Hart v. DuBois, 2011 MBCA 75

Citation: Hart v. DuBois, 2011 MBCA 75 Date: 20110825 Docket: AF 11-30-07628 IN THE COURT OF APPEAL OF MANITOBA B E T W E E N : BRYAN ALLAN HART ) C. M. DuBois ) on her own behalf (Petitioner) Respondent ) ) B. A. Hart - and - ) on his own behalf ) CHANTAL MARIE DUBOIS ) Chambers motion heard: ) August 25, 2011 (Respondent) Applicant ) ) Decision pronounced: ) August 25, 2011 FREEDMAN J.A. 1 The applicant, Chantal DuBois, seeks a stay of an order (the Order) of a Queen’s Bench judge made July 29, 2011, and signed August 2, 2011. She had first sought a stay from the judge, who denied it.

She then filed a notice of appeal on August 18, 2011, and on the same day filed a notice of motion for stay pending hearing of the appeal. 2 The Order dismissed the applicant’s appeal of the order of the Master pronounced March 9, 2011, and signed April 6, 2011. It also granted the respondent, Bryan Hart, exclusive right to occupy the residence owned by him at 535 Langevin Street in Winnipeg, effective 5:00 p.m. August 26, 2011, and required the applicant to vacate the residence by then.

It also ordered the applicant to pay the respondent’s costs of the appeal to the judge, set at $2,000. 3 The judge’s reasons for his Order are very brief. He found no merit in the appeal of the Master’s decision granting to the respondent

summary judgment dismissing some of the claims for relief claimed by the applicant. In particular, the Master dismissed the applicant’s claim for equal division of family property, exclusive occupation of the residence, and spousal support. 4 The Master’s decision, adopted by the judge, is comprehensive and need not be reviewed here in any detail.

It will be considered by the Court of Appeal when the appeal of the judge’s Order is heard. 5 It is, however, necessary to consider that decision sufficiently to permit an assessment of whether it raises a serious question to be argued on the appeal, which is one of the three factors to be taken into account on a stay application. See Labossiere et al. v. The Estate of Remi Joseph Labossiere , 2011 MBCA 38 (at para. 10 ): ….

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.) 6 Thus, if the applicant seeking a stay fails to show a serious question arising out of the Master’s decision, that alone willmean that a stay should be denied. What is a “serious question” has been discussed in many cases, but for present purposes, it is enoughto refer to RJR – MacDonald Inc. v.

Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311, where, writing in adifferent context, Sopinka and Cory JJ. said (at p. 337): What then are the indicators of “a serious question to be tried”? There are no specific requirements which must be met in order to satisfythis test. The threshold is a low one.

The judge on the application must make a preliminary assessment of the merits of the case. .... [emphasis added] 7 The Master based his decision mainly on an agreement signed by the parties on October 20, 2009, in which, among othermatters, they each waived spousal support and the applicant released the respondent from all claims or rights she might have regardingthe residence.

Further, the respondent agreed to pay the applicant $50,000, which he did, and she agreed to “permanently leave” theresidence by December 31, 2009, which she did not do. 8 The Master found, on a review of the facts and submissions, that the respondent met the initial

summary judgment burdenof raising a prima facie case for dismissal, in light of the agreement. 9 He then properly moved on to consider whether the applicant had shown the existence of a genuine issue for trial. Shehad argued, as she did here, duress and undue influence in the making and signing of the agreement.

He rejected that argument partlybecause the applicant had a draft of the agreement for two months before signing the final version (which final version she had on theday before signing) and partly because there was insufficient evidence from the applicant to support her argument that her healthproblems vitiated her signing of the agreement. 10 The Master found there was no evidence of illegitimate pressure amounting to compulsion of the will to establish duress. 11 He rejected her argument that the agreement was unfair to her. He relied on Melnyk v.

Melnyk, 2010 MBQB 121 at paras.64-68, 253 Man.R. (2d) 253, and held that unfairness is not a vitiating circumstance, since what is required is an unconscionabletransaction, which he found was not present here.

He found the evidence of inequality in the positions of the parties “extremely weak,”and said that there was “little to no evidence” that the respondent forced anything on the applicant (at para. 39). 12 He also found that the applicant had not tendered evidence to support a conclusion being reached on the question of “proofof substantial unfairness in the benefit obtained by the weaker party” (at para. 40). 13 Thus, the Master concluded that the applicant had failed to show a genuine issue for trial.

The judge agreed. 14 In seeking a stay, the applicant argued that the Master had misapplied Melnyk and had failed to apply Miglin v. Miglin,2003 SCC 24, [2003] 1 S.C.R. 303, that there was unequal bargaining power, duress and undue influence, that she did not receive legaladvice on the agreement, and that those errors created a serious issue for appeal. 15 On the question of irreparable harm, she focussed on her two school-age children who would be uprooted from their homejust before the start of school if they had to vacate the residence tomorrow.

She also argued that the balance of convenience clearlyfavoured her position. 16 The respondent argued that the evidentiary record was a strong foundation for the Master’s decision. He said the applicanthad not claimed child tax benefits or child support from the father (not him) of the two children, and that she had lived in the residencerent-free for over a year and a half from when she was to leave. He said her position was an abuse of process, and that she put herself inher present position by disregarding her obligations under the agreement.

He also argued a lack of evidence to show irreparable harmsince families regularly move and children may frequently have to move, and change schools, and there was no evidence that“irreparable harm” would be suffered. The balance of convenience favoured his position he said, and he argued that her obstinance wascausing him significant harm. Decision 17 I have concluded that the applicant has met the first part of the three-part test, and has shown that there is a serious questionor questions to be considered on appeal.

Her arguments on the possible application of Miglin and her arguments, supported to an extentby affidavit evidence on the question of duress and undue influence, raise issues that meet that part of the test. 18 As well, I have some concern whether

summary judgment is an appropriate method of disposing of the applicant’s claim,since her claim may require a detailed Miglin analysis. Some judges consider that, depending on the evidence, it may be appropriate togrant

summary judgment in a case like this. That was the view of the Master and the judge. On the other hand, see the following dictafrom the Ontario Court of Appeal in Kelly v. Kelly (2004), (ON CA), 72 O.R. (3d) 108 (at para. 22): No case is immune from an order for

summary judgment. Rule 20, however, is often poorly suited to dispose of claims that must be

resolved by applying the detailed analysis in Miglin. That analysis typically requires the court to draw inferences, determine credibilityand find facts in the face of disputed evidence. These determinations lie in the domain of the trial judge, not the motions judge. Becausethe Miglin analysis typically throws up material facts that are disputed, experienced family law judges in Ontario have been reluctant togrant

summary judgment on a claim for spousal support under s. 15.2 of the [Divorce Act] even where the parties have signed anagreement waiving support. See Bedard v. Huard, (ON SC), [2000] O.J. No. 969, 5 R.F.L. (5th) 282 (S.C.J.) atpara. 14, T.S. v. E.J.S., [2002] O.J. No. 4937 (S.C.J.) at para. 43; and Menzinger v. Menzinger (1998), (ON SC), 40O.R. (3d) 205, [1998] O.J. No. 3567 (Gen. Div.) at para. 11.

I share that reluctance in this case. 19 I conclude that there is a serious question for this court on the appeal. 20 However, the applicant has failed to persuade me that the evidence shows that she (or her children) will suffer irreparableharm if the stay is denied. Her affidavit says that she has no home to which to take her children.

But there is no real evidence of herfinancial means, or the resources available to her through family or otherwise (see, e.g., her apparent offer, with a partner, to purchase theLangevin residence from the respondent), and no evidence, or, at best, extremely little evidence, of any kind of harm that may or will besuffered if she is required to move from Langevin Street to somewhere else. The respondent has confirmed in argument that he is notselling the residence.

In any event, the applicant has produced no evidence of irreparable harm that will be suffered if the stay is denied. 21 Given my view on the issue of irreparable harm, I do not find it necessary to deal with the third part of the test, the balanceof convenience. 22 Since the applicant has not satisfied me that irreparable harm will result from the denial of a stay, I conclude that she hasfailed to meet the test set out in the authorities. Thus, I deny her application for a stay pending appeal. 23 Costs will be in the cause. J.A.