BRAD CABANA v. KATHERINE CABANA, 2023 NLCA 18

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation : Cabana v. Wells, 2023 NLCA 18 Date : June 6, 2023 Docket Number : 202301H0019 BETWEEN: BRAD CABANA and KATHERINE CABANA APPLICANTS/APPELLANTS AND: JOE WELLS FIRST RESPONDENT AND: ROD MURPHY SECOND RESPONDENT AND: RE/MAX EASTERN EDGE REALTY LTD. THIRD RESPONDENT AND: KATRINA A. BRANNAN FOURTH RESPONDENT AND: HUGHES & BRANNAN LAW OFFICE FIFTH RESPONDENT AND:

JOHN D. BERGHUIS SIXTH RESPONDENT AND: CONTROL SURVEYS LIMITED SEVENTH RESPONDENT AND: BILL MARTIN EIGHTH RESPONDENT AND: BILL MARTIN CONSTRUCTION LIMITED NINTH RESPONDENT AND: NEWFOUNDLAND AND LABRADOR CREDIT UNION TENTH RESPONDENT Coram: W.H. Goodridge J.A. Court Appealed From: Supreme Court of Newfoundland and Labrador, General Division 202001G3963 (2023 NLSC 46) Application Heard: June 6, 2023 Judgment Rendered: June 6, 2023 (orally) Memorandum of Disposition Filed: June 8, 2023 Counsel for the Applicants/Appellants: Self-Represented Counsel for the First, Second and Third Respondents: Christopher J.

Peddigrew K.C. Counsel for the Fourth and Fifth Respondents: No Appearance Counsel for the Sixth and Seventh Respondents: Sheri H. Wicks Counsel for the Eighth and Ninth Respondents: Glen W. Picco K.C. Counsel for the Tenth Respondent: Bionca Bastarache Authorities Cited: RJR — MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311

MEMORANDUM OF DISPOSITION W.H. Goodridge J.A.: [1] This application for a stay of enforcement arises from a decision of the Supreme Court, General Division (Decision), orderingBrad and Katherine Cabana (the applicants) to deposit $30,000 with the Court Registry as security for costs.

On April 5, 2023, theapplicants filed a notice of appeal of the Decision, and on May 5, 2023, the applicants filed this application for a stay of the orderpending determination of the appeal. [2] The respondents filed nothing in opposition to the application, and at the hearing of this application, took no position. [3] There is a three-stage test for courts to apply when considering an application for a stay (RJR—MacDonald Inc. v.

Canada(Attorney General), (SCC), [1994] 1 S.C.R. 311, at 334): • a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried; • it must be determined whether the applicant would suffer irreparable harm if the application were refused; and • an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the staypending a decision on the merits.

Preliminary assessment of merits [4] Regarding the first stage of the test, I am satisfied, based on a review of the grounds set out in the notice of appeal, and theneutral position of the respondents, that the low threshold that applies at this stage of the inquiry is met. I would not characterize theappeal as frivolous or vexatious or with no arguable basis. [5] The applicants’ written brief expands on the grounds set out in the notice of appeal. It states that the applications judge erredby relying on evidence not before the court in finding that the applicants were not acting in good faith.

In addition, the applicants point to“prejudicial and unnecessary language” (their words) contained in the reasons for decision to support their secondary argument that thereexists a reasonable apprehension of bias. Irreparable harm [6] The applicants are neither able to pay the security for costs from their present means, nor are they capable of borrowing to doit. That is not contentious. It was a finding of fact by the applications judge (Decision, at para. 27). The applicants’ failure to pay the$30,000 security will result in a proceeding to strike their statement of claim.

Denial of access to the courts, the inevitable result of theapplication to strike, would constitute irreparable harm. This second stage of the test favours granting the stay. Balance of convenience [7] Refusal of the stay application will likely result in the striking of the statement of claim. Striking the claim without a hearingon the merits is a greater harm when compared to the relatively minor harm that the respondents would suffer if the application isallowed. Dates for hearing the appeal are available during the autumn sitting.

This is a relatively brief delay, amounting to a minorinconvenience to the respondents. This third stage of the test, balance of convenience, also favours granting the stay. Disposition [8] The elements of the test for granting a stay of enforcement of the applications judge's order are satisfied. Accordingly, theapplication is allowed and the stay is granted, pending determination of the appeal. [9] Costs shall be costs in the cause. _____________________________ W.H. Goodridge J.A.