Bonang v. Wolfridge Farm, 2014 NSCA 70

Judge:Fichaud, J.A.
Court:Nova Scotia Court of Appeal
Case Date:June 30, 2014
Jurisdiction:Nova Scotia
Citations:2014 NSCA 70;(2014), 347 N.S.R.(2d) 243 (CA)
 
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Bonang v. Wolfridge Farm (2014), 347 N.S.R.(2d) 243 (CA);

    1098 A.P.R. 243

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Temp. Cite: [2014] N.S.R.(2d) TBEd. JL.004

Wolfridge Farm Limited (appellant) v. Gerald P. Bonang and Dianne Bonang (respondents)

(CA 425205; 2014 NSCA 70)

Indexed As: Bonang v. Wolfridge Farm Ltd.

Nova Scotia Court of Appeal

Fichaud, J.A.

June 30, 2014.

Summary:

The plaintiff mortgagees (Bonangs) applied for foreclosure and sale of a first mortgage on a property in Bedford, Nova Scotia. The mortgagees alleged breaches of virtually all the terms of the mortgage. The defendant mortgagor (Wolfridge Farm Ltd.), defended the action claiming it was not in breach of the mortgage when foreclosure proceedings were commenced.

The Nova Scotia Supreme Court, in a decision reported [2014] N.S.R.(2d) Uned. 13, granted the foreclosure order. The mortgagor appealed, and applied for a stay pending appeal.

The Nova Scotia Court of Appeal, per Fichaud, J.A., dismissed the application for a stay.

Practice - Topic 5854

Judgments and orders - Enforcement of judgments - Stay of - [See all Practice - Topic 8952 ].

Practice - Topic 8952

Appeals - Stay of proceedings pending appeal - When appellant entitled to stay - The Nova Scotia Court of Appeal, per Fichaud, J.A., stated that "In some jurisdictions, the filing of a notice of appeal automatically stays the order under appeal. Nova Scotia isn't one of them. Rules 90.41(1) and (2) say that the filing of a Notice of Appeal 'shall not operate as a stay of execution or enforcement of the judgment appealed from' but a judge 'may, pending disposition of the appeal', issue a stay 'on such terms as may be just'" - See paragraph 19.

Practice - Topic 8952

Appeals - Stay of proceedings pending appeal - When appellant entitled to stay - The Nova Scotia Court of Appeal, per Fichaud, J.A., stated that "The test remains that stated by Justice Hallett in Fulton Insurance Agencies Ltd. v. Purdy [NSCA 1990] ..., under the former Rule 62.10(2). The stay applicant must show that either (1) there is an arguable appeal, and denial of the stay would cause him irreparable harm and the balance of convenience favours the stay applicant, or (2) there are exceptional circumstances making it just that a stay be granted. Nothing in this motion engages Fulton's secondary and rarely applied 'exceptional' test. I will address the primary test" - See paragraph 20.

Practice - Topic 8952

Appeals - Stay of proceedings pending appeal - When appellant entitled to stay - A mortgagor applied to stay a foreclosure order pending appeal - The Nova Scotia Court of Appeal, per Fichaud, J.A., dismissed the application - The appeal was not arguable - Irreparable harm was not established - Harm was not irreparable if the stay applicant (in this case the mortgagor) could avoid it but had chosen not to - The balance of convenience favoured the mortgagees - Granting a stay would forestall their receipt of the secured purchase price owing to them for the property that they conveyed eleven years ago, and required them to pay yet more property taxes, on lands that the mortgagor continued to enjoy for its own commercial profit - See paragraphs 19 to 41.

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - [See third Practice - Topic 8952 ].

Cases Noticed:

Fulton Insurance Agencies Ltd. v. Purdy (1990), 100 N.S.R.(2d) 341; 272 A.P.R. 341 (C.A.), refd to. [para. 20].

Fleet et al. v. Federated Life Insurance Co. of Canada (2008), 269 N.S.R.(2d) 138; 860 A.P.R. 138; 2008 NSCA 90, refd to. [para. 22].

Casey v. Halifax (Regional Municipality) et al. (2011), 305 N.S.R.(2d) 219; 966 A.P.R. 219; 2011 NSCA 69, refd to. [para. 33].

C.B. v. T.M., [2012] N.S.R.(2d) Uned. 175; 2012 NSCA 75, refd to. [para. 33].

MacQueen et al. v. Nova Scotia et al. (2012), 319 N.S.R.(2d) 215; 1010 A.P.R. 215; 2012 NSCA 78, refd to. [para. 33].

Sydney Steel Corp. v. MacQueen - see MacQueen et al. v. Nova Scotia et al.

Counsel:

John T. Early III, for the appellant (applicant);

James J. White, for the respondents.

This motion was heard in Chambers, on June 26 and 27, 2014, in Halifax, N.S., before Fichaud, J.A., of the Nova Scotia Court of Appeal, who delivered the following decision on June 30, 2014.

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