Stay of Proceedings

Stay of ProceedingsGerritse v Hospital For Sick Children 2017 ONSC 1859 dealt with an application for a stay of proceedings in one court case until the paternity issue in another case was firstly decided.

The Court refused the application and cited the law as previously set out in Leung Estate v Leung 2004 CarswellOnt 1366.

 

20] The law is well-settled as to what is required for a stay to be granted in this type of situation. Special circumstances are required. This must be viewed as one of the clearest of cases.

Two conditions must be met, both of which the moving parties have responsibility to demonstrate on a balance of probabilities:

(i) that continuance of the Application would work an injustice because it would be oppressive or vexatious or would amount to an abuse of process, and

 

(ii) the stay would not cause an injustice to the Applicants. Leung Estate v. Leung, 2004 CarswellOnt 1366 (S.C.J.), at paragraph 28, citing the decision of Justice Blair, as His Honour then was, in Canadian Express Ltd. v. Blair (1992), 11 O.R. (3d) 221 (Gen. Div.).

 

 

 Leung Estate v Leung stated:

 

28      In Canadian Express Ltd. v. Blair (1992), 11 O.R. (3d) 221 (Ont. Gen. Div.), Mr. Justice Blair set out the general principles that have been followed by the Court in this regard. Firstly, a stay should only be ordered when special circumstances are shown to exist. It will only be ordered in the clearest of cases. In quoting from McNair J. in Varnam v. Canada (Minister of National Health & Welfare) (1987), 12 F.T.R. 34 (Fed. T.D.), at p. 36 of that decision, Mr. Justice Blair quotes the following:

In order to justify a stay of proceedings two conditions must be met, one positive and the other negative: (1) the defendant must satisfy the court that the continuance of the action would work an injustice because it would be oppressive or vexatious to him or would be an abuse of the process of the court in some other way; and (b) the stay must not cause an injustice to the plaintiff. On both the burden of proof is on the defendant. Expense and inconvenience to a party or the prospect of the proceedings being abortive in the event of a successful appeal are not sufficient special circumstances in themselves for the granting of a stay.

 

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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