WAYNE JOHNSON APPLICANT/ FIRST APPELLANT AND: STEPHEN JOHNSON SECOND APPELLANT AND: SHAWN JOHNSON FIRST RESPONDENT AND: ANDY JOHNSON SECOND RESPONDENT, 2023 NLCA 16

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation : Johnson v. Johnson , 2023 NLCA 1 6 Date : May 23, 2023 Docket Number : 202301H0024 BETWEEN: WAYNE JOHNSON APPLICANT/ FIRST APPELLANT AND: STEPHEN JOHNSON SECOND APPELLANT AND: SHAWN JOHNSON FIRST RESPONDENT AND: ANDY JOHNSON SECOND RESPONDENT Coram: F.J. Knickle J.A. Court Appealed From: Supreme Court of Newfoundland and Labrador, General Division 202001G2437 ( 2023 NLSC 54 ) Application Heard: May 23, 2023

Judgment Rendered (Orally): May 23, 2023 Memorandum of Disposition Filed: May 30, 2023 Counsel for the Applicant/Appellants: Daniel W. Bennett Counsel for the Respondents: Adam N. Foote Authorities Cited: CASES CITED: RJR — MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311; Weir’sConstruction 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. MEMORANDUM OF DISPOSITION F.J.

Knickle J.A.: [1] Wayne Johnson, the applicant/first appellant, has appealed the decision from the Supreme Court, General Division allowingthe respondents’ action for vacant possession of premises at 101 Hillview Drive West, St. John’s, Newfoundland and Labrador (Johnsonv. Johnson, 2023 NLSC 54). Until ordered by the trial judge to vacate, the applicant resided at the premises. He now seeks a stay ofenforcement of the trial judge’s order for vacant possession under this Court’s rule 42 of the Court of Appeal Rules, NLR 38/16, pendingresolution of the appeal. The respondents oppose the application. Only Mr.

Johnson has made application for a stay. [2] The three-part test for a stay of enforcement of an order pending appeal is well established and as stated by the Supreme Courtof Canada’s decision in RJR — MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311. The testhas been repeatedly applied by this Court (see e.g. Weir’s Construction Limited v. Warford Estate, 2016 NLCA 65, 1 C.A.N.L.R. 282). [3] The first question is whether the applicant has established that there is a serious issue to be argued on appeal.

This questionrequires a preliminary but not a detailed or extensive investigation of the merits of the appeal. [4] Secondly, the applicant must establish that he would suffer irreparable harm if no stay is granted. In that regard, the nature ofthe harm is considered not the magnitude of the harm. [5] Thirdly, the applicant must establish that the balance of inconvenience as between the parties favours imposing a stay of theorder.

That is, will the applicant be more inconvenienced because the stay is not granted, or would the respondents be moreinconvenienced if the stay is granted? [6] Applying this three-part test, the applicant has failed to establish that the order should be stayed in its entirety pending appeal. [7] On the question of whether or not there is a serious issue to be tried, the majority of the arguments raised by the applicant inthe notice of appeal relate to either the trial judge’s findings of fact or the trial judge’s conclusions respecting the assessments ofcredibility of the witnesses.

In the absence of palpable and overriding error, facts as found by the trial judge are owed deference by acourt of appeal. Similarly, the assessment of credibility of a witness is the purview of the trial judge. In the absence of error, anappellate court will show deference to such assessments. The applicant has pointed to no error by the trial judge or a misapprehension byhim of the evidence.

The trial judge’s findings of fact on their face appear to be supported by the evidence. [8] While I am not satisfied that there is a serious issue to be tried, I do not agree with the respondents that the appeal has beenbrought in a vexatious or frivolous manner. A losing party at the trial level is entitled to bring an appeal if they believe there have beenerrors. It may be on a fulsome review of the transcript that the applicant can establish that the trial judge has erred as he alleges in hisnotice of appeal.

At this stage however, the applicant has not met the necessary threshold that there is a serious issue to be tried. [9] The applicant has also not established that he will suffer irreparable harm if no stay is imposed. While the applicant will haveto move from the premises and find a new location to live if the order remains in force pending appeal, this is not irreparable harm forwhich there will be no possibility of redress. There was no evidence from the applicant that being required to move from the premises asordered by the trial judge will cause him irreparable harm.

The evidence at trial, and on the application, was that the premises are where

the applicant has been residing without permission from the respondents as found by the trial judge.

As argued by the respondents, and conceded by the applicant at the hearing of this application, if the applicant is ultimately successful in establishing that he possesses an interest in the property, while it may be that the property is no longer available, he can still seek redress by way of monetary damages. [ 10 ] The applicant’s main complaint is not so much that he will suffer an irreparable harm if the stay is not imposed, but that the order did not allow him adequate time to move from the premises. [ 11 ] On the balance of inconvenience, I accept that the applicant will be inconvenienced and likely incur costs by having to move from the premises.

I also accept that the respondents will be inconvenienced if the stay is imposed. As found by the trial judge, the respondents have been seeking to have the applicant removed from the property since 2015 and have not been able to enjoy the benefits as property owners, but still incur the risks of loss associated with the property. [ 12 ] The complaint of the applicant that the order does not allow an adequate period of time for him to move can be addressed by imposing a partial stay of the order to allow the applicant sufficient time to move.

The respondents agreed at the hearing of the application to a partial stay of the order to allow the applicant adequate time to move from the premises. [ 13 ] On the balance of inconvenience, while the respondents will be more inconvenienced if the stay is granted in its entirety, I am satisfied that a partial stay is warranted. [ 14 ] In conclusion, to the extent that the applicant seeks to stay the order of the trial judge in its entirety, the application is dismissed. However, a temporary stay of the order will be imposed, to expire at noon, on June 30, 2023.

This temporary stay of the order will allow the applicant time to move from the premises at 101 Hillview Drive West. The applicant is to have completely vacated the premises with his belongings by noon, June 30th, 2023. _____________________________ F. J. Knickle J.A .