Bowles v. Beamish, (2008) 452 A.R. 319 (QB)

• Judge: Mahoney, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 08, 2008
• Citations: (2008), 452 A.R. 319 (QB);2008 ABQB 480

Bowles v. Beamish (2008), 452 A.R. 319 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. AU.048

Kevin Charles Warren Bowles (plaintiff) v. Belinda Heather Beamish (defendant)

(FL01 01795; 2008 ABQB 480)

Indexed As: Bowles v. Beamish

Alberta Court of Queen's Bench

Judicial District of Calgary

Mahoney, J.

August 8, 2008.

Summary:

The plaintiff sought a declaration that he had been in a seven year common law relationship with the defendant, which entitled him to a distribution of the assets acquired in the defendant's name during the relationship.

The Alberta Court of Queen's Bench, in a decision reported at (2008), 452 A.R. 307, dismissed the action. The parties were in a common law relationship. However, the plaintiff failed to prove his entitlement to a remedy for unjust enrichment. The plaintiff appealed. He sought a stay of the judgment pending appeal. He also sought an order for spousal support and that some of his belongings be returned to him.

The Alberta Court of Queen's Bench granted a partial stay. The court sought further submissions respecting the plaintiff's request for spousal support and the return of his belongings.

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - The plaintiff sought a declaration that he had been in a seven year common law relationship with the defendant, which entitled him to a distribution of the assets acquired in the defendant's name during the relationship - The trial judge dismissed the action - The parties were in a common law relationship - However, the plaintiff failed to prove his entitlement to a remedy for unjust enrichment - The plaintiff appealed - He sought a stay of the judgment pending appeal - The Alberta Court of Queen's Bench granted a partial stay - The issues between the parties were still in litigation and success on appeal might be no more than a pyrrhic victory if the remaining assets held by the defendant were completely depleted - Money damages in these circumstances would not adequately compensate for the harm because, without some form of preservation order, there might be no money left by the time the appeal was finalized - Weighing and balancing the competing considerations, and mindful of the high conflict and level of distrust between the parties, a partial stay was appropriate pending an appellate decision - The court ordered that one-half of the sale proceeds from two properties be held in trust and that a caveat and lis pendens on a rental property remain.

Practice - Topic 8958

Appeals - Stay of proceedings pending appeal - Balance of convenience and justice - [See Practice - Topic 8954 ].

Cases Noticed:

Slater v. Burgoin (2001), 286 A.R. 373; 253 W.A.C. 373; 2001 ABCA 213, refd to. [para. 4].

Alberta (Minister of Consumer and Corporate Affairs) et al. v. Bennett et al. (1992), 131 A.R. 184; 25 W.A.C. 184 (C.A.), refd to. [para. 5].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 6].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 6].

Morrow v. Zhang et al. (2008), 424 A.R. 131; 2008 ABQB 125, affd. (2008), 432 A.R. 371; 424 W.A.C. 371; 2008 ABCA 248, refd to. [para. 6].

American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.), refd to. [para. 7].

Alberta (Treasury Branches) et al. v. Pocklington Financial Corp. et al. (1998), 228 A.R. 115; 188 W.A.C. 115; 1998 ABCA 254, refd to. [para. 12].

Counsel:

Dale O. Ellert (Ellert Law), for the plaintiff;

Diann P. Castle (Castle & Associates), for the defendant.

This application was heard before Mahoney, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on August 8, 2008.