Granite Mortgage Date:, 2011 MBCA 59

Citation: Granite Mortgage Date: 20110707 Corporation v. Jurcevic, 2011 MBCA 59 Docket: AI 11-30-07571 IN THE COURT OF APPEAL OF MANITOBA B E T W E E N: GRANITE MORTGAGE CORPORATION ) M. Jurcevic ) on behalf of the Applicant (Applicant) Respondent ) ) D. P. Orlikow ) for the Respondent- and - ) ) Chambers motion heard: ) June 30, 2011CHRISTINE JURCEVIC ) ) Decision pronounced: (Respondent) Applicant ) July 7, 2011 FREEDMAN J.A. 1 The applicant seeks a stay of an order of Abra J. made May 24, 2011, and signed June 20, 2011.

That order required theapplicant to deliver to the respondent vacant possession of a house that she owns and on which the respondent has a mortgage. Themortgage is in arrears and the respondent has instituted proceedings to obtain possession, and to obtain an order for sale of the property. 2 In Labossiere et al. v. The Estate of Remi Joseph Labossiere, 2011 MBCA 38, I said (at para. 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.) 3 The order of Abra J. was made at a hearing at which the applicant’s spouse, Michael Jurcevic, spoke on her behalf (as he

did here). She argues (and her ground of appeal is) that Abra J. prevented her representative “from entering evidence and testimony pertinent to the matter.” 4 The onus is on the applicant to satisfy all three elements of the stay requirements outlined above. The burden on the applicant is heavy, as there is a presumption in favour of the correctness of the judge’s decision (see Gateway Packers Ltd. v.

Greyhound Canada Transportation Corp. , 2004 MBCA 38 at para. 5 ). 5 As to the first and third elements, for present purposes I give her the benefit of any doubt. 6 It is not necessary to decide whether there is a serious question to be argued on appeal. There is less than complete evidence (from both parties) on exactly what transpired at the hearing prior to the making of the order, and that may present real difficulties for the applicant when the case is heard on appeal.

I will assume for these purposes only, but without so finding, that the affidavit evidence filed for the applicant shows a serious question for appeal. 7 I will also assume, for present purposes, that the applicant would suffer greater harm than the respondent if a stay was denied. 8 It is on the question of irreparable harm that the stay application clearly fails. Irreparable harm has been said to be harm that is not susceptible or is difficult to be compensated in damages (see Gateway Packers at para. 5).

In my view, the applicant has not shown that she would suffer irreparable harm if the stay is refused. 9 She argued that if she was forced to leave her house, she would have no place to go, and that she needs medical treatment and medication. How her need of treatment and medication requires her to stay at the particular property was not made clear.

As to having “no place to go,” her failure to keep her mortgage current entitles the respondent, as a mortgagee whose mortgage is in default, to possession of the property, and the personal circumstances of the mortgagor do not derogate from that right. 10 It would require far more persuasive evidence of harm than the unsupported argument of “no place to go” to reach the necessary level justifying a stay. Were that not so, any defaulting mortgagor could easily delay and obstruct a mortgagee’s legal rights; that is why, in a case like this, some substantial evidence of irreparable harm is required.

None has been provided. 11 The respondent argued that the applicant could avoid giving possession simply by paying the arrears, interest and costs.

Apparently there is a dispute about the quantum of costs, but that does not prevent the applicant from making, under protest, the payment the respondent says is payable, and then seeking, by appropriate means, to recover any excess amount unjustifiably demanded. 12 There is no evidence of irreparable harm that will be suffered if the order for possession is not stayed, especially since the property can be returned to the applicant (prior to sale) upon the applicant paying the arrears, interest and costs.

The applicant has failed to meet the onus of establishing the second element. 13 For these reasons, I would deny the application for a stay, with costs to the respondent. J.A.