2017 NLCA 4, 2017 NLCA 4

John Churchill (applicant/appellant) v. Unifund AssuranceCompany (respondent) (16/29) Indexed As: Churchill v. Unifund Assurance Company 2017 NLCA 4 1 C.A.N.L.R. 414 Court of Appeal of Newfoundland and Labrador Hoegg J.A. January 26, 2017

Summary: Mr. Churchill was the respondent in a successful appeal by Unifund, which compelled Mr. Churchill to answer certain interrogatoriesand to produce copies of any reports resulting from the specified medical examinations. Mr. Churchill sought a stay of that order pendingthe outcome of his application for leave to appeal to the Supreme Court of Canada, or if leave is granted, the outcome of his appeal. Held: Application allowed. Hoegg J.A.:

Section 65.1 of the Supreme Court Act, RSC 1985, c. S-26 permits a Judge of the Court of Appeal to stay an order of theCourt pending a leave application to the Supreme Court of Canada. The test for granting a stay is well established. It is met in thecircumstances of this case. There is a serious issue to be tried, which is whether the Rules of the Supreme Court, 1986, SNL 1986, c. 42,Schedule D have the legislative authority to override the common law respecting litigation privilege and the operation of the impliedundertaking rule. If required to comply with the Court’s order, Mr.

Churchill would suffer irreparable harm. The balance of conveniencefavoured him. The application was therefore allowed. Cases cited: RJR McDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311 Counsel: E. Mark Rogers, for the applicant/appellant; Megan C. Taylor, for the respondent. This application was heard on January 24, 2017 before Hoegg J.A.

The following Memorandum of Disposition was filed on January 26, 2017 by Hoegg J.A. ______________________________________________________________ Hoegg J.A.: [1] By order of this Court dated January 17, 2017, John Churchill is required to list documents and answer Interrogatories pertaining tothe within litigation and to produce any medical reports referenced in the Interrogatories. Mr. Churchill seeks a stay of that Orderpending the outcome of his application for leave to appeal to the Supreme Court of Canada, or if leave is granted, the outcome of hisappeal. Unifund does not strongly oppose Mr.

Churchill’s application.

[2]

Section 65.1 of the Supreme Court Act, R.S.C. 1985, c. S-26 permits a Judge of the Court of Appeal to stay an order of the Courtpending a leave application to the Supreme Court of Canada. The well-established test for staying a court order is set out in RJRMcDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311. The following considerations pertain: (

i) Is there a serious issue to be tried? A serious issue in this context means an issue that is not frivolous or vexatious. (ii) Would the litigant seeking a stay be irreparably harmed if the stay is not granted? and (iii) The balance of convenience as between the litigants. [3] The Applicant identifies the main issue on the application for leave to appeal as whether the Rules of the Supreme Court, 1986,S.N.L. 1986, c. 42,

Schedule D have the legislative authority to override the common law respecting litigation privilege and theoperation of the implied undertaking rule. This issue is neither frivolous nor vexatious, and is therefore a serious one to be tried. [4] I am of the view that Mr. Churchill will suffer irreparable harm if he must comply with the terms of this Court’s order pendingappeal. Once information is disclosed, it cannot be retracted; compliance with the Order would render his appeal nugatory. Unifundagrees. Moreover, Mr.

Churchill’s case at the trial from which this appeal arises may be irreparably damaged by the disclosure of theinformation. [5] The balance of convenience in this application clearly favors Mr. Churchill. The harm to Unifund by granting the stay is delay andthe associated cost of handling an open file, which inconvenience is really the cost of doing business for Unifund, and may be able to beremedied through a costs order should Unifund’s position ultimately prevail. By contrast, if Mr.

Churchill complies with this Court’sorder and his appeal to the Supreme Court of Canada is successful, the harm to him cannot be undone. [6] Accordingly, a stay is granted. I make no order as to costs. Application allowed.