



COURT OF APPEAL FOR ONTARIO

CITATION: Tisi v. St. Amand, 2017 ONCA 539

DATE: 20170627

DOCKET: M47973 (C63870)

Brown J.A. (In Chambers)

BETWEEN

Lynn Tisi

Applicant

(Appellant)

(Moving Party)

and

Claude St. Amand

Respondent

(Respondent)

(Responding Party)

Derek
    A. Schmuck, for the moving party

Duncan
    M. Macfarlane, for the responding party

Heard: June 23, 2017

REASONS FOR DECISION

A.

MOTION FOR A STAY PENDING APPEAL

[1]

The
    parties dispute the validity and enforceability of an Agreement of Purchase and
    Sale dated November 2, 2016 (the Agreement) for the purchase of a residential
    house by the moving party appellant, Lynn Tisi, from the respondent, Claude St.
    Amand. As a result of their dispute, both commenced applications: Ms. Tisi
    sought specific performance of the Agreement, with a claim for damages in lieu;
    Mr. St. Amand sought a declaration the Agreement was null and void, together
    with an injunction prohibiting Ms. Tisi from encumbering title to the property.
    Ms. Tisi obtained and registered a certificate of pending litigation (CPL)
    against the property prior to the hearing of the applications.

[2]

By
    reasons dated May 19, 2017, the application judge found the parties were not
ad idem
on
    the essential elements of the contract and declared no valid agreement of
    purchase and sale was entered into by them. She ordered Mr. St. Amand to return
    the $10,000 deposit to Ms. Tisi. He did, but Ms. Tisi has not cashed the
    cheque. The application judge also ordered Ms. Tisi to discharge the
    certificate of pending litigation (CPL) she registered against the property.
    Ms. Tisi has not.

[3]

Instead,
    Ms. Tisi filed a notice of appeal dated June 5, 2017. She now moves for a stay
    pending appeal of para. 3 of the Judgment directing her to discharge the CPL.

B.

GOVERNING PRINCIPLES

[4]

The
    principles governing the granting of a stay pending appeal are those set out in
RJR-MacDonald Inc.
    v. Canada (Attorney General)
, [1994] 1 S.C.R. 311, at p.
    334, as explained and applied by this court in several decisions, including
BTR Global Opportunity Trading
    Limited v. RBC Dexia Investor Services Trust
, 2011 ONCA 620, at
    paras. 18 and 19, and
Yaiguaje v. Chevron Corporation
, 2014 ONCA 40, at para. 19.
    The over-arching principle is that the court must decide whether the interests
    of justice call for a stay.

C.

ANALYSIS

Serious question for appeal

[5]

The
    party seeking a stay must demonstrate her appeal raises serious issues for
    appeal. The threshold to overcome is a low one. Although the grounds of appeal
    advanced by Ms. Tisi in her notice of appeal largely concern questions of fact
    or mixed fact and law where a deferential standard of review applies, I am
    satisfied she has met the low threshold for establishing a serious question for
    appeal.

Irreparable harm

[6]

Under
    the second element of the
RJR-MacDonald
test, Ms. Tisi must establish she will
    suffer irreparable harm should a stay not be granted. Generally, demonstrating
    irreparable harm requires the moving party to establish she will suffer a loss
    not quantifiable in monetary terms.

[7]

In
    the present case, Ms. Tisi sought specific performance of the Agreement or, in
    the alternative, damages in lieu thereof. Specific performance should not be
    granted as a matter of course absent evidence that the property is unique to
    the extent that its substitute would not be readily available:
Semelhago v. Paramadevan
,
    [1996] 2 S.C.R. 415, at para. 22.

[8]

In
    an affidavit on the application, Ms. Tisi deposed the house at issue is a
    custom-built one. The respondent did not file any evidence disputing that
    characterization. Given Ms. Tisis evidence, I am satisfied she has
    demonstrated she would suffer irreparable harm should a stay not be granted.

Balance of convenience

[9]

The
    balance of convenience branch of the stay test requires a court to consider and
    balance the respective harm to each party from the grant or refusal of a stay.

[10]

Ms.
    Tisi has filed evidence that Mr. St. Amand was wrapping things up in Welland
    and moving further north in Ontario. As well, she has filed the results of some
    title searches that disclose Mr. St. Amand sold three properties in the Niagara
    area during May 2017. This evidence may well support an inference that Mr. St.
    Amand is wrapping up his business in the Niagara area, but it does not suggest
    he lacks assets in Ontario.

[11]

In
    his factum, Mr. St. Amand argues the CPL places an unfair burden on him by
    preventing the sale of the house and accounting to his mortgagee and other
    creditors. Although he did not file evidence to support those submissions, it
    is common sense that the house likely will remain unsold as long as a CPL is
    registered against title.

[12]

That
    said, I am puzzled by the lack of a responding affidavit from Mr. St. Amand on
    this motion. In his February affidavit on the application, he talked about the
    need for his business to close the sale to Ms. Tisi by mid-March of this year.
    Yet, he has not filed any evidence about the current state of affairs regarding
    the house  Is it finished? Is he trying to sell it?  or about the effect of
    the CPL on his business. Simply put, there is a lack of evidence about what
    prejudice, if any, the continued registration of the CPL is causing Mr. St.
    Amand.

[13]

When
    one adds to this state of the record Ms. Tisis willingness to expedite her
    appeal, I see the balance of convenience tipping in her favour.

Conclusion

[14]

Ms.
    Tisi has met the low threshold of establishing a serious question on appeal,
    she has demonstrated some irreparable harm, and the balance of convenience tips
    in her favour. The over-arching principle is that the court must decide whether
    the interests of justice call for a stay. In the present circumstances, I am
    satisfied Ms. Tisi has demonstrated a stay should be granted.

D.

DISPOSITION

[15]

For
    the reasons set out above, I grant the motion. I order Ms. Tisi to perfect her
    appeal by July 17, 2017, following which the parties shall secure an expedited
    date for the hearing of this appeal.

[16]

I
    fix the costs of this motion at $3,000, payable in the cause of the appeal.

David Brown J.A.


