Spiropoulos v. Chagnon et al., (1997) 160 N.S.R.(2d) 397 (CA)

• Judge: Pugsley, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 26, 1997
• Jurisdiction: Nova Scotia
• Citations: (1997), 160 N.S.R.(2d) 397 (CA)

Spiropoulos v. Chagnon (1997), 160 N.S.R.(2d) 397 (CA);

    473 A.P.R. 397

MLB headnote and full text

Temp. Cite: [1997] N.S.R.(2d) TBEd. AU.009

Gaston Chagnon and Gaston Chagnon Property Ltd. (applicants/appellants) v. Arthur Spiropoulos (respondent)

(C.A. No. 135733)

Indexed As: Spiropoulos v. Chagnon et al.

Nova Scotia Court of Appeal

Pugsley, J.A.

July 10, 1997.

Summary:

The plaintiff and defendant Chagnon each owned an undivided one-half interest in an apartment building. Neither could "hypoth­ecate" their interest without the other's con­sent. The plaintiff borrowed $300,000 from Chagnon, delivering a deed in escrow to Chagnon's lawyer for a 23% interest in the building. The plaintiff tendered payment on the due date. Chagnon had instructed his lawyer not to accept, believing the plaintiff obtained the funds by "hypothecating" his interest. Chagnon then registered the deed. The plaintiff sued for specific performance, seeking a reconveyance of the 23% interest upon repayment. The plaintiff also sought damages equal to the income earned on the 23% interest since the due date.

The Nova Scotia Supreme Court, in a judgment reported 137 N.S.R.(2d) 321; 391 A.P.R. 321, held that a proper tender was made and was unjustifiably refused. The repayment funds were obtained by the plain­tiff from a third party lender under an unse­cured promissory note, which did not consti­tute a "hypothecation" (i.e., no equitable mortgage). The court ordered Chagnon to reconvey the 23% interest upon payment of monies owing as of the due date (Chagnon disentitled to interest on the debt after the due date). Further, Chagnon was liable in damages for income earned on the 23% interest since the due date. Chagnon appealed and obtained a stay of the plain­tiff's execution order, where the appeal was to be heard quickly. When Chagnon's new counsel sought an adjournment of the appeal, Roscoe, J.A., of the Nova Scotia Court of Appeal, granted the adjournment, but lifted the stay. Chagnon now applied to again stay enforcement of the execution order.

The Nova Scotia Court of Appeal, per Pugsley, J.A., held that he lacked jurisdiction to grant a stay, because the application was substantively the same as that before Roscoe, J.A. A single Chambers judge had no juris­diction to review and allow an appeal from the decision of another justice sitting in Chambers.

Courts - Topic 2110

Jurisdiction - Appellate jurisdiction - Single appellate judge - A successful plaintiff obtained an execution order - The defendant appealed and obtained, from a Court of Appeal judge sitting in Chambers, a stay of enforcement pending the appeal, which was to be heard quickly - The defendant obtained new counsel and sought an adjournment to prepare for the appeal - The Chambers judge granted a three month adjournment, but lifted the stay - The de­fendant applied to another Cham­bers judge to again stay enforcement of the execution order - The Nova Scotia Court of Appeal, per Pugsley, J.A., held that he lacked juris­diction over what was effec­tively an appli­cation to review and appeal a deci­sion of another single Chambers judge - The appli­cation was substantively the same as that before the first Chambers judge - Such an application to reverse or set aside a Chambers judge's decision had to come before a panel of the Court of Appeal.

Practice - Topic 8951

Appeals - Stay of proceedings pending appeal - Jurisdiction - [See Courts - Topic 2110 ].

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. 20].

Saunders et al. v. Oceanus Marine Inc., [1997] 160 N.S.R.(2d) 393; 473 A.P.R. 393 (C.A.), refd to. [para. 20].

Canadian Tire Corp. v. Pit Row Services Ltd. (1987), 13 F.T.R. 145 (T.D.), refd to. [para. 22].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 53.13(1) [para. 16]; rule 62.10 [para. 17].

Counsel:

W. Michael Cooke, Q.C., for the appli­cants/appellants;

J.D. MacIsaac, for the respondent.

This application was heard in Chambers on June 26, 1997, before Pugsley, J.A., of the Nova Scotia Court of Appeal, who delivered the following judgment on July 10, 1997.