Giffin v. Soontiens et al., 2011 NSCA 1

JudgeBeveridge, J.A.
CourtCourt of Appeal of Nova Scotia (Canada)
Case DateDecember 30, 2010
JurisdictionNova Scotia
Citations2011 NSCA 1;(2011), 297 N.S.R.(2d) 316 (CA)

Giffin v. Soontiens (2011), 297 N.S.R.(2d) 316 (CA);

    943 A.P.R. 316

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. JA.003

Nicole Soontiens, Ilona MacAlpine, XL Electric Limited, a body corporate, Huntec Limited, a body corporate, and CNCA Holdings Limited, a body corporate (applicants) v. Gordon Giffin (respondent)

(CA 341510; 2011 NSCA 1)

Indexed As: Giffin v. Soontiens et al.

Nova Scotia Court of Appeal

Beveridge, J.A.

January 4, 2011.

Summary:

Giffin brought an oppression remedy claim against the appellants (two of his cousins and companies that they held an interest in). Giffin brought a motion against the appellant XL Electric Ltd. for interim costs pursuant to s. 7(4) of the Third Schedule of the Nova Scotia Companies Act.

The Nova Scotia Supreme Court, in a decision reported at 297 N.S.R.(2d) 48; 943 A.P.R. 48, issued an order requiring XL Electric Ltd. to pay Giffin interim costs in the amount of $175,000. The appellants filed an application for leave to appeal and notice of appeal and brought a motion for a stay of the order for interim costs pending the appeal.

The Nova Scotia Court of Appeal, per Beveridge, J.A., dismissed the motion for a stay of the order for interim costs on the condition that Giffin deposit his shares in XL Electric Ltd. with the Registrar of the Court of Appeal to be held as security to the benefit of XL Electric in the event that an order of the court was subsequently issued requiring Giffin to refund all or part of the $175,000 paid.

Company Law - Topic 9735

Actions against corporations and directors - Practice - Costs - Interim costs - Giffin brought an oppression remedy claim against the appellants - Giffin brought a motion against the appellant XL Electric Ltd. for interim costs pursuant to s. 7(4) of the Third Schedule of the Nova Scotia Companies Act - The motions judge ordered XL Electric Ltd. to pay Giffin interim costs of $175,000 - The appellants filed an application for leave to appeal and notice of appeal and brought a motion for a stay of the order for interim costs pending the appeal - The Nova Scotia Court of Appeal, per Beveridge, J.A., dismissed the motion for a stay of the order for interim costs on the condition that Giffin deposit his shares in XL Electric Ltd. with the Registrar of the Court of Appeal to be held as security to the benefit of XL Electric in the event that an order of the court was subsequently issued requiring Giffin to refund all or part of the $175,000 - The appellants had established an arguable issue - The only irreparable harm identified was the risk that should the appellants be successful on appeal, XL Electric would be unable to recoup the $175,000 - The court was satisfied that the risk of non-recovery was sufficient that without some conditions being placed on the assets of Giffin, XL Electric could suffer irreparable harm by not being able to recover the funds it was required to advance to fund the litigation against it - Giffin had offered, as a condition of the motion for a stay being dismissed, to deposit his shares in XL Electric with the court to be held as security in the event he was required to pay back all or part of the interim costs order of $175,000 - The court adopted Giffin's offer as the appropriate way to ensure the trial was not put in jeopardy by a delay in payment of the award of interim costs, and the appellants would not be exposed to the risk of non-recovery should their appeal be successful.

Practice - Topic 8304

Costs - Appeals - Appeals from order granting or denying costs - Stay of execution - [See Company Law - Topic 9735 ].

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes irreparable harm - [See Company Law - Topic 9735 ].

Practice - Topic 8956

Appeals - Stay of proceedings pending appeal - Stay of proceedings on terms - [See Company Law - Topic 9735 ].

Practice - Topic 8969

Appeals - Stay of proceedings pending appeal - Stay of costs order - [See Company Law - Topic 9735 ].

Cases Noticed:

McKay et al. v. Munro et al. (1992), 119 N.S.R.(2d) 195; 330 A.P.R. 195 (S.C.), refd to. [para. 10].

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

Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 125 N.S.R.(2d) 171; 349 A.P.R. 171 (C.A.), refd to. [para. 22].

MacCulloch v. McInnes, Cooper & Robertson (2000), 186 N.S.R.(2d) 398; 581 A.P.R. 398; 2000 NSCA 92, refd to. [para. 23].

Pentagon Investments Ltd. v. Canadian Surety Co. (1992), 112 N.S.R.(2d) 86; 307 A.P.R. 86 (C.A.), refd to. [para. 28].

Campbell v. Jones et al. (2001), 197 N.S.R.(2d) 196; 616 A.P.R. 196; 2001 NSCA 138, refd to. [para. 29].

Dillon v. Kelly (1995), 145 N.S.R.(2d) 194; 418 A.P.R. 194 (C.A.), refd to. [para. 30].

R. v. Innocente (D.J.) et al. (2001), 194 N.S.R.(2d) 183; 606 A.P.R. 183; 2001 NSCA 97, refd to. [para. 31].

CarboPego-Abastecimento De Combustiveis S.A. v. AMCI Export Corp., [2007] N.S.R.(2d) Uned. 138; 2007 NSCA 93, refd to. [para. 31].

Wright v. Nova Scotia Public Service Long Term Disability Plan Trust Fund (2006), 240 N.S.R.(2d) 166; 763 A.P.R. 166; 2006 NSCA 6, refd to. [para. 32].

Piercey et al. v. Board of Education of Lunenburg County District (1997), 162 N.S.R.(2d) 315; 485 A.P.R. 315 (C.A.), refd to. [para. 33].

MacPhail et al. v. Desrosiers et al. (1998), 165 N.S.R.(2d) 32; 495 A.P.R. 32 (C.A.), refd to. [para. 34].

Counsel:

George W. MacDonald, Q.C., for the appellants;

John A. Keith, with Andrew Taillon and Jack Townsend, Articling Clerks, for the respondent.

This motion was heard on December 30, 2010, in Chambers, before Beveridge, J.A., of the Nova Scotia Court of Appeal, who delivered the following decision on January 4, 2011.

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4 practice notes
  • Bonitto v. Halifax Regional School Board, 2015 NSCA 3
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • January 8, 2015
    ...Insurance Agencies Ltd. v. Purdy (1991), 100 N.S.R.(2d) 341; 272 A.P.R. 341 (C.A.), refd to. [para. 25]. Giffin v. Soontiens et al. (2011), 297 N.S.R.(2d) 316; 943 A.P.R. 316; 2011 NSCA 1, refd to. [para. R. v. Innocente (D.J.) et al. (2001), 194 N.S.R.(2d) 183; 606 A.P.R. 183; 2001 NSCA 97......
  • Kedmi v. Korem, [2012] N.S.R.(2d) Uned. 143 (CA)
    • Canada
    • Court of Appeal of Nova Scotia (Canada)
    • June 12, 2012
    ...[8] Ms. Kedmi expressed familiarity with some of the case law referred to by counsel for the respondent such as Soontiens v. Giffin , 2011 NSCA 1, where the well known test articulated by Hallet J.A. in Purdy v. Fulton Insurance Agencies Ltd. (1990), 100 N.S.R. (2d) 341 was again explained.......
  • Reddick v. MacInnis, 2018 NSSC 201
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • August 27, 2018
    ...pending appeal, which are subject to the same principles as injunctions: R.J.R. MacDonald, at para. 41. In Giffin v. Soontiens, 2011 NSCA 1, [2001] N.S.J. No. 380, the appellants were ordered to pay interim costs of $175,000 to the respondent. They moved for a stay of the order pending an a......
  • Kedmi v. Korem, 2012 NSCA 90
    • Canada
    • Court of Appeal of Nova Scotia (Canada)
    • August 22, 2012
    ...The principles regarding a motion for a stay of execution have been set out many times by this Court. Recently in Soontiens v. Giffin , 2011 NSCA 1 as follows: [18] There are well known, but competing principles that come into play when the losing party asks this Court to stay the execution......
4 cases
  • Bonitto v. Halifax Regional School Board, 2015 NSCA 3
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • January 8, 2015
    ...Insurance Agencies Ltd. v. Purdy (1991), 100 N.S.R.(2d) 341; 272 A.P.R. 341 (C.A.), refd to. [para. 25]. Giffin v. Soontiens et al. (2011), 297 N.S.R.(2d) 316; 943 A.P.R. 316; 2011 NSCA 1, refd to. [para. R. v. Innocente (D.J.) et al. (2001), 194 N.S.R.(2d) 183; 606 A.P.R. 183; 2001 NSCA 97......
  • Kedmi v. Korem, [2012] N.S.R.(2d) Uned. 143 (CA)
    • Canada
    • Court of Appeal of Nova Scotia (Canada)
    • June 12, 2012
    ...[8] Ms. Kedmi expressed familiarity with some of the case law referred to by counsel for the respondent such as Soontiens v. Giffin , 2011 NSCA 1, where the well known test articulated by Hallet J.A. in Purdy v. Fulton Insurance Agencies Ltd. (1990), 100 N.S.R. (2d) 341 was again explained.......
  • Reddick v. MacInnis, 2018 NSSC 201
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • August 27, 2018
    ...pending appeal, which are subject to the same principles as injunctions: R.J.R. MacDonald, at para. 41. In Giffin v. Soontiens, 2011 NSCA 1, [2001] N.S.J. No. 380, the appellants were ordered to pay interim costs of $175,000 to the respondent. They moved for a stay of the order pending an a......
  • Kedmi v. Korem, 2012 NSCA 90
    • Canada
    • Court of Appeal of Nova Scotia (Canada)
    • August 22, 2012
    ...The principles regarding a motion for a stay of execution have been set out many times by this Court. Recently in Soontiens v. Giffin , 2011 NSCA 1 as follows: [18] There are well known, but competing principles that come into play when the losing party asks this Court to stay the execution......

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