



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Dosanjh v. Singh,









2011 BCCA 28




Date: 20110120

Docket: CA038285

Between:

Jaswinder Kaur
Dosanjh

Respondent

(Plaintiff)

And

Rupinder Singh

Appellant

(Defendant)




Before:



The Honourable Mr. Justice Low





The Honourable Mr. Justice Chiasson





The Honourable Madam Justice Bennett




On judicial review
from: Court of Appeal of British Columbia, September 29, 2010
(
Dosanjh v. Singh
, 2010 BCCA 425, Court of Appeal Reg. No. CA038285)

Oral Reasons for Judgment




Counsel for the Appellant:



G.M. Niemela





Counsel for the Respondent:



S.M. Dewar





Place and Date of Hearing:



Vancouver, British
  Columbia

January 17, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia

January 20, 2011








[1]

BENNETT J.A.
: This is a review from the decision of Mr. Justice
Lowry refusing to stay an order for sale of a home jointly owned by the parties.
Mr. Singh framed the application as a review of a refusal to grant leave on
this issue. However, Lowry J. A. granted leave; he did not grant the stay of
the order for sale.

[2]

Ms. Dosanjh and Mr. Singh were married in India in 1995. Unbeknownst to
Ms. Dosanjh, Mr. Singh obtained a divorce in British Columbia in 1997. The two
began living together in B.C. in 1999 and, in 2002, bought a home, which was
registered in their names jointly. They separated in 2008. Mr. Singh continues
to reside in the home.

[3]

Ms. Dosanjh commenced this action in 2008. She sought partition and sale
of the home, as well as damages for a fraudulent divorce. Mr. Singh was served
with the writ of summons, but did not enter an appearance. Ms. Dosanjh took
default judgment nine months after he was served. Damages and costs were to be
assessed.

[4]

In January 2010, Ms. Dosanjh applied for an order for the sale of the
home and an accounting of money allegedly owed to her by Mr. Singh. Mr. Singh
was not served with this application. The judge ordered the home to be sold and
the net proceeds divided equally. Ms. Dosanjh was granted conduct of the sale
of the home, but Mr. Singh was permitted to remain in the house pending the
sale, subject to his cooperation with the realtor.

[5]

The judge also ordered a sum of money be paid to Ms. Dosanjh for
occupational rent, as well as $27,630 which Ms. Dosanjh deposed was half of the
rent received from the tenants of a suite in the house. Costs to be assessed
were also ordered.

[6]

Mr. Singh was given copies of these orders, and although he consulted
counsel, no steps to set aside the orders were immediately taken. It was not
until June 2010, after he refused entry to the premises by a real estate agent,
that Mr. Singh brought applications to set aside the default judgment and to
reconsider the order for sale of the house and the corollary relief. The
applications were heard mid-July with judgment rendered the same day.

[7]

Mr. Singh took issue, with, amongst other things, the accounting
regarding rent and mortgage payments.

[8]

The judge dismissed Mr. Singhs application and made an order granting
Ms. Dosanjh possession of the home for the purposes of sale, requiring Mr.
Singh to vacate the home.

Reasons of Lowry J.A.

[9]

Lowry J.A. held that the parties did not require leave to appeal the
order for default judgment as it was a final order. He granted leave to appeal
the order for sale of the home as the fact Mr. Singh was not served with the
application was sufficiently important for the matter to go before the court. Lowry
J.A. applied the test in
RJR - MacDonald Inc. v. Canada (Attorney General)
,
[1994] 1 S.C.R. 311 at 334, in considering the stay applications: whether there
is merit in the appeal, whether failure to stay will cause irreparable harm,
and where the balance of convenience lies.

[10]

He stayed the judgment against Mr. Singh with respect to both the
occupational and collected rent because if the appeal was allowed, then a new
accounting would occur and his claim regarding the mortgage payments would be
considered. Lowry J.A. also stayed the order requiring Mr. Singh to vacate the
home, subject to his cooperation with the process of the sale.

[11]

Lowry J.A. did not stay the order for sale of the home. There was merit
to the appeal based on the lack of service, but he concluded that the sale of
the home was inevitable. Ms. Dosanjh was entitled to partition and sale of the
property. He concluded that the balance of convenience favoured the sale of the
house. This is the part of the order which is under review.

Test on review

[12]

A division of this court will not interfere with the discretionary
decision of a single justice to refuse a stay absent evidence that the judge
applied the wrong test, erred in principle, or misapprehended material facts. See
DeFehr v. DeFehr
, 2002 BCCA 139 at para. 6.

Discussion

[13]

During the course of argument, counsel for Mr. Singh acknowledged that
his clients real concern is that he will not have an opportunity to buy out
Ms. Dosanjhs interest in the house because the order for sale is not subject
to court approval. There appears to be nothing preventing Mr. Singh from
returning to the trial court and seeking court approval as a term of the order
as it was not considered by the judge in the court below.

[14]

Mr. Singhs other concern is that Ms. Dosanjh will sell the property to
a friend or family member for less than market value. The order in the court
below clearly contemplates that the house be listed for sale on the public
market and sold at market value.

[15]

In my respectful view, Lowry J.A. applied the correct test for a stay of
execution of an order, he did not err in principle, and he did not misapprehend
the facts. Ms. Dosanjh is entitled to an order for sale as a joint tenant and
as Lowry J.A. found, the balance of convenience clearly lies with the sale
rather than delaying and possibly relitigating the inevitable.

[16]

Mr. Singh may apply for a remedy in the trial court to alleviate his
concerns regarding the sale of the property.

[17]

I would dismiss the application for review.

[18]

LOW J.A.
: I agree.

[19]

CHIASSON J.A.
: I agree.

[20]

LOW J.A.
: The application for review is dismissed.

The Honourable Madam Justice Bennett


