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. Tega Homes (Attika) Inc. v. Spencedale Properties Limited

In Tega Homes (Attika) Inc. v. Spencedale Properties Limited (Ont CA, 2022) the Court of Appeal considered an unusual appellate motion where the appellant, seeking to free real estate that was subject of a certificate of pending litigation and a writ of seizure and sale, sought to pay the trial award into court (in case they lost the appeal):
[14] To vacate the CPLs and Writ, the Appellants have brought these two related motions. In the appeal from the Judgment, the Appellants seek an order that, upon payment into court of the amount of the Judgment under r. 72.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the Writ would be expunged and the CPLs discharged from title. In the appeal from the CPL Order, they move to set aside that order pursuant to s. 134(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), which permits an appeal court to make “any interim order that is considered just to prevent prejudice to a party pending the appeal.”

[15] As a practical matter, the Appellants’ motions are joined at the hip, as the sale to Taggart cannot close unless the impediments of both the Writ and the CPLs are removed. The Appellants’ substantive argument is based on that linkage. They argue as follows:
. Rule 63.03(6) permits an appellate court judge to set aside a writ of execution where an appellant gives security satisfactory to the court;

. The Appellants are prepared to pay into court the amount of the Judgment, in respect of which the Writ was issued;

. If the court is prepared to set aside the Writ upon the payment into court of such an amount, then practical necessity dictates discharging the two CPLs registered against the Properties in order to enable the sale to Taggart to close. Such a discharge can be ordered under s. 134(1)(c) of the CJA, which authorizes an appeal court to “make any other order or decision that is considered just.” According to the Appellants, the CPLs should be discharged because Tega amended its pleading prior to trial to abandon any claim for an interest in the Properties and, without a claim for an interest in the Properties, the CPLs must be vacated: CJA, s. 103(6)(a)(ii).


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