Oceanus Marine Inc. v. Saunders, (1997) 160 N.S.R.(2d) 393 (CA)

• Judge: Bateman, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 12, 1997
• Jurisdiction: Nova Scotia
• Citations: (1997), 160 N.S.R.(2d) 393 (CA)

Oceanus Marine Inc. v. Saunders (1997), 160 N.S.R.(2d) 393 (CA);

    473 A.P.R. 393

MLB headnote and full text

Temp. Cite: [1997] N.S.R.(2d) TBEd. AU.017

Edmund R. Saunders and Reta W. Saunders (applicants/appellants) v. Oceanus Marine Inc. (respondent)

(Docket: CA 134000)

Indexed As: Oceanus Marine Inc. v. Saunders

Nova Scotia Court of Appeal

Bateman, J.A.

June 17, 1997.

Summary:

A lawyer and his wife (the Saunders) mortgaged land. The mortgage was assigned to North American Trust Company. North American Trust Company sued the Saunders for, inter alia, foreclosure (action no. SBW 2327). On May 11, 1995, an order for fore­closure, consented to as to form by the Saunders, was taken out before a Chambers judge fixing the amount due on the mortgage at $175,000. The mortgage was then assigned to Oceanus Marine Inc. Oceanus sued for foreclosure (action no. SBW 3604) respecting the same mortgage and lands. The amount due under the mortgage was stated to be $166,731.24. The Saunders applied in action SBW 2327 for a stay of the May 11 foreclosure order and rectification of the amount outstanding on the mortgage. Oce­anus applied for leave to file a notice of discontinuance in action SBW 3604.

The Nova Scotia Supreme Court, in deci­sions not reported in this series of reports, made interlocutory orders which, inter alia, dismissed the Saunders' applications for a stay and rectification, granted Oceanus leave to file a notice of discontinuance, substituted Oceanus as plaintiff in place of North Ame­rican Trust in action SBW 2327 and con­cluded that the amount due under the mort­gage should be determined by Doane Raymond, chartered accountants. The Saun­ders appealed the orders.

The Nova Scotia Court of Appeal, in a decision reported at 156 N.S.R.(2d) 287, 461 A.P.R. 287, dismissed the appeals except to order that the amount due under the mort­gage was to be determined by the Chambers judge in accordance with a report to be prepared and submitted by Doane Raymond. The Saunders applied for leave to appeal to the Supreme Court of Canada and to the Nova Scotia Court of Appeal for a stay of the foreclosure order pending the leave applica­tion.

The Nova Scotia Court of Appeal, in Chambers, in a decision not reported in this series of reports, granted the stay with a condition. The Saunders applied for leave to appeal the condition attached to the stay and requested a stay of execution of the condi­tion pending the hearing of the leave appli­cation.

The Nova Scotia Court of Appeal, per Bateman, J.A., in Chambers, ordered that the leave application be heard by a panel of the Court of Appeal but refused to stay execu­tion of the condition pending hearing of the leave application.

Practice - Topic 8952

Appeals - Stay of proceedings pending appeal - When appellant entitled to stay - The Nova Scotia Court of Appeal, in Cham­bers, granted the Saunders a stay of an order for foreclosure and sale but attached a con­dition pending disposition of their appeal to the Supreme Court of Canada - The Saun­ders applied for leave to appeal the condition attached to the stay and requested a stay of execution of the condition pending the hear­ing of this leave application - The Nova Scotia Court of Appeal, per Bateman J.A., in Chambers, ordered that the leave application be heard by a panel of the court but refused to stay execution of the condition pending the hearing of the leave application - The Saunders failed to meet the primary test and did not satisfy the court that there were exceptional cir­cumstances making it fit and just that the stay be granted - See para­graphs 12 and 13.

Practice - Topic 8957

Appeals - Stay of proceedings pending appeal - Appeal of order granting stay of proceedings - The Nova Scotia Court of Appeal, in Chambers, granted the Saunders a stay of an order for the foreclosure and sale of certain lands mortgaged by the Saunders, but attached a condition pending disposition of their appeal to the Supreme Court of Canada - The Saunders applied for, inter alia, leave to appeal the condition attached to the stay - It was argued that the court had no jurisdiction to hear the appeal - The Nova Scotia Court of Appeal, per Bateman J.A., in Chambers, ordered that the leave application be heard by a panel of court - The court stated that the question of whether in the unique circumstances a decision of the Chambers judge of the Court of Appeal could be appealed to a panel of the court had not previously been answered - See para­graphs 1 to 11.

Cases Noticed:

Skipper Fisheries Ltd. v. Thorbourne et al. (1996), 154 N.S.R.(2d) 72; 452 A.P.R. 72 (C.A.), refd to. [para. 7].

NsC Diesel Power Inc. (Bankrupt), Re (1995), 140 N.S.R.(2d) 279; 399 A.P.R. 279 (C.A.), refd to. [para. 9].

Fulton Insurance Agencies Ltd. v. Purdy (1990), 100 N.S.R.(2d) 341; 272 A.P.R. 341 (C.A.), refd to. [para. 12].

Statutes Noticed:

Supreme Court Act, R.S.C. 1985, c. S-26, sect. 65.1(1), sect. 65.1(2), sect. 65.1(3) [para. 4].

Counsel:

Edmund R. Saunders in person, for the applicants/appellants;

G.F. Romney, for the respondent.

This application for leave to appeal was heard on June 12, 1997, in Chambers, before Bateman, J.A., of the Nova Scotia Court of Appeal, who delivered the following judg­ment on June 17, 1997.