SA Horeca Financial Services et al. v. Light, 2014 ONCA 811

• Judge: Weiler, J.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 10, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONCA 811;(2014), 327 O.A.C. 128 (CA)

SA Horeca Financial v. Light (2014), 327 O.A.C. 128 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. NO.015

SA Horeca Financial Services and SA Horeca Logistic Services (plaintiffs/respondents/moving party) v. Andrew Martin Light (defendant/appellant/responding party)

(M44314; 2014 ONCA 811)

Indexed As: SA Horeca Financial Services et al. v. Light

Ontario Court of Appeal

Weiler, J.A.

November 17, 2014.

Summary:

SA Horeca Financial Services and SA Horeca Logistic Services (Horeca) obtained a summary judgment against Light. The judgment recognized and enforced the foreign judgment that Horeca had obtained against Light in a Belgian court in 2011. Light launched an appeal, triggering an automatic stay on enforcement of the monetary judgment under rule 63.01(1) of the Rules of Civil Procedure. Horeca moved to lift the automatic stay on enforcement pending appeal, pursuant to rule 63.01(5), and to obtain security for costs respecting the appeal, pursuant to rule 61.06(1)(a). As an alternative to lifting the stay in its entirety, Horeca asked for an order allowing for an examination of Light in aid of execution.

The Ontario Court of Appeal, per Weiler, J.A., lifted the stay on enforcement to the extent of permitting Horeca to examine Light in aid of execution, but dismissed the motion for security for costs.

Practice - Topic 5854

Judgments and orders - Enforcement of judgments - Stay of - SA Horeca Financial Services and SA Horeca Logistic Services (Horeca) obtained a summary judgment against Light - The judgment recognized and enforced the foreign judgment that Horeca had obtained against Light in a Belgian court in 2011 - Light launched an appeal, triggering an automatic stay on enforcement of the monetary judgment under rule 63.01(1) of the Rules of Civil Procedure - Horeca moved to lift the automatic stay on enforcement pending appeal, pursuant to rule 63.01(5) - As an alternative to lifting the stay in its entirety, Horeca asked for an order allowing for an examination of Light in aid of execution - The Ontario Court of Appeal, per Weiler, J.A., allowed the motion to the extent of permitting Horeca to examine Light in aid of execution - Rule 63.01(5) gave an appellate court judge discretion to lift a stay imposed by rule 63.01(1) "on such terms as are just." - In considering whether to lift a stay, the court should have regard to three principal factors: "i) financial hardship to the respondent if the stay is not lifted; ii) the ability of the respondent to repay or provide security for the amount paid; and iii) the merits of the appeal" - The first and second factors were satisfied - However, the appeal appeared to be frivolous and vexatious - Horeca would have no protection pending the hearing of Light's appeal - See paragraphs 13 to 18.

Practice - Topic 8206.2

Costs - Security for costs - Security for costs of an appeal - Application - Considerations - SA Horeca Financial Services and SA Horeca Logistic Services (Horeca) obtained a summary judgment against Light - The judgment recognized and enforced the foreign judgment that Horeca had obtained against Light in a Belgian court in 2011 - Light launched an appeal, triggering an automatic stay on enforcement of the monetary judgment under rule 63.01(1) of the Rules of Civil Procedure - Horeca moved for security for costs pursuant to rule 61.06(1)(a) - The Ontario Court of Appeal, per Weiler, J.A., dismissed the motion - Security for costs could be ordered under rule 61.06(1)(a) where "there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal" - The appeal appeared to be frivolous and vexatious - See paragraphs 19 to 21.

Practice - Topic 8953

Appeals - Stay of proceedings pending appeal - Circumstances when stay may be lifted - [See Practice - Topic 5854 ].

Cases Noticed:

Commission de la Construction du Québec v. Access Rigging Services Inc., [2010] O.T.C. Uned. 5897; 104 O.R.(3d) 313; 2010 ONSC 5897, refd to. [para. 10].

Lax v. Lax (2004), 186 O.A.C. 20; 70 O.R.(3d) 520 (C.A.), refd to. [para. 10].

Siwick et al. v. Dagmar Resort Ltd. et al. (1996), 95 O.A.C. 188 (C.A.), refd to. [para. 13].

Authors and Works Noticed:

Archibald, Todd, Killeen, Gordon and Morton, James C., Ontario Superior Court Practice 2015 (2014), p. 1740 [para. 17].

Counsel:

Ruzbeh Hosseini, for the moving party;

Safina Lakhani, for the responding party.

This motion was heard in Chambers, on November 10, 2014, by Weiler, J.A., of the Ontario Court of Appeal, who delivered the following endorsement on November 17, 2014.