Boyd v Caisley, 2016 ABQB 256

Court of Queen’s Bench of Alberta Citation: Boyd v Caisley, 2016 ABQB 256 Date: 20160505 Docket: FL03 32679 Registry: Edmonton Between: John Alfred Boyd Applicant - and - Shereen Margaret Caisley and Shereen M. Caisley Professional Corporation Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice J.J. Gill _______________________________________________________ Overview [ 1 ] This is an application by Mr. Boyd (“the Applicant”) for a stay pending appeal of an order made at the Case Management Meeting on April 29 th, , 2016.

The order directed that an amount of $150,000.00 presently held in trust should be remitted to the Canadian Revenue Agency (“CRA”) on behalf of Dr. Caisley’s Professional Corporation (“the PC”). Counsel for the Parties provided letters dated May 1 st , 2 nd and 4 th setting out their positions on the application. Law

[2] The test for a stay pending appeal is well established:

(1) That there is a serious question to be considered;

(2) That irreparable harm will result if the stay is not granted between now and the date of the hearing of the appeal;

(3) That the balance of convenience favours the applicant. RJR-MacDonald Inc. v Canada (Attorney General), (SCC), [1994] 1 SCR 311 Serious question to be considered: [3] The Applicant submits that the Court had no evidence before it as to the amounts owing to CRA or any claim by CRA. Thequestion of whether or not there was any evidence before the Court raises a serious question to be considered. [4] I am satisfied that there was evidence that a significant amount (over $250,000) is owed to CRA for payroll deductions bythe PC and that the Respondents are making payments to CRA.

However whether there is a serious question to be considered on appealis a low threshold (Modry v Alberta Health Services, 2015 ABCA 328 at paragraph 7) and I am prepared to accept that the Applicant hasmet that threshold.

Irreparable harm: [5] A description of what is irreparable harm was set out by Bielby J. at paragraph 9 of Modry v Alberta Health Services supra: 9 : The definition of irreparable harm, the second prerequisite for the granting of a stay, is whether the refusal to grant relief could soadversely affect the applicants’ own interests that the harm could not be remedied if the eventual decision on the merits does not accordwith the result of the interlocutory injunction. Irreparable harm refers to the nature of the harm, not its magnitude.

It is “harm whicheither cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from theother”: RJR-MacDonald, supra at 341. [6] The Applicant submits that he would suffer irreparable harm because once the funds are gone from trust, they will not berecovered regardless of the outcome. In addition, he notes that a portion of the funds flowed from a sale of land and he is presumptivelyentitled to half of those funds. [7] I note that after payment of the $150,000.00 to the CRA there will still be approximately $575,000 held in trust fordistribution.

In addition, the affidavit evidence establishes that there are a number of other significant assets held by the parties whichhave to be allocated and distributed.

I note also that in light of the wording of a property division agreement entered into between theparties, there is some question as to the validity and/or extent of the Applicants’ claim over the trust funds and the other assets (includingthe ones he has in his possession). [8] I am satisfied that there are more than sufficient assets available to remedy any potential harm arising to the Applicant fromthis payment of $150,000.00 to the CRA. [9] The Applicant has not met the burden of establishing irreparable harm.

The Balance of Convenience [10] The Applicant submits that the balance of convenience weighs heavily in his favour as there has been a delay of 8 months dueto the Respondent avoiding or refusing to attend on Questioning. [11] The Respondents submit if a stay is granted and the funds are not paid to the CRA, they face a risk of serious financial harmif CRA takes enforcement measures.

This is credible when one considers the extent of the indebtedness to CRA, the Respondents’ongoing and unresolved dealings with the CRA and the nature of the Respondents’ business. [12] The Applicant has not established that he would suffer any inconvenience or face any harm. [13] I find that the balance of convenience favours the Respondents. Decision: [14] The Applicant has failed to meet the test for a stay. His application is dismissed. [15] The Respondents seek costs of $2,000.00. This was a contested application.

Taking into account that written briefs andappearances were not required, I award costs of $750.00 to the Respondents. Heard on the 04th day of May, 2016. Dated at the City of Edmonton, Alberta this 5th day of May, 2016.

J.J. Gill J.C.Q.B.A. James Scott for the Plaintiff, John Alfred Boyd Glenn Taylor for the Defendant, Shereen Margaret Caisley and Shereen M. Caisley, Professional Corporation