



COURT OF APPEAL FOR ONTARIO

CITATION:
Picavet v. Clute, 2012
    ONCA 441

DATE: 20120621

DOCKET: M41440 (C55469)

Feldman J.A. (Chambers)

BETWEEN

Michael John Picavet

Appellant (Plaintiff)

and

Elizabeth
    Pearl Marie Clute
,
Nicole Marie Stella
and

Lormel Developments
    (Bradford) Ltd.

Respondents (Defendants)

Patrick Summers, for the appellant

Duncan Boswell, for the respondents

Heard: June 20, 2012

On appeal from the judgment of Justice Susan E. Healey of
    the Superior court of Justice, dated April 11, 2012.

ENDORSEMENT

[1]

The appellant has appealed the judgment of the trial judge that
    dismissed his action against his mother, the respondent Clute. He claimed that
    they made a contract wherein she agreed to give him a significant portion of her
    land. When that land was sold, she took back a vendor take back mortgage. The
    VTB was later paid in full and on consent, the proceeds were held in trust by
    the respondents solicitors pending the outcome of the trial. As part of the
    order dismissing the action, the trial judge also ordered that after 30 days, the
    VTB funds could be paid out of trust to the respondent.

[2]

On this motion the appellant asks in the alternative for: (1) in effect
    a declaration that Rule 63.01 automatically stays the order of the trial judge
    for the payment out of trust of the VTB funds; or (2) in the alternative, if
    that rule does not apply, then for an order under Rule 63.02 for a stay of that
    part of the order pending appeal.

Automatic Stay  Rule 63.01

[3]

Rule 63.01 provides an automatic stay upon appeal of any provision of
    the order for the payment of money. There was no order for the payment of
    money made by the trial judge in this case  the action was dismissed. An order
    for the payment out of a fund that is being held pending the outcome of the
    action is not an order referred to in the Rule unless that fund is a judgment
    debt created by the order of the trial judge.

[4]

This point was addressed by Rosenberg J.A. in
1013799 Ontario v. Kent
    Line International Ltd.
, [2002] O.J. No. 4214 (C.A.) In that case, the
    plaintiffs action against the defendant was successful. When the defendant
    appealed, it sought a stay of the order for payment out to the plaintiff of
    the money that had been paid in by the plaintiff for security for costs of the
    trial. The motion for a stay on appeal was dismissed. The plaintiff had won the
    trial. There was no longer any need for the winning party, now the respondent
    on the appeal, to post security for costs. The order for payment out was a housekeeping
    matter.

[5]

The same analysis applies to the order for payment out in this case.
    By dismissing the action, the trial judge confirmed that the money held in
    trust belonged to the respondent and was not payable to the plaintiff.  The
    order for payment out merely facilitated that finding.

Should the Court Order a Stay?

[6]

In the alternative, the appellant asks this court to order a stay, pending
    the outcome of the appeal, of the order to pay out to the respondent the vendor
    take back mortgage funds being held by the respondents solicitors.

[7]

The court applies the three part test also applicable to an interlocutory
    injunction:

(a) serious issue on the
    appeal;

(b) will there be
    irreparable harm if the stay is not granted; and

(c) the balance of
    convenience.

[8]

I am not satisfied that the appellant has met its onus to show that any
    of the three criteria have been met:

(a) The appellant submits
    that the trial judge was focused on the wrong time period for when the contract
    was formed and that she did not appreciate the effect of the 467 spread sheet. The
    trial judges reasons are lengthy and thorough. She made detailed findings of
    fact and mixed fact and law, holding that there was no intent to contract, no agreed
    upon terms of a contract, and that instead, the respondent had agreed to give the
    appellant a gift, which is an unenforceable promise. Based on this record, it
    would be difficult to show on appeal that the trial judge made a reversible
    error.

(b) There is also no
    indication of irreparable harm to the appellant. There is no basis to conclude
    that the respondent is going to move the funds off-shore and, in any event, she
    appears to be a wealthy woman, able to satisfy a judgment.

(c) Finally, regarding the
    balance of convenience, the respondent argues that although she does not need
    the money, it is hers and she is entitled to it at this point. I agree.

Conclusion

[9]

For these reasons, the motion is dismissed with costs to the respondent
    fixed at $7,500, inclusive of disbursements and H.S.T.

K. Feldman J.A.


