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Stays - Stay of Execution [R20.08]

Despite it's dramatic name, this section is about suspending the enforcement of court orders that are undertaken by any of several procedures - such as garnishment, various writs and so on [set out in Rule 60]. They sometimes have the same characteristics as a R21.01(3)(c) motion as they are brought delay execution until the completion of the full trial.

. Sub-Prime Mortgage Corporation v. Kaweesa

In Sub-Prime Mortgage Corporation v. Kaweesa (Ont CA, 2021) the Court of Appeal held that a stay ordered by the trial court, defaulted upon, may be lifted by the appeal court under CJA s.134(2):
[43] The moving parties submit that, given the responding parties’ breach of the Stay Condition, the Temporary Stay should be lifted and a writ of possession should issue. They argue that since this matter is now before this court, Stinson J. is functus and lacks the jurisdiction to make such an order. Therefore, they submit that I have authority to grant the order sought as a single judge of the Court of Appeal, either by necessity or pursuant to s. 134(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), which provides as follows:
On motion, a court to which a motion for leave to appeal is made or to which an appeal is taken may make any interim order that is considered just to prevent prejudice to a party pending the appeal.
[44] I agree with the moving parties that CJA s. 134(2) authorizes an appellate court to remove a stay as an interim order pending an appeal: Paul M. Perell and John W. Morden, The Law of Civil Procedure in Ontario, 4th ed. (Toronto: LexisNexis Canada, 2020), at ¶12.160. As acknowledged by Laskin J.A. (in Chambers), the jurisdiction conferred by s. 134(2) may be exercised by a single judge of this court pursuant to s. 7(2) of the CJA: Hakim Optical Laboratory Ltd. v. 1570710 Ontario Ltd., 2010 ONCA 627, [2010] O.J. No. 4102, at para. 5.

[45] The jurisdiction under CJA s. 134(2) is broad, but it is not unlimited. The focus of any remedy provided under s. 134(2) must be on preventing prejudice in the context of the appeal and the interests of justice: Waxman v. Waxman (2003), 2003 CanLII 22440 (ON CA), 168 O.A.C. 217, at para. 21 (C.A.).

[46] The test for granting relief under s. 134(2) is the same as that for granting a stay pending appeal pursuant to r. 63.02(1): Abuzour v. Heydary, 2015 ONCA 249, 126 O.R. (3d) 101, at para. 24. It is based on the test for an interlocutory injunction set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334. Namely, it must be established that it is in the interests of justice to exercise the judge’s discretion to lift or remove the stay, given the relative strengths and weaknesses of the following criteria:
1) there is a serious question to be adjudicated on appeal;

2) the moving party would suffer irreparable harm if the relief were refused; and

3) the balance of convenience favours the moving party (i.e., the moving party would suffer greater harm if the relief were not granted than would the responding party if the relief were granted).
. Heliotrope Investment Corporation v. 1324789 Ontario Inc.

In Heliotrope Investment Corporation v. 1324789 Ontario Inc. (Ont CA, 2021) the Court of Appeal extensively considered jurisprudence on staying main claim enforcement pending a decision on a counterclaim, under R20.08:
20.08 Where it appears that the enforcement of a summary judgment ought to be stayed pending the determination of any other issue in the action or a counterclaim, crossclaim or third party claim, the court may so order on such terms as are just.:

.....

[40] The Beach parties argue that the motion judge should have stayed the summary judgments under r. 20.08 of the Rules of Civil Procedure pending the determination of other issues in the parties’ litigation. Rule 20.08 provides:
Where it appears that the enforcement of a summary judgment ought to be stayed pending the determination of any other issue in the action or a counterclaim, crossclaim or third party claim, the court may so order on such terms as are just.
[41] The Beach parties argue that the motion judge erred by applying the wrong standard. They submit that a stay should be granted under r. 20.08 unless the counterclaim is without merit. As Epstein J.A. stated in Hinke v. Thermal Energy International Inc., 2012 ONCA 635, at para. 29:
The law is clear that a stay should be granted unless the counterclaim is without merit: Freedom International Brokerage Company v. Anastakis (2006), 2006 CanLII 31911 (ON SC), 21 B.L.R. (4th) 246 (Ont. S.C.). It is significant that Hinke did not, in the relief sought in his motion for summary judgment, seek dismissal of the counterclaim. By inference, Hinke must consider the counterclaim as having sufficient merit so as to raise a genuine issue requiring a trial.
Hinke reflects a line of jurisprudence spanning several versions of the rules governing civil procedure in Ontario.

[42] However, the motion judge relied on the approach to r. 20.08 described in Zucchetti Rubinetteria S.P.A. v. Natphil Inc., 2011 ONSC 2275, at para. 15, per Perell J., aff’d 2011 ONCA 726:
The jurisdiction to grant a stay is discretionary and depends on the facts of the case. In exercising its discretion, the court will consider such factors as: (a) whether the plaintiff resides out of the jurisdiction or is impecunious and potentially unable to satisfy a judgment on the defendant's counterclaim; (b) whether factually the claim and the counterclaim are closely connected; (c) whether the counterclaim appears to be meritorious; (d) whether the counterclaim was tardy or appears to be an afterthought to the plaintiff’s claim; and (e) whether the counterclaim appears to have been brought for delay or for tactical reasons. [Citations omitted.]
[43] The motion judge’s discretionary, multi-factorial approach to r. 20.08 is also well-supported by the jurisprudence.[6]

(1) The Governing Principles Concerning Stays Under r. 20.08

[44] Two distinct and somewhat inconsistent approaches to r. 20.08 have emerged. The first might be called the merits test, which arose in the jurisprudence under the old Rules of Practice. The second is the multi-factorial test, which has emerged since 1985 under the Rules of Civil Procedure. I explain the origin of each test and then consider how they should be reconciled.

(a) The Merits Test

[45] The merits test is reflected in Hurwitz v. Baz, [1955] O.J. No. 352 (C.A.), an oral endorsement of this court under the old Rules of Practice. The court said:
Rule 56, which has been called to our attention, provides a counter claim shall be deemed to be a defence within the meaning of the rule. The affidavit of merits does set up a counter claim and there is nothing in the record to show that that counter claim is without [merit]. We are, therefore, of the opinion that the learned Judge erred in directing judgment to be entered for the plaintiff in these circumstances without staying proceedings on the claim of the plaintiff until the counter claim was disposed of.[7]
[46] To explain the terminology at play, I note that the old Rules of Practice allowed the plaintiff to issue a specially endorsed writ of summons where the claim was “to recover a debt or liquidated demand in money” arising in certain prescribed circumstances, such as recovery on a cheque, promissory note, or bill of exchange, or recovery on a mortgage.[8] To defend against a specially endorsed writ, the defendant was required to serve and file an affidavit of merits setting out a defence to the action within 15 days.[9] If the defendant did not do so, the plaintiff was entitled to sign default judgment and proceed to execution. Under r. 42(4), a counterclaim was deemed to be a defence to a specially endorsed writ. The plaintiff could cross-examine the defendant on the affidavit of merits, and either move for judgment or convert the action into one destined for trial.[10]

[47] Rule 118 of the Rules of Practice applied where the defendant had a counterclaim. It provided: “Where a defendant does not dispute the plaintiff’s claim but sets up a counter-claim, the court may stay proceedings respecting the claim until the counterclaim is disposed of.” This court invoked r. 118 in General Printers Ltd. v. Algonquin Publishing Co., [1970] O.J. No. 1534 (C.A.), and found, at para. 5, the appropriate question to be whether the counterclaim could “give rise to a triable issue” or whether “the defendants would necessarily fail to gain success”.[11]

[48] As can be seen by this court’s decision in Hinke in 2012, the merits test survived the adoption of the Rules of Civil Procedure in 1985.[12]

[49] The gist of the jurisprudence on the merits test for a stay can be distilled. First, the court may stay the judgment if the defendant alleges a legal set-off, as Strathy J. (as he was then) noted in Univar Canada Ltd. v. Pax-All Manufacturing Inc., 2008 CanLII 44741 (Ont. S.C.), at para. 12:
There are two requirements of legal set-off. First, both obligations – the plaintiff's claim and the defendant's claim for which set-off is asserted – must be debts. Second, the debts must be mutual cross-obligations. A mutual cross-obligation is a debt due from each party to the other for liquidated sums, or money demands which can be ascertained with certainty at the time of pleading: see Telford v. Holt [(1987), 1987 CanLII 18 (SCC), 41 D.L.R. (4th) 385] at 393.
[50] Second, the court may stay the judgment if the counterclaim constitutes an equitable set-off, as Strathy J. noted in Univar. He set out the elements of equitable set-off, at para. 15, summarizing this court’s test in Algoma Steel Inc. v. Union Gas Ltd., 2003 CanLII 30833 (ON CA), [2003] O.J. No. 71 (C.A.), at para. 26:
1. The party relying on a set-off must show some equitable ground for being protected against the adversary's demands.

2. The equitable ground must go to the very root of the plaintiff's claim.

3. A cross-claim must be so clearly connected with the demand of the plaintiff that it would be manifestly unjust to allow the plaintiff to enforce payment without taking into consideration the cross-claim.

4. The plaintiff's claim and the cross-claim need not arise out of the same contract.

5. Unliquidated claims are on the same footing as liquidated claims.
[51] Third, the court will consider the strengths and weaknesses, or the merits of the counterclaim. As noted in Hinke, a stay will be issued where the counterclaim has some merit. If the counterclaim is without merit or a sham, a stay will not be issued.

[52] The underlying purpose of the merits test for a stay is to ensure that the defendant’s claims against the plaintiff are fully determined on their merits before the plaintiff can enforce judgment.

(b) The Multi-Factorial Test

[53] The multi-factorial test emerged from the policy orientation of the Rules of Civil Procedure. Walter Williston was tasked with proposing a modernization of the Rules of Civil Procedure and released his proposal in June 1980. The terms of reference provided to him included the need to balance “expense… against convenience, efficiency and social purpose” and the “consideration of alternative, more expeditious and less formal adjudicative procedures”.[13] In describing the proposed changes to summary judgment, he described how plaintiffs had seldom been able to obtain judgment on contested specially endorsed writs: “No matter how shadowy or unlikely a defence is disclosed by the Affidavit, the Court has been exceedingly reluctant to allow the plaintiff to obtain judgment without giving the defendant the right to go to trial.”[14] Mr. Williston’s proposal included the current wording of r. 20.08.[15]

[54] Morden J.A. was tasked with the revision of the Rules of Civil Procedure after Mr. Williston’s death. He noted that the goal presented in r. 1.04(1), being “the just, most expeditious and least expensive determination of every civil proceeding on its merits,” must be balanced against the competing demands of “the desire to provide a mechanism that will assist in ascertaining the truth, on the one hand and, on the other, the concern not to make litigation too cumbersome or expensive.”[16] Balancing is necessary because “it is not possible to achieve perfection in the solution to all problems.”[17]

[55] The discretionary, multi-factorial approach allows for a stay to be refused where its imposition would lead to prejudice, or disproportionate delay or expense to the plaintiff. It seeks to achieve the effective summary judgment procedure sought by Mr. Williston and the balance sought by Morden J.A.

(c) A Restated Multi-Factorial Approach to r. 20.08

[56] In 35 years of experience with r. 20.08, judges have developed several factors to be taken into account in considering whether to exercise discretion to grant a stay under r. 20.08.[18] The principle of fundamental fairness is the basis for equitable set-off, which underpins the rule and requires an assessment of the equities between the parties.[19] The multi-factorial test can now be restated.

[57] The first factor is the merits of the counterclaim. On balance, the stronger the merits, the more likely the stay. If there is little or no merit to the counterclaim, a stay is not warranted. But if there is some merit, a stay might be warranted because it might be impossible to know before the trial of the counterclaim who will be the net winner and it would be unjust to compel the defendant to pay the judgment in advance. A court is therefore required to undertake a more robust assessment of the merits rather than making a simple finding that the counterclaim is not without merit.[20] Other factors must also be considered and balanced. For example, a legal set-off is a complete defence to the extent of the set-off and might warrant a partial, if not a complete, stay of the plaintiff’s judgment.[21] The analysis of the impact of an equitable set-off is more nuanced, as the next factors show.

[58] The second factor is the relationship between the judgment and the counterclaim. On balance, the closer the relationship, the more likely the stay.[22] If the relationship is very close, for example, in the context of the same or a closely connected transaction, then the argument is stronger that it would be unfair or unjust to allow the plaintiff to enforce a judgment before the disposition of the counterclaim. If the parties are the same but the disputes are not factually related, then the fairness argument is weaker.

[59] The third factor is the conduct of the defendant, including whether the counterclaim was launched late, or for strategic purposes, or for the purpose of delay. Questionable litigation strategy is part of this factor, including the failure to diligently pursue the counterclaim.[23]

[60] The fourth factor is the balance of prejudice to the parties. As examples, a court might need to balance the plaintiff’s need for the funds as against a weak counterclaim,[24] assess whether the defendant is able to pay the judgment now but possibly unable to do so in the future, or consider if the plaintiff is impecunious or resides out of the jurisdiction, which puts in doubt the defendant’s recovery on a counterclaim that has some merit.[25]

[61] The fifth factor is whether the terms of a stay can sufficiently mitigate the negative effects on the plaintiff. Rule 20.08 provides that where it appears a judgment ought to be stayed, “the court may do so on such terms as are just.” In describing the phraseology and syntax adopted in drafting the Rules of Civil Procedure, Morden J.A. commented that the phrase, “as are just” or “as is just”, confers the power described in objective rather than subjective terms (as may be expressed by “as are considered just”).[26] As examples, the court could make an order requiring the payment of the judgment into court,[27] requiring the judgment to be paid on a net basis where the judgment exceeds the counterclaim,[28] or requiring the trial of the counterclaim to be expedited where that has a realistic prospect of success.[29]

[62] The factors set out above are interrelated but not exhaustive. More than one can apply in any given situation.

[63] This restated multi-factorial approach has substantial support in the cases, and, in my view, best achieves both the purposes of r. 20.08 and the summary judgment procedure as well as the goals of the Rules of Civil Procedure more broadly in securing the just, most expeditious and least expensive determination of every civil proceeding on its merits.
. MCC Mortgage Holdings Inc. v. Mundulai

In MCC Mortgage Holdings Inc. v. Mundulai (Ont CA, 2020) the Court of Appeal considered the test for staying a writ of possession:
[21] I now turn to the request for a stay of the writ of possession pending the appeal to this court from the decision of April 30, 2020.

[22] The factors to be considered are:
1. Is there a serious issue to be tried?

2. Will the appellant suffer irreparable harm if the stay is not granted?

3. Does the balance of convenience favour granting a stay?
See RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311.
. Peerenboom v. Peerenboom

In Peerenboom v. Peerenboom (Ont CA, 2020) the Court of Appeal considered a stay of writ of execution under the general stay authority under CJA 106 (as opposed to provisions under the FLA):
[30] Nevertheless, as I will explain, the stay of the execution of Harold’s judgment was justified under s. 106 of the CJA. Section 106 provides that “[a] court on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just”. This general authority of the court to stay a proceeding can be applied to the enforcement of a judgment. See Zanetti Estate v. Roltford Developments Ltd., [1990] O.J. No. 2584 (S.C.); Buttarazzi v. Buttarazzi (2009), 2009 CanLII 80136 (ON SC), 84 R.F.L. (6th) 240 (Ont. S.C.); and 1247902 Ontario Inc. v. Carlisle Power Systems Ltd., [2003] O.J. No. 6300 (Div. Ct.), at para.10, aff’d 2005 CanLII 691 (Ont. C.A.).[31] Harold submits that the circumstances of this case did not meet the high threshold for relief under this provision, and that it would be inappropriate to uphold the stay under the CJA because it was not relied on by Nicole.[32] I disagree. The court’s authority under s. 106 to stay the execution of a judgment was before the court at trial. Although the trial judge expressly relied on the FLA provisions when granting the stay, he adverted to the authority under s. 106 of the CJA when referring to the Buttarazzi case, stating at para. 175:
[Buttarazzi] confirmed that it is important that spouses are well and truly advised that an execution creditor who is not at arm’s length and who takes with notice of a competing spouse’s claim does so subject to the court’s discretion and the court’s discretion can be exercised by an order setting aside the offending judgment or by a stay of execution per section 106 of the Courts of Justice Act. In the result, the court stayed execution of the judgment.
[33] In any event, it is appropriate to determine whether the trial judge’s order, if not properly made under the FLA, was nevertheless a proper exercise of discretion under s. 106 of the CJA: see CJA, s. 134(1)(a); L.M. v. Peel Children’s Aid Society, 2019 ONCA 841, at para. 54; and Ontario (Attorney General) v. 855 Darby Road, Welland (In Rem), 2019 ONCA 31, 431 D.L.R. (4th) 243, at para. 30.

[34] A stay of execution of a judgment may be granted in rare circumstances where the conduct of the judgment creditor is oppressive or vexatious or an abuse of process of the Court, and where the stay would not cause an injustice to the plaintiff: 1247902 Ontario Inc., at paras. 8, 10, citing Gruner v. McCormack (2000), 45 C.P.C. (4th) 273 (Ont. S.C.), at para. 30, per Epstein J. This test for the stay of proceedings was cited with approval by this court in Yaiguaje v. Chevron Corporation, 2013 ONCA 758, 370 D.L.R. (4th) 132, at paras. 54-55, aff’d 2015 SCC 42, [2015] 3 S.C.R. 69, a case involving the stay of an action for the enforcement of a foreign judgment.


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