Vogler v. Szendroi et al., (2011) 302 N.S.R.(2d) 323 (CA)

• Judge: Bryson, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: April 14, 2011
• Jurisdiction: Nova Scotia
• Citations: (2011), 302 N.S.R.(2d) 323 (CA);2011 NSCA 37

Vogler v. Szendroi (2011), 302 N.S.R.(2d) 323 (CA);

    955 A.P.R. 323

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. MY.007

Christopher Szendroi and Carole Sheehan (appellants) v. Richard Vogler (respondent)

(CA 343734; 2011 NSCA 37)

Indexed As: Vogler v. Szendroi et al.

Nova Scotia Court of Appeal

Bryson, J.A.

May 3, 2011.

Summary:

In 2000, 20 year old Vogler was returning home from Colorado with the appellants when they were involved in a motor vehicle accident. Vogler sustained serious injuries, including a traumatic brain injury.

The Nova Scotia Supreme Court, in a decision reported at (2010), 296 N.S.R.(2d) 76; 940 A.P.R. 76, awarded Vogler judgment against the appellants for $464,245, which included $150,000 for non pecuniary damages and $180,000 for diminished earning capacity. In a decision reported at (2011), 297 N.S.R.(2d) 391; 943 A.P.R. 391, increased costs were awarded on the basis of a pre-trial settlement offer. The appellants appealed both the award of $150,000 for non pecuniary damages and the diminished earning capacity award of $180,000. Vogler cross-appealed the $150,000 award. The appellants sought a partial stay of judgment pursuant to Civil Procedure Rule 90.41. They proposed to pay $275,000 to Vogler forthwith. Vogler countered that a partial payment of $325,000 should be made with the balance to be held in trust.

The Nova Scotia Court of Appeal, per Bryson, J.A., granted a partial stay on the following terms: 1. The appellants were to pay Vogler $275,000 forthwith; 2. The balance of the amount due to Vogler was to be paid to his counsel in trust, to be kept in a separate, interest-bearing account; 3. In the event that Vogler was successful on appeal in an amount greater than $275,000, he was to receive interest on the balance of the excess at the same rate of prejudgment interest ordered by the trial judge, i.e., five percent.

Practice - Topic 5854

Judgments and orders - Enforcement of judgments - Stay of - In 2000, 20 year old Vogler sustained serious injuries in a motor vehicle accident, including a traumatic brain injury - The trial judge awarded Vogler judgment against the appellants for $464,245 - Increased costs were awarded on the basis of a pre-trial settlement offer - The appellants appealed from the trial judge's awards of $150,000 for non pecuniary damages and $180,000 for diminished earning capacity - Vogler cross-appealed the $150,000 award - Vogler had no assets either in Nova Scotia or in California where he currently lived and worked - He earned approximately $50,000 a year - The appellants sought a partial stay of the judgment - They proposed to pay $275,000 to Vogler forthwith - Vogler countered that a partial payment of $325,000 should be made with the balance to be held in trust - The Nova Scotia Court of Appeal, per Bryson, J.A., was satisfied that there was a probability of difficulty of repayment if the appeal was successful and that the potential irreparable harm to the appellants outweighed any inconvenience to Vogler by a relatively brief delay in obtaining the balance of the trial judge's award if he succeeded on appeal - The court granted a partial stay on the following terms: 1. The appellants were to pay Vogler $275,000 forthwith; 2. The balance of the amount due to Vogler was to be paid to his counsel in trust, to be kept in a separate, interest-bearing account; 3. In the event that Vogler was successful on appeal in an amount greater than $275,000, he was to receive interest on the balance of the excess at the same rate of prejudgment interest ordered by the trial judge, i.e., five percent.

Practice - Topic 8952

Appeals - Stay of proceedings pending appeal - When appellant entitled to stay - [See Practice - Topic 5854 ].

Practice - Topic 8956

Appeals - Stay of proceedings pending appeal - Stay of proceedings on terms - [See Practice - Topic 5854 ].

Cases Noticed:

Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 125 N.S.R.(2d) 171; 349 A.P.R. 171 (C.A.), refd to. [para. 8].

Fulton Insurance Agencies Ltd. v. Purdy (1990), 100 N.S.R.(2d) 341; 272 A.P.R. 341 (C.A.), appld. [para. 9].

Atlantic Canada Opportunities Agency v. La Ferme D'Acadie et al. (2009), 273 N.S.R.(2d) 64; 872 A.P.R. 64; 2009 NSCA 5, refd to. [para. 9].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 9].

Earle v. Coltsfoot Publishing Co. et al. (2000), 183 N.S.R.(2d) 396; 568 A.P.R. 396; 2000 NSCA 39, refd to. [para. 10].

Brown v. Brown (1999), 173 N.S.R.(2d) 41; 527 A.P.R. 41 (C.A.), refd to. [para. 10].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1, refd to. [para. 13].

MacPhail v. Desrosiers (1998), 165 N.S.R.(2d) 32; 495 A.P.R. 32 (C.A.), refd to. [para. 14].

MacCulloch v. McInnes, Cooper & Robertson (2000), 186 N.S.R.(2d) 398; 581 A.P.R. 398; 2000 NSCA 92, refd to. [para. 17].

Dillon v. Kelly (1995), 145 N.S.R.(2d) 194; 418 A.P.R. 194 (C.A.), refd to. [para. 17].

Counsel:

Jean McKenna, for the appellants;

Jason Gavras, for the respondent.

This application was heard in Chambers on April 14, 2011, before Bryson, J.A., of the Nova Scotia Court of Appeal, who delivered the following decision on May 3, 2011.