Clark v. O'Brien and Clark, (1995) 140 N.S.R.(2d) 147 (CA)

• Judge: Pugsley, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: March 30, 1995
• Jurisdiction: Nova Scotia
• Citations: (1995), 140 N.S.R.(2d) 147 (CA)

Clark v. O'Brien (1995), 140 N.S.R.(2d) 147 (CA);

  399 A.P.R. 147

MLB headnote and full text

Norma Louise O'Brien and Barbara Clark (appellants) v. Robert E. Clark, Paulette Clark and Colin Clark, an infant by his Guardian Ad Litem, Robert E. Clark (respondents)

(C.A. No. 115107)

Indexed As: Clark v. O'Brien and Clark

Nova Scotia Court of Appeal

Pugsley, J.A.

April 7, 1995.

Summary:

The plaintiffs were injured as the result of a rear-end collision. They sued the driver and the owner of the other car.

The Nova Scotia Supreme Court, in a decision reported 137 N.S.R.(2d) 135; 391 A.P.R. 135, held that the driver of the other car was liable. The court assessed damages accordingly. The driver and the owner of the other car applied for a stay of execution pending an appeal.

The Nova Scotia Court of Appeal, per Pugsley, J.A., declined to grant the stay.

Practice - Topic 5854

Judgments and orders - Enforcement of judgments - Stay of - Clark (aged 40) sued for damages when her vehicle was rear-ended by O'Brien's vehicle - Clark was awarded damages of $410,000 with $272,923 relating to loss of future income - O'Brien applied for a stay of execution of judgement pending the appeal pursuant to rule 62.10 of the Civil Pro­cedure Rules - The Nova Scotia Court of Appeal de­clined to grant the stay - The Court of Appeal noted that there was no evidence that Clark was likely to flee the jurisdic­tion (she and her husband owned their home); no indication that she could not repay it if the appeal was successful; and no proof that creditors were poised to seize the award.

Practice - Topic 8952

Appeals - Stay of proceedings pending appeal - When appellant entitled to stay [See Practice - Topic 5854 ].

Cases Noticed:

Fulton Insurance Agencies Ltd. v. Purdy (1990), 100 N.S.R.(2d) 341; 272 A.P.R. 341 (C.A.), appld. [para. 7].

Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 125 N.S.R.(2d) 171; 349 A.P.R. 171 (C.A.), consd. [para. 13].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 62.10 [para. 12].

Counsel:

R. Malcolm MacLeod, for the appellants;

J. Brian Church, Q.C., for the respondents.

This application was heard in Chambers on March 30, 1995, before Pugsley, J.A., of the Nova Scotia Court of Appeal, who delivered the following judgment on April 7, 1995.