexia Investor Services Trust (2011), 283 O.A.C. 321; 2011 ONCA 620, refd to. [para. 25].

Counsel:

Mark Adilman, for the applicants;

Megan Marrie, for the moving party, LAWPRO;

Brian N. Radnoff, for Jeff Landmann, Yan Wang and Darren Smith.

This application was heard in Chambers, on March 26, 2015, by Huscroft, J.A., of the Ontario Court of Appeal, who delivered the following judgment on April 13, 2015.