2022 NLCA 3, 2022 NLCA 3

Terry Ryan (applicant/appellant) v. Catherine Ryan(respondent) (21/64) Indexed as: Ryan v. Ryan 2022 NLCA 3 7 C.A.N.L.R. 228 Court of Appeal of Newfoundland and Labrador Goodridge J.A. January 11, 2022

Summary: Terry Ryan sought a stay of enforcement of orders concerning spousal support, division of assets, and occupancy rent pendingdetermination of his appeal. Mr. Ryan was not present at the hearing in the court below. Held: Application dismissed. Goodridge J.A.: The three-part test governing the granting of an application for a stay pending appeal was outlined in RJR–MacDonaldInc. v. Canada (Attorney General).

An applicant must establish (1) there is a serious issue to be tried on appeal, (2) the applicant willsuffer irreparable harm if the stay is not granted, and (3) the balance of inconvenience favours the granting of the stay (paragraphs 3-6). Mr. Ryan failed to meet the first two criteria of the test (paragraphs 7-11). Cases cited: Ryan v. Ryan, 2021 NLSC 119 RJR – MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311 Rees v. Royal Canadian Mounted Police, 2005 NLCA 4 Vey v. Newfoundland and Labrador Pharmacy Board, 2019 NLCA 72 Weir's Construction Ltd. v.

Warford Estate, 2016 NLCA 65, 1 C.A.N.L.R. 282 Van de Perre v. Edwards, 2001 SCC 60 King v. King, 2015 NLCA 54 Rules considered: Court of Appeal Rules, sections 42(1), 42(2), 58 Rules of the Supreme Court, 1986,

section 42.01(2) Counsel:

Terry Ryan, appearing on his own behalf; Mark J. Griffin, for the respondent. The application was heard on January 11, 2022 with decision rendered orally by Goodridge J.A. The following memorandum of disposition was filed on January 13, 2022 by Goodridge J.A. ______________________________________________________________ MEMORANDUM OF DISPOSITION Goodridge J.A.: [1] The Applicant, Terry Ryan, seeks a stay of enforcement pending the outcome of the appeal of the October 20, 2021 ordersdealing with spousal support, division of assets, and occupancy rent.

The grounds of appeal are that the trial evidence included “errorsand lies” and that the orders, based on “many errors in the information presented”, should be set aside. [2] The hearing in the court below continued over three days. Mr. Ryan had notice of the hearing but elected not to participate, andnot to file updated financial information. The sole witness was the Respondent. In her reasons for decision, the applications judgedetailed Mr. Ryan’s history of impeding the court process by failing to attend court and failing to respond to communications (2021NLSC 119): [2] …The court file details a history of Mr.

Ryan's efforts to impede the Court process, including: failing to attend court proceedings;failing to respond to communications from his legal counsel resulting in an order permitting his legal counsel to withdraw as solicitor ofrecord; failing to respond to two Demands to Disclose; failing to respond to a Demand for Answers; failing to comply with an order fordisclosure; an application to have Ms.

Ryan's legal counsel removed as solicitor of record which was dismissed; and an application toprevent legal counsel for Ocean Surfer Ltd. from giving evidence at trial which was dismissed. [3] Prior to proceeding with the trial, I reviewed the communications provided to Mr. Ryan confirming the trial date… [4] … Mr. Ryan's failure to file [updated] financial information with the court and appear at trial, has left me in the unenviableposition of having to decide significant financial issues with only partial evidence.

ANALYSIS [3] Under the Court of Appeal Rules, NLR 38/16, section 42 (1), the filing of a notice of appeal shall not operate to stayenforcement of the order under appeal. A separate application is required under section 42 (2) of the Court of Appeal Rules and theoutcome is determined by applying a three-pronged test for the granting of a stay as outlined by the Supreme Court of Canada in the caseof RJR – MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311. This Court has applied that teston numerous occasions, including for example in Rees v.

Royal Canadian Mounted Police, 2005 NLCA 4, at paras 40-42; Vey v.Newfoundland and Labrador Pharmacy Board, 2019 NLCA 72, at para. 4; and Weir's Construction Limited v. Warford Estate, 2016 NLCA 65, 1 C.A.N.L.R. 282, at paras. 17-19. [4] The first prong of the test is whether there is a serious issue to be argued on appeal.

This requires a preliminary, but not adetailed or extensive, investigation of the merits of the appeal to ascertain whether the appeal is frivolous or vexatious. [5] The second prong of the test is whether the applicant for the stay will suffer irreparable harm if the stay is not granted. [6] The third prong of the test is an assessment of the balance of inconvenience. [7] As applied to this case, the test results in dismissal of the application. [8] Under the first prong, based on my preliminary assessment from the material before me, there is no serious issue to be argued onthis appeal. [9] The sole ground of appeal is that the evidence presented included errors and lies.

Mr. Ryan is challenging the credibilityassessments and finding of fact made by the applications judge. He asks this Court to replace the decision of the applications judge with“a new decision different than that of the lower court”. Mr. Ryan makes no allegation of error of law, or mixed fact and law. Inchallenging the findings of fact, Mr. Ryan offers no specific examples where the applications judge erred or misinterpreted the evidencebefore her. Appellate courts do not reconsider the evidence and determine if an applications judge properly weighed the evidencediscussed in the reasons, Van de Perre v.

Edwards, 2001 SCC 60, at para. 35. Appellate courts are not a second chance to litigate. [10] Having found there is no serious issue to be tried it is unnecessary to review the other two prongs of the test (King v. King, 2015NLCA 54, at para. 16). However, I add that, under the second prong of the test, Mr. Ryan did not offer any evidence to support hisargument that enforcement of the order would, to use his words, “destroy me”. The application for a stay would also be denied based onthis second prong of the test.

CONCLUSION [ 11 ] For the above reasons, the application for a stay is dismissed. The Respondent is awarded costs based on column 3. Application dismissed.