Labossiere et al. v. The Estate of Date:, 2011 MBCA 38

Citation: Labossiere et al. v. The Estate of Date: 20110429 Remi Joseph Labossiere, 2011 MBCA 38 Docket: AI 11-30-07537 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) G. R. Clay JOEL LABOSSIERE, SHAWN ) for the Applicant DESROCHERS, DANIEL LABOSSIERE ) Nicole Labossiere-Clark, and GERALD GAGNON ) as Litigation Guardian for ) Melissa Annie Clark and (Applicants) Respondents ) Kayla Nikki Clark ) ) P. M. Reilly ) for the Respondent - and - ) The Estate of Remi Joseph ) Labossiere ) ) L. M.

French THE ESTATE OF REMI JOSEPH ) for Claudette Lucienne LABOSSIERE ) Grenier ) (Respondent) Respondent ) Chambers motion heard: ) April 7, 2011 ) ) Decision pronounced: ) April 29, 2011 FREEDMAN J.A. 1 Nicole Labossiere-Clark (Nicole) is the litigation guardian for Melissa Annie Clark and Kayla Nikki Clark.

Although she is not formally a party to the present proceedings, it was not disputed that she had standing to bring the present motion, which seeks a stay of an order of a judge of the Court of Queen’s Bench. 2 The following background is from the reasons for judgment of Scott C.J.M., for a panel of this court, in a related proceeding ( Labossiere-Clark et al. v. Wood et al. , 2011 MBCA 7 at paras. 1-3 ): Remi Joseph Labossiere (Remi) and his parents were murdered on November 26, 2005. The respondent Jerome Labossiere (Jerome) was charged with the three murders on May 2, 2008.

On March 17, 2009, Jerome was also charged with counselling to murder the appellant Nicole Labossiere-Clark (Nicole). The trials are pending. Remi, Nicole and Jerome are siblings. At the time of the murders, Remi and the respondent Claudette Lucienne Grenier (Claudette), Jerome’s wife, each owned an undivided half-interest in two quarter-sections of land (the land). There were substantial mortgages on the land which were paid and discharged as a result of mortgage insurance that Remi had taken out on his own life.

Pursuant to court order, one property has since been sold by the administrator of Remi’s estate, with the proceeds being held in trust. The two appellants represented by their litigation guardian, Nicole, are Remi’s nieces and, pursuant to his will, are two of the beneficiaries of Remi’s estate; Jerome is another. 3 The judgment of this court confirmed the dismissal (for failure to disclose a reasonable cause of action) by a Queen’s Bench judge of a claim by Nicole against Gavin Wood as the administrator of Remi Labossiere’s estate (the administrator), and others.

That claim sought declarations that Jerome Labossiere (Jerome) was responsible for the death of Remi Labossiere (Remi), that certainproperty was held in trust by Claudette Grenier (Claudette) for Jerome, that Jerome was disentitled to any interest in the property and thatthe property was therefore held in trust for Remi’s estate. 4 The administrator then sought directions regarding the proceeds of sale, which he was holding, of certain property that wasowned by Remi and Claudette as tenants in common. Claudette wanted her half of the proceeds released to her.

Nicole asked the judge(Greenberg J.) to direct the administrator to continue to hold the proceeds on the basis that she is seeking leave from the Supreme Courtof Canada to appeal this court’s decision. 5 Greenberg J. considered the strength of the case on the merits, and the balance of convenience. She observed that twolevels of courts in this province had found no merit to the claim filed by Nicole. She said that, to obtain leave to appeal to the SupremeCourt, Nicole would have to establish not only merit, but that the case was a matter of national importance.

No argument had been madebefore the judge as to why this type of case would be likely to receive leave. 6 She considered the balance of convenience and said that since the subject-matter of the dispute had ceased to be specificproperty and was now money, damages would obviously suffice. She said: “The real question is how long should Ms. Grenier have towait for her money on the remote chance that a court will find she is not entitled to it.” 7 Greenberg J. continued: I note that there is no evidence before me to suggest that Ms.

Grenier would not be able to satisfy any judgment against her, that is to say,to repay the money if it is released to her. In argument, her counsel stated that she currently works and owns other property in Manitoba. If that is the case, there would be a means to enforce any judgment. In this regard, as it is Ms. Labossiere-Clark that is seeking to tie up the funds, in my view the onus is on her to establish that Ms. Grenierwill be unlikely to satisfy a future judgment.

She has filed no evidence in that regard. 8 Thus, she directed that the administrator was free to release Claudette’s share of the sale proceeds to her. 9 Nicole filed a notice of appeal of that order. She then sought from Greenberg J. a stay of the order, which was refused. She then brought the present motion, again seeking a stay of the order. This is the appropriate procedure; see, e.g., Steel J.A. in YesForex Ltd. et al. v.

Wildcat Exploration Ltd. et al., 2008 MBCA 124, 231 Man.R. (2d) 154 (at para. 6): The usual and preferable practice in seeking a stay pending an appeal is to apply first to the judge who made the original order and, ifdenied, only then to seek a stay from a judge of this court in chambers. It is only if the chambers judge refuses as well that an appeal ofthat refusal should take place in front of a full panel. This practice is widely followed and should be adhered to unless there is somespecial reason to do otherwise. See Regula v.

Moose Lake Indian Band (1992), (MB CA), 78 Man.R. (2d) 144; 16W.A.C. 144 (C.A.), followed in Child and Family Services of Western Manitoba v. K.B. et al. (2006), 2006 MBCA 48 , 205Man.R. (2d) 31; 375 W.A.C. 31; 2006 MBCA 48 at para. 37, Freedman J.A. 10 The principles applicable to this court granting a stay of an order pending appeal have been discussed in a number of cases. See, e.g., Child and Family Services of Western Manitoba v.

K.B. et al., 2006 MBCA 48, 205 Man.R. (2d) 31 (at para. 26): The general principles applicable to stays require a determination of three matters: 1. is there a serious question to be argued on appeal, 2. would the applicant suffer irreparable harm if the stay is refused, and 3. on a balance of convenience, who would suffer greater harm from the granting or refusal of the stay. (See RJR-MacDonald Inc. et Imperical [sic] Tobacco Ltd. v. Canada (Procureur général), (SCC), [1994] 1 S.C.R.311; 164 N.R. 1; 60 Q.A.C. 241, and Metropolitan Stores (MTS) Ltd. v.

Manitoba Food and Commercial Workers, Local 832 andLabour Board (Man.), (SCC), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R. (2d) 241.)

11 On the present motion, it is sufficient to deal with only one of the criteria, namely, the question of irreparable harm. Thisfactor was discussed by Sopinka and Cory JJ. in RJR-MacDonald Inc. v.

Canada (Attorney General), (SCC), [1994] 1S.C.R. 311, where they explained that this part of the test raised the question (at p. 341): … [W]hether a refusal to grant relief could so adversely affect the applicants’ own interests that the harm could not be remedied if theeventual decision on the merits does not accord with the result of the interlocutory application. “Irreparable” refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetaryterms or which cannot be cured, usually because one party cannot collect damages from the other.

Examples of the former includeinstances where one party will be put out of business by the court’s decision (R.L. Crain Inc. v. Hendry (1988), (SKKB), 48 D.L.R. (4th) 228 (Sask. Q.B.)); where one party will suffer permanent market loss or irrevocable damage to its businessreputation (American Cyanamid, [[1975] A.C. 396 (H.L.)]); or where a permanent loss of natural resources will be the result when achallenged activity is not enjoined (MacMillan Bloedel Ltd. v. Mullin, (BC CA), [1985] 3 W.W.R. 577 (B.C.C.A.)).

The fact that one party may be impecunious does not automatically determine the application in favour of the other party who will notultimately be able to collect damages, although it may be a relevant consideration (Hubbard v. Pitt, [1976] Q.B. 142 (C.A.)). 12 In support of this motion, Nicole filed a motion brief on law, the reasons for judgment of Greenberg J. granting theadministrator’s application, and an affidavit of a legal assistant in the office of Nicole’s lawyer.

That affidavit provides the only evidencein support of the motion. 13 The affidavit recites some of the recent legal proceedings referred to above, refers to prospective legal proceedings relating toRemi’s estate, and states that Nicole’s lawyer informed her that Nicole has “an arguable case” on appeal from the order of Greenberg J.and also to advance to the Supreme Court on the leave application. 14 The legal assistant’s affidavit then states that Nicole’s lawyer informed her that irreparable harm will be caused to Nicole ifmoney is released to Claudette before a formal accounting is held and that there is a strong likelihood that the money will be used for thedefence of Jerome on the murder charge.

It concludes by stating that Nicole’s lawyer informed her that the balance of convenience isstrongly in favour of the estate for several reasons, including that the money is currently safely located in the administrator’s hands. 15 In oral argument, Nicole’s lawyer said that without the money being held by the administrator, her ability to recover on anyjudgment would be “limited or gone.” There is no evidence to support that argument. The only evidence touching upon it is thereference in the legal assistant’s affidavit to information provided to her about a probable use of the proceeds.

That is very far fromevidence showing irreparable harm. 16 As was the case when the original motion was argued before Greenberg J., the onus is on Nicole. Here that onus requiresher to establish irreparable harm, which essentially means that she must show that if the stay is denied, Claudette will be unlikely to beable to satisfy any future judgment.

Apart from the conclusory, hearsay statement in the affidavit about irreparable harm, which falls farshort of what would be persuasive, Nicole provided no evidence at all to support her argument on this point. 17 I am satisfied that Nicole has failed to establish that she would suffer irreparable harm if the stay was refused. The otheraspects of the test for a stay need not be considered. The motion is dismissed, with costs. J.A.