Bhasin (Bhasin & Associates) v. Hrynew, 2012 ABQB 426

Court of Queen ’ s Bench of Alberta Citation: Bhasin (Bhasin & Associates) v. Hrynew, 2012 ABQB 426 Date: 20120629 Docket: 0203 02295 Registry: Edmonton Between: Harish Bhasin Carrying on Business as Bhasin & Associates Plaintiff - and - Larry Hrynew, Canadian American Financial Corp. (Canada) Limited, a Subsidiary of Allianz Life Insurance Company of North America, Allianz Education Funds Inc. Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice A.B.

Moen _______________________________________________________ [ 1 ] The Defendant seeks a stay of the judgment and costs award pending an appeal in this action. [ 2 ] The grounds for this application are: 1. the appeal is arguable; 2. the Defendants may suffer irreparable harm if they pay the amount of the judgment, if the judgment is reversed on appeal, and plaintiff cannot pay the full amount; 3. the Defendants will post security in the form of an irrevocable Letter of Credit, and therefore the balance of convenience favours

3. the Defendants will post security in the form of an irrevocable Letter of Credit, and therefore the balance of convenience favours a stay of enforcement pending appeal in the circumstances. 1. The appeal is arguable [ 3 ] The Defendants submit that the arguable appeal is set out in the grounds of appeal, that is, that the trial judge erred in finding: 1. There was an implied term of good faith in the contract with plaintiff, which CAFC breached; 2. Hrynew induced the breach of contract by CAFC; and 3.

The Defendants are liable for conspiracy by unlawful means, namely breach of the implied term of good faith in the contract and inducement of breach of contract. [ 4 ] The Defendants are confident in their grounds of appeal. [ 5 ] I do not need to find that there is an arguable case, because I am going to allow the application in part. 2. Irreparable harm [ 6 ] It was the contention of the Defendants that Mr. Bhasin could not repay the judgment amount. There was no evidence on this point in the application. However, there was evidence in the trial to suggest that Mr.

Bhasin had to downsize his organization in order to pay for his legal fees. Therefore, I am satisfied that he may find it difficult to repay the whole of the damages award if it is reversed by the Court of Appeal. 3. Balance of convenience [ 7 ] The Defendants have offered to put in place an irrevocable letter of credit. They have provided me with the form of that letter of credit. They argue that putting this letter of credit in place shifts the balance of convenience to them and supports their application for a stay. [ 8 ] However, I note that Mr.

Bhasin is now retired having achieved the age of 65 prior to the trial. He and his wife are getting on in life. To deprive him of all of the proceeds of the judgment pending an appeal would be patently unfair. Therefore, even though there is an irrevocable letter of credit, the balance of convenience favours Mr. Bhasin. Conclusion: [ 9 ] I find that the Defendants are successful on one point, that of irreparable harm to some extent. They have not achieved to my satisfaction a complete answer to the balance of convenience.

Further, I believe I was correct in my judgment and therefore I am not convinced that they have an arguable appeal. However, given my partial finding on irreparable harm, I am granting a partial stay on the following conditions: 1. The Defendants must provide an irrevocable letter of credit as attached to the affidavit of Onofrio Loduca with corrections to para. 3 to ensure that a partial award of damages by the Court of Appeal will also be covered. This irrevocable letter of credit must be provided to the Plaintiff immediately upon filing this order.

2. The Defendants must pay to the Plaintiff an amount of $150,000.00 towards the judgment, including the costs judgment, forthwith upon filing of this order. 3. There will be strict time lines within which the Defendants must prosecute their appeal: a. Upon filing of the Judgment Roll, the Defendants must file their Notice of Appeal within 20 days; b. The appeal digest must be filed on or before September 28, 2012. [ 10 ] If the Defendants failed to meet any of these conditions, the Stay will be lifted forthwith. Heard on the 25 th day of June, 2012.

Dated at the City of Edmonton, Alberta this 29 th day of June, 2012. A.B. Moen J.C.Q.B.A. Appearances: Pierre Asselin for the Plaintiff James T. Nielsen for the Defendants