2018 NLCA 50, 2018 NLCA 50

Prashant Jadhav (respondent to the application and appellant/respondent by cross-appeal) v. David Kielly (applicant and respondent/appellant by cross-appeal) (18/80) Indexed As: Jadhav v. Kielly 2018 NLCA 50 3 C.A.N.L.R. 235 Court of Appeal of Newfoundland and Labrador Welsh J.A. August 17, 2018

Summary: The respondent and appellant by cross-appeal, Mr. Kielly, applied for a stay pending appeal and cross-appeal of the order of the Court below ordering damages to be paid in a negligence action. Held: Application allowed, stay of enforcement ordered. Welsh J.A.: The test for granting a stay is met. The appellant and respondent by cross-appeal, Mr. Jadhav, concedes there would be irreparable harm to the respondent, Mr. Kielly, should the stay of enforcement of the order not be granted because any money paid to Mr. Jadhav could not be recovered should the cross-appeal succeed.

The threshold to be met to establish that there is a serious issue to be argued on appeal, that is, that the appeal is not frivolous or vexatious, is low. There is a serious issue to be argued on the appeal in this case. The balance of inconvenience weighs in favour of Mr. Kielly as a significant amount of money paid by him could not be recovered should the cross-appeal succeed. For this reason, a partial stay is also not appropriate. Cases cited: Weir’s Construction Limited v. Warford Estate , 2016 NLCA 65 Counsel: Peter D. Shea, for the applicant; Philip J. Buckingham, for the respondent to the application.

This application was heard on August 16, 2018 before Welsh J.A. The following judgment was delivered on August 17, 2018 by Welsh J.A. ______________________________________________________________ Welsh J.A.: [ 1 ] This is an application by David Kielly to stay the enforcement of an order for the payment of damages pending disposition of an appeal and cross-appeal ( rule 42 of the Court of Appeal Rules , NLR 38/16). On October 27, 2013, Prashant Jadhav was injured when he was struck by a motor vehicle driven by Mr. Kielly. The trial judge assessed liability for the accident at 90%

to Mr. Kielly and 10% to Mr. Jadhav. The judge awarded damages of $338,097.19 to Mr. Jadhav. Mr. Jadhav appeals against portions of the award of damages. Mr. Kielly cross-appeals against the finding of liability. [ 2 ] At the time of the accident, Mr. Jadhav had just begun employment as a temporary foreign worker from India, as a cook at a Burger King operation. Due to his injuries he was unable to return to his employment. [ 3 ] The three-step test for granting a stay of enforcement of an order pending disposition of an appeal is set out in Weir’s Construction Limited v.

Warford Estate , 2016 NLCA 65 : [16] The first prong of the test is whether there is a serious issue to be argued on appeal. This requires a preliminary, but not a detailed or extensive, investigation of the merits of the appeal to ascertain whether the appeal is frivolous or vexatious. … [17] The second prong of the test is whether the applicant for the stay will suffer irreparable harm if the stay is not granted. It is the nature of the harm, rather than its magnitude, that must be considered. … [18] The third prong of the test is an assessment of the balance of inconvenience. … [ 4 ] In this case, Mr.

Jadhav concedes the second prong of the test. He accepts that, because he is impecunious and does not have the legal status in Canada to obtain work, the risk that any money paid to him could not be recovered is sufficient justification on which to conclude that Mr. Kielly would suffer irreparable harm should the cross-appeal succeed and a stay of enforcement of the order not be granted. [ 5 ] Regarding the first prong of the test, Mr. Jadhav submits that the issues raised in the notice of appeal are, in fact, frivolous. He points to the evidentiary and factual nature of the issues for which, he submits, Mr.

Kielly would be required to demonstrate that palpable and overriding errors were made by the trial judge. [ 6 ] On the other hand, Mr. Kielly submits that the trial judge erred in his application of the law regarding the onus on Mr. Jadhav, as the plaintiff, to establish negligence by Mr. Kielly. Central to his submission is the question of proof necessary to establish the element of causation. In the result, he submits, the appeal cannot be said to be frivolous or vexatious because whether Mr. Jadhav met the burden of proof to establish negligence by Mr.

Kielly at law is a live issue before this Court on appeal. [ 7 ] The threshold to be met by Mr. Kielly to establish that there is a serious issue to be argued on appeal, that is, that the appeal is not frivolous or vexatious, is low. Further, it is not appropriate for purposes of this application to conduct more than a preliminary assessment of the merits of the appeal. [ 8 ] Having considered the written and oral submissions of counsel, I am not satisfied that the appeal could be characterized as frivolous or vexatious.

Without commenting on the likely success of the appeal, I conclude that there is a serious issue to be argued on the appeal, in the sense contemplated by the first prong of the test. [ 9 ] The question of whether enforcement of the order should be stayed pending determination of the appeal falls to be determined under the third prong of the test, the balance of inconvenience. [ 10 ] Mr. Kielly submits that the foundation for the request for a stay of enforcement of the order is that, if monies were paid to Mr. Jadhav and the cross-appeal were to succeed, the monies would not be recoverable. Mr.

Jadhav does not seriously challenge that proposition, but submits that there is little likelihood that the cross-appeal will succeed and that his financial circumstances are such that the balance of inconvenience weighs in his favour. He submits that he was successful at trial and that he should benefit from the decision in his favour. [ 11 ] I am satisfied that the balance of inconvenience weighs in favour of Mr. Kielly when applied to the payment of the damages ordered by the trial judge, being $338,097.19. Mr. Jadhav admits that he is impecunious.

While he told the trial judge that he would like to stay in Canada, the judge concluded ( 2018 NLSC 97 ): [70] … Practically speaking, however, his ability to remain in this jurisdiction is virtually nil. He has neither the academic qualifications nor the job skills that would allow him to successfully obtain permanent resident status in this country. [71] [Mr. Jadhav’s] counsel strongly urged that any damage award I make should be based upon the assumption that [he] will remain in Canada.

Indeed, all of the assumptions utilized by the actuary in calculating the amounts required to fund potential awards under various heads of damage are based upon the notion that [Mr. Jadhav] will remain in Canada. The conundrum for me is that [he] will undoubtedly not remain in Canada. … [ 12 ] Mr. Jadhav has conceded, under the second prong of the test, the risk that money paid to him could not be recovered should the cross-appeal succeed. This is a significant amount of money. The accident occurred in October 2013, almost five years ago.

A further reasonably short delay to enable disposition of the cross-appeal would, in the circumstances, weigh in favour of granting the application for a stay of enforcement of the order. [ 13 ] In the alternative, Mr. Jadhav submits that a partial stay, permitting the payment of 50% of the damages and costs awards, would shift the balance of inconvenience to favour Mr. Jadhav.

Payment of 50% of the amounts awarded is still a large amount of money where there is a significant risk the money could not be recovered if the cross-appeal should succeed. [ 14 ] This brings me to a consideration of a partial stay involving the payment of a smaller amount of money to Mr. Jadhav. My concern remains the risk that the money would not be recoverable if the cross-appeal succeeded.

[ 15 ] Accordingly, I sought counsels’ submissions regarding the appropriateness of taking the most unusual step of first hearing the cross-appeal alone. The issues are reasonably narrow and most of the necessary transcript has been prepared.

Counsel advised that, should an order be made to separate the hearing of the cross-appeal from the appeal, they would take the steps necessary to have the cross-appeal heard as soon as possible, with the goal of proceeding with a hearing date in October or November. [ 16 ] To separate the cross-appeal as to liability in negligence from the appeal as to the award of damages would be rare. While the separation of liability and damages is not unusual at trial, on appeal, generally, the most efficient use of judicial resources is to hear all matters at the same time.

However, where justice and convenience warrant, I am satisfied that an appropriate procedure to accommodate the particular circumstances must be available. [ 17 ] Considering the delay of almost five years from the time of the accident to a decision at trial, a further moderate delay occasioned by the cross-appeal would not be unreasonable particularly when balanced against the significant risk that any money paid out would likely not be recoverable. [ 18 ] In all the circumstances, I am satisfied that a stay of enforcement of the order appealed from pending a decision on the cross- appeal is warranted given the undertaking by counsel for both Mr.

Jadhav and Mr. Kielly to proceed without delay with hearing of the cross-appeal. [ 19 ] Counsel for Mr. Kielly advised that some transcript in addition to what has already been prepared will be required for purposes of the cross-appeal. Pending a costs award ordered upon determination of the cross-appeal, all costs associated with preparation of the additional portions of the transcript shall be borne by Mr. Kielly. Costs of this application shall be costs in the cause. Application allowed.