Kareway Homes v. 37889 Yukon, 2012 YKCA 3

• Judge: Saunders, J.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: March 29, 2012
• Jurisdiction: Yukon
• Citations: 2012 YKCA 3;(2012), 321 B.C.A.C. 314 (CA)

Kareway Homes v. 37889 Yukon (2012), 321 B.C.A.C. 314 (CA);

    547 W.A.C. 314

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. MY.038

Kareway Homes Ltd. (appellant/plaintiff) v. 37889 Yukon Inc. (respondent/defendant)

(YU694; 2012 YKCA 3)

Indexed As: Kareway Homes Ltd. v. 37889 Yukon Inc.

Yukon Court of Appeal

Saunders, J.A.

May 16, 2012.

Summary:

The plaintiff builder sued the defendant owner for damages respecting the development of a condominium project and enforcement of a builder's lien. The owner counterclaimed for damages. The trial judge dismissed the builder's action and allowed the owner's counterclaim in part, awarding the owner $533,148 for overpayments. The builder appealed. It applied under s. 13 of the Yukon Court of Appeal Act for a stay of execution respecting the owner's monetary judgment.

The Yukon Court of Appeal, per Saunders, J.A., ordered a stay of execution of the judgment, upon the builder depositing $350,000 in court as security.

Editor's Note: for other cases involving these parties see [2010] Yukon Cases Uned. 7 (S.C.) and [2011] Yukon Cases Uned. 37 (S.C.).

Practice - Topic 8956

Appeals - Stay of proceedings pending appeal - Stay of proceedings on terms (incl. security) - The plaintiff builder sued the defendant owner for damages respecting the development of a condominium project and enforcement of a builder's lien - The owner counterclaimed for damages - The trial judge dismissed the builder's action and allowed the owner's counterclaim in part, awarding the owner $533,148 for overpayments - The builder appealed - It applied under s. 13 of the Yukon Court of Appeal Act for a stay of execution respecting the owner's monetary judgment - It argued that execution on the judgment would adversely impact its cash flow, with possible interruption of its business operations - The Yukon Court of Appeal, per Saunders, J.A., ordered a stay of execution of the judgment, upon the builder depositing $350,000 in court as security - There was merit to the appeal - The builder could suffer irreparable harm if the stay of proceedings was refused - The corporate owner had limited business activities and apparent limited assets - If the builder was successful on appeal, it might not be able to recover monies it paid in satisfaction of the judgment - The balance of convenience favoured a stay of execution.

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - [See Practice - Topic 8956 ].

Cases Noticed:

Sidhu Estate et al. v. Darbar et al., [2003] B.C.A.C. Uned. 5; 2003 BCCA 3, refd to. [para. 5].

Gill v. Darbar - see Sidhu Estate et al. v. Darbar et al.

JR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 111 D.L.R.(4th) 385, refd to. [para. 5].

Mooney v. Orr et al., [1994] B.C.T.C. Uned. F94; [1995] 3 W.W.R. 116; 100 B.C.L.R.(2d) 335 (S.C.), refd to. [para. 6].

Silver Standard Resources Inc. v. Joint Stock Co. Geolog et al. (1998), 115 B.C.A.C. 262; 189 W.A.C. 262; 168 D.L.R.(4th) 309; 59 B.C.L.R.(3d) 196 (C.A.), refd to. [para. 6].

Tracy v. Instaloans Financial Solutions Centres (B.C.) Ltd. et al. (2007), 246 B.C.A.C. 296; 406 W.A.C. 296; 285 D.L.R.(4th) 413; 2007 BCCA 481, refd to. [para. 6].

Larose v. Yavis (1993), 25 B.C.A.C. 201; 43 W.A.C. 201 (C.A.), refd to. [para. 15].

South Pacific Import Inc. et al. v. Ho et al., [2007] B.C.A.C. Uned. 115; 2007 BCCA 254, refd to. [para. 15].

Paradise Lakes Country Club v. Ahmed, [2005] B.C.A.C. Uned. 131; 2005 BCCA 466, refd to. [para. 15].

Counsel:

J. Tucker and S. Lesiuk, for the appellant;

M. Tatchell and C. Cattermole, for the respondent.

This application was heard in Chambers on March 29, 2012, before Saunders, J.A., of the Yukon Court of Appeal, who delivered the following decision on May 16, 2012.