R. v. Canadian Broadcasting Corp., 2021 NLCA 9

Donald Squires (applicant/appellant) v. Shirley Squires (respondent) (21/04) Indexed As: Squires v. Squires 2021 NLCA 9 6 C.A.N.L.R. 391 Court of Appeal of Newfoundland and Labrador Goodridge J.A. January 26, 2021

Summary: Mr. Squires applied for a stay of enforcement of an order pending disposition of his appeal. The order under appeal directed that Mr.Squires vacate matrimonial property and that the property be sold for not less than 90% of its appraised value. The order directed that theproperty be sold “as is”, without subdivision of the two dwellings on the property. Mr.

Squires’ notice of appeal stated that theapplications judge erred in directing the sale of the property without subdivision, since the appraisal of the property was based on a bestvalue scenario with the subdivision of the property as two separate improved parcels. Held: The application was granted. Goodridge J.A.: The first step in the test for a stay requires a preliminary investigation of the merits of the appeal to determine whetherthe appeal is frivolous or vexatious. That test was met (paragraphs 11-14). The second step is whether Mr.

Squires would suffer irreparable harm due to an inability to recover the intangible value of property thathad been passed down in his family for generations. Secondary factors supporting the possibility of irreparable harm included the riskthat Mr. Squires would have nowhere else to live, the loss of storage space for his landscaping business, and the loss of vegetables grownon the property (paragraphs 15-19). The third step, the balance of convenience weighed in favour of granting a stay. The brief delay occasioned by a stay would not impactthe market value of the property (paragraphs 20-24).

The application for a stay of enforcement of the order under appeal was granted. Filing timelines were provided for the parties to ensurethe matter proceeded expeditiously. Cases cited: RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311 R. v. Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 S.C.R. 196 Stoodley v. Stoodley, 2020 NLCA 10 Weir's Construction Limited v. Warford Estate, 2016 NLCA 65, 1 C.A.N.L.R. 282 Rules considered: Court of Appeal Rules, NLR 38/16, rule 42

Counsel: Janet A. Tucker, for the applicant/appellant; Ernest L. Gittens, for the respondent. The application was heard and decision rendered orally on January 26, 2021.

The following memorandum of disposition was filed on February 1, 2021 by Goodridge J.A. ______________________________________________________________ MEMORANDUM OF DISPOSITION Goodridge J.A.: [1] This is an application by Donald Gilbert Squires, pursuant to rule 42 of the Court of Appeal Rules, NLR 38/16, for a stay ofenforcement of an order, pending the disposition of his appeal. [2] The order under appeal, granted December 17, 2020, directed that Mr. Squires vacate property at 814-820 St. Thomas Line,Portugal Cove-St.

Phillips by February 1, 2021, that he remove all his personal effects, and that the property be sold for not less than90% of the appraised value. The property is a large unencumbered parcel of land with two residential dwellings. Mr. Squires occupiesthe dwelling at 814 and pays all expenses relating to its use and occupancy. Shirley Squires rents the dwelling at 820 to third parties; sheretains all of the rental income and pays all expenses relating to its use and occupancy. [3] At the hearing, the application for a stay pending appeal was granted. The following are the reasons for that decision.

BACKGROUND [4] The parties were married for 23 years and separated on September 28, 2010. The only unresolved issue, arising from theseparation, relates to the division of matrimonial assets. [5] Both parties agree that 814-820 St. Thomas Line is a matrimonial asset, and both agree that the property is part of the package ofmatrimonial assets that are subject to an equal division.

There are other matrimonial assets, including pensions and other property, and itis possible that adjustments to the equal sharing of individual assets will be necessary to achieve equal division of all assets. [6] To force division of this particular asset, Ms. Squires issued an interim application on August 12, 2020, seeking a court order foran appraisal of 814-820 St. Thomas Line, vacant possession, and sale.

When the matter was called for a status hearing on October 30,2020 the parties consented to a court order for an appraisal of the property, but based on best value of the property as two separateparcels – 814 and 820 – even though subdivision approval had not been sought. The appraiser proceeded on the assumption thatsubdivision approval would be granted, and he generated two appraisals, one for 814 and one for 820. The two appraisals gave similarvalues, with the difference equal to the cost of drilling a well for 820. The current water supply arrangement involves a shared well,situate at 814.

The shared well reduces the value of 820. A second well situate at 820 would result in the two parcels having equalvalue. [7] At the hearing of the interim application, on December 17, 2020, Ms. Squires sought an order directing the sale of the property“as is”, without subdivision. She argued that the application process for municipal approval to subdivide, the cost of the land surveys,and the costs for drilling of a second well to service 820, should be the responsibility of the ultimate purchaser. [8] Mr.

Squires argued that the appraisals were done based on two separate parcels, and the combined value of the appraisals is nota reliable indicator of the property value “as is”. Counsel referred to correspondence from the local municipality indicating that therewere no issues preventing a subdivision of the property. Mr. Squires asked the Court to order the property be subdivided and each partytake ownership of a parcel. Mr. Squires sought sole ownership of 820 and agreed that he would cover the cost for drilling of a well. Ms.Squires could take sole ownership of 814. In Mr.

Squires’ submission, this would be a fair division based on the appraisals, and wouldallow Ms. Squires to sell her parcel if she preferred to have the cash. [9] As noted above, the applications judge preferred Ms. Squires’ argument and directed the sale of the property “as is”. NOTICE OF APPEAL [10] Mr. Squires’ notice of appeal says that the applications judge erred in directing the sale “as is” at 90% appraised value, despitethe fact that the appraisal was based on a best value scenario with subdivision of the property as two separate improved parcels.

ANALYSIS [11] An application for a stay of enforcement of an order under appeal can be considered by the Court of Appeal under rule 42 ofthe Court of Appeal Rules, NLR 38/16. The three part test for a stay pending appeal was set out by the Supreme Court of Canada inRJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311 at 334:

First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. Preliminary assessment to ensure serious question to be tried [ 12 ] Ms. Squires’ counsel argued that this first prong of the RJR-MacDonald Inc. test has been modified by R. v.

Canadian Broadcasting Corp . , 2018 SCC 5 , [2018] 1 S.C.R. 196 , and the modification now requires Mr. Squires to show a strong prima facie case for success on appeal. I disagree. The Canadian Broadcasting Corp . decision modified the first prong of the test only for applicants seeking mandatory interlocutory injunctions. The modified test does not apply to applicants seeking a stay pending appeal. [ 13 ] At paragraph 3 of Stoodley v. Stoodley , 2020 NLCA 10 , Welsh J.A. reaffirmed that the first prong of the RJR-MacDonald Inc. test is whether there is a serious issue to be argued on appeal.

As discussed in Weir's Construction Limited v. Warford Estate , 2016 NLCA 65 , 1 C.A.N.L.R. 282 , this test 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. [ 14 ] As applied to this case, under the first prong of the test, I was satisfied from a preliminary review that the appeal would not be characterized as frivolous or vexatious. As a practical matter, the property has limited marketability “as is” due to the shared well arrangement and absence of subdivision approval.

In addition, the appraisals generated following the October 30, 2020 consent order, are of no assistance in assessing the value “as is”, or in assessing compliance with the court order that contemplates “90% of the full appraised value”. The appraisals were based on the assumption that the property would be subdivided, and are not reliable in assessing the value of the property “as is”. Would Mr.

Squires suffer irreparable harm if the application were refused? [ 15 ] In RJR-MacDonald Inc. , Sopinka and Cory JJ., for the Court, stated at paragraphs 64 and 84 that ‘irreparable harm’ is harm which either cannot be quantified in monetary terms or cannot be cured, and that “irreparable” refers to the nature of the harm suffered rather than its magnitude. [ 16 ] Mr. Squires said that the irreparable harm here arises from several factors, but primarily from the loss of his heritage. The dwelling at 820 is the original family homestead constructed as a farmhouse by Mr. Squires’ ancestors in 1850.

It has remained in his family, passing down through the generations, and he had hoped to pass it on to his children. If the property is sold “as is”, then it is forever lost. Money cannot cure the loss. [ 17 ] The secondary factors that Mr.

Squire’s raised, supporting the real possibility of irreparable harm, included: • He has “nowhere [else] to live in the middle of winter in the middle of a pandemic”; • His livelihood is in landscaping, and he has large landscaping equipment stored at 820, with nowhere else to store it; • His farmed vegetables (“a winter’s worth of vegetables”) are stored at 820, and these will be lost if he is forced to vacate mid-winter. [ 18 ] Although not stated in Mr. Squires’ affidavit, it was implicit from paragraph 5 of Ms. Squires’ October 29, 2020 affidavit, that Mr.

Squires lacks the financial capacity to purchase the property on his own. [ 19 ] In the circumstances, I was satisfied that the irreparable harm requirement of the test had been met, mainly due to Mr. Squires’ inability to recover the intangible value of the family homestead if the property is sold “as is”.

What is the balance of inconvenience? [ 20 ] The Supreme Court of Canada in RJR-MacDonald , at 342, described the “balance of inconvenience” between the parties as one engaging “determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits”. [ 21 ] Ms. Squires’ concern about the potential for harm relates to possible decline in the market value of the property.

In her application she expressed “grave concerns about the condition of the property”, and noted that “further delay with respect to the resolution of this matter would be highly prejudicial to me”. [ 22 ] While I appreciated her concerns, I was of the view that the relatively brief delay occasioned by this stay, will not significantly impact the market value of the property, and could actually increase the market value (if the delay time is used to advance the subdivision application). [ 23 ] In these circumstances, in my view, the balance of inconvenience weighs in favour of granting a stay.

DISPOSITION [ 24 ] For these reasons, having applied the test for a stay set out in RJR-MacDonald , I concluded that a stay should be ordered pursuant to rule 42(2) of the Court of Appeal Rules . [ 25 ] To ensure that the matter proceeds expeditiously, I ordered that the appeal be heard on May 10, 2021. The appellant’s factum shall be filed on or before March 16, 2021; the respondent’s factum shall be filed on or before April 16, 2021. [ 26 ] The costs of this application shall be costs in the cause.

Application granted.