MacKay v. Bonin et al., 2011 NSSC 158

• Judge: Rosinski, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 13, 2011
• Jurisdiction: Nova Scotia
• Citations: 2011 NSSC 158;(2011), 302 N.S.R.(2d) 261 (SC)

MacKay v. Bonin (2011), 302 N.S.R.(2d) 261 (SC);

    955 A.P.R. 261

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. AP.048

Keith MacKay, assignee of Halifax Equipment Rentals, Sales and Service Limited (plaintiff) v. Ruth Eleanor Bonin and Harvey Cameron Dauphinee, c.o.b. as a registered partnership under the firm name Harvey Dauphinee's Trucking and Excavation (defendants)

(Hfx. No. 343382; 2011 NSSC 158)

Indexed As: MacKay v. Bonin et al.

Nova Scotia Supreme Court

Rosinski, J.

April 21, 2011.

Summary:

In December 2010, MacKay received the assigned benefits of the judgment that Halifax Equipment Rentals Sales Services Ltd. had secured against Dauphinee in 1991. In February 2011, on MacKay's ex parte motion, Wright, J., granted the Prothonotary permission to issue an execution order for the purpose of enforcing the judgment. Dauphinee moved to set aside Wright, J.'s order or, alternatively, to stay it permanently.

The Nova Scotia Supreme Court denied the motion.

Execution - Topic 187

General rules - Leave to issue execution - Bars - In December 2010, MacKay received the assigned benefits of the judgment that Halifax Equipment Rentals Sales Services Ltd. had secured against Dauphinee in 1991 - In February 2011, on MacKay's ex parte motion, Wright, J., granted the Prothonotary permission to issue an execution order for the purpose of enforcing the judgment - Dauphinee moved to set aside Wright, J.'s order or, alternatively, to stay it permanently - MacKay opposed the motion, asserting in explanation of the nearly 20 year delay that "There exists an economic reality that explains why creditors who register judgments at the Registry of Deeds 'sit and wait' rather than aggressively pursue relying on those judgments ... In light of that economic reality, and the Province of Nova Scotia's position regarding the inapplicability of the Sale of Land Under Execution Act, MacKay did not have much choice except to wait until the prior creditor's judgments ceased to have legal effect ..." - The Nova Scotia Supreme Court denied Dauphinee's motion - The court accepted MacKay's explanation of the delay as reasonable in these circumstances - Dauphinee had not demonstrated any significant prejudice, much less "irreparable harm", caused by the delay, including the fact that he had a viable business operating on the land that was to be sold - The prejudice to MacKay of a permanent stay or of not permitting the execution order to issue was much greater than the prejudice to Dauphinee if the execution order was issued.

Execution - Topic 480

General rules - Stay of execution - Grounds - [See Execution - Topic 187 ].

Cases Noticed:

Canadian Paraplegic Association (Newfoundland and Labrador) Inc. v. Sparcott Engineering Ltd. et al. (1997), 150 Nfld. & P.E.I.R. 203; 470 A.P.R. 203 (Nfld. C.A.), refd to. [para. 8].

MacKay et al. v. MacMillan (2009), 285 N.S.R.(2d) 118; 905 A.P.R. 118; 2009 NSSC 330, refd to. [para. 29].

Smith's Field Manor Development Ltd. v. Campbell, [2010] N.S.R.(2d) Uned. 26; 2010 NSSC 63, refd to. [para. 29].

E.B.F. Manufacturing Ltd. et al. v. White et al., [2005] N.S.R.(2d) Uned. 71; 2005 NSCA 103, refd to. [para. 33].

MacLellan Lincoln Mercury Ltd. v. Jacobsen (2007), 259 N.S.R.(2d) 8; 828 A.P.R. 8; 2007 NSSC 245, revd. in part (2008), 265 N.S.R.(2d) 258; 848 A.P.R. 258; 2008 NSCA 45, dist. [para. 35].

Windy Bay Fisheries Ltd. v. Joseph (Neiff) Land Surveyors Ltd. (1996), 157 N.S.R.(2d) 367; 462 A.P.R. 367 (C.A.), refd to. [para. 37].

N.S. Tractors & Equipment Ltd. v. Morton (1986), 79 N.S.R.(2d) 59; 196 A.P.R. 59 (T.D.), refd to. [para. 39].

Commercial Credit Plan Ltd. v. MacLeod (1987), 75 N.S.R.(2d) 197; 186 A.P.R. 197 (T.D.), refd to. [para. 40].

W.T. Lamb & Sons v. Rider, [1948] 2 All E.R. 402 (C.A.), refd to. [para. 40].

Centennial Realties Ltd. v. Spiropoulos (2002), 208 N.S.R.(2d) 203; 652 A.P.R. 203; 2002 NSSC 231, refd to. [para. 47].

Counsel:

Keith MacKay, for the plaintiff;

Matthew Moir, for the defendants.

This motion was heard at Halifax, Nova Scotia, on April 13, 2011, by Rosinski, J., of the Nova Scotia Supreme Court, who delivered the following decision on April 21, 2011.