



COURT OF APPEAL FOR ONTARIO

CITATION: Paterson Veterinary Professional Corporation v.
    Stilton Corp. Ltd., 2018 ONCA 967

DATE: 20181129

DOCKET: M49784 (C65863)

Lauwers J.A. (Motions Judge)

BETWEEN

Paterson Veterinary
    Professional Corporation

Respondent (Applicant)

and

Stilton Corp. Ltd.

Appellant (Respondent)

R. Seumas M. Woods, for the appellant

David Fogel, for the respondent

Heard: November 26, 2018

REASONS FOR DECISION

[1]

By a judgment released August 21, 2018, Tzimas J. of the Superior Court
    of Justice, ordered Stilton Corp. Ltd., the appellant, to transfer title to
    certain real property to Paterson Veterinary Professional Corporation, the
    respondent, no later than September 20, 2018. The application judge enforced a
    settlement agreement between the parties, dated December 20, 2013.

[2]

According to the reasons, at para. 17: [a]s of January 1, 2018, the
    basic rent came to $6,460.71 plus HST, for a total sum of $7,300.60, and an additional
    $1,521.69 plus HST, or $1,719.51 per month, on account of realty taxes and
    insurance. According to the affidavit of Marjorie Patterson, the monthly TMI
    is $1,719.51. She deposes that the respondent has deposited both the base rent
    and the TMI into its lawyers trust account since February 2018.

[3]

The appellant moves for an order staying the judgment pending final
    disposition of the appeal and an order requiring the respondent to make
    monthly payments of taxes, maintenance and insurance (TMI), and rent, in
    respect of the Property.

[4]

The parties have agreed to a consent order on the following terms:

a)

The
    Judgment is hereby stayed pending final disposition of the appeal herein;

b)

Pending final disposition of the appeal herein, the applicant
    (respondent in appeal) Paterson Veterinary Professional Corporation
    (Paterson) shall be entitled to remain in possession of the property known
    municipally as 981 Clarkson Road, Mississauga (the Property), and that Stilton
    shall not take any steps to interfere with its quiet possession of the
    Property; and

c)

Pending final
    disposition of the appeal herein Paterson shall pay to Stilton the sum of
    $1,719.51 per month for taxes, maintenance, and insurance (TMI) starting as
    of February 1, 2018, without prejudice to Patersons right to argue that no TMI
    is properly due and payable to Stilton.

[5]

However, the parties have not agreed on the disposition of the rent
    pending appeal. The appellant seeks an order of the court requiring the
    respondent to pay rent of $7,300.60 monthly to it, pending appeal, instead of
    depositing that amount monthly into the trust account of the respondents
    lawyer. The appellant argues that there is no conceivable basis on which the
    respondent could occupy the premises entirely free of costs apart from TMI. Counsel
    recognizes that the old rent figure under the lease might well be the high
    watermark of the occupation costs that a court might order in this case. But he
    notes that if the appeal fails and the respondent is entitled to specific
    performance or to damages in lieu of specific performance, then there is more
    than enough equity left in either the property itself or in any award of
    damages to keep the respondent whole.

[6]

The respondent argues that the appellant is the author of its own
    misfortune and should not be rewarded for breaching the settlement agreement.

[7]

In effect, the appellant is seeking interim relief. The jurisdictional
    basis for a term granting interim relief is that it is incidental to granting a
    stay under rule 63.02 of the
Rules of Civil Procedure
. The consent to
    a stay obviates the need to parse the elements of the test for a stay set out
    in
RJR-Macdonald Inc. v. Canada (Attorney-General)
, [1994] 1 S.C.R.
    311.

[8]

However, it seems to me that where the applicant for a stay is also
    seeking a term that amounts to interim relief, then by analogy to the
RJR-Macdonald
test the court must be satisfied that the applicant will
    suffer irreparable harm if that term of the stay, requiring the respondent to
    pay the rent of $7,300.60 monthly to the appellant, pending appeal, is not
    granted. The facts presented to the court do not show such harm. Accordingly, I
    decline to add that term to the order.

P Lauwers J.A.


