Anderson v Braun, 2015 SKCA 112

Court of Appeal for Saskatchewan Docket: CACV2691 Citation: Anderson v Braun , 2015 SKCA 112 Date: 2015-10-30 Between: Dale Anderson Respondent/Respondent by Cross Appeal/Appellant (Third party) And Larry Braun, 627332 Saskatchewan Ltd., 627360 Saskatchewan Ltd., 627469 Saskatchewan Ltd., 627470 Saskatchewan Ltd., and 627471 Saskatchewan Ltd.

Applicants/Appellants by Cross Appeal/Respondents (Plaintiffs) Jason Peszko and Bill Roe, operating under the name, Roe & Company Applicants/Respondents by Cross Appeal/Respondents (Defendants) Bill Thompson Respondent/Respondent (Third Party) Larry Machula Respondent/Respondent (Third Party) Before: Jackson J.A. (in Chambers) Disposition: Larry Braun’s application allowed (Applicants); Jason Peszko and Bill Roe application dismissed (Applicants/Respondents) Written reasons by: The Honourable Madam Justice Jackson Application from: 2015 SKQB 64 , Saskatoon Chambers Date: 26 August 2015 Counsel: Curtis Onishenko for the Applicants (Larry Braun) Robert Kennedy, Q.C. for the Applicants/Respondents (Jason Peszko and Bill Roe) Deryk Kendall for the Respondent (Bill Thompson) No one appearing for the Respondent (Larry Machula) No one appearing for the Respondent (Dale Anderson) Jackson J.A. [ 1 ] These reasons concern two applications for orders under Rule 15(1) of The Court of Appeal Rules to lift, in part, the stay of execution of the judgment of Allbright J. (see Braun v Peszko , 2015 SKQB 64 , 10 WWR 109 [ Braun ]). [ 2 ] Briefly speaking, the plaintiffs (Mr.

Larry Braun and a series of his numbered companies), who are also the cross-appellants in the appeal, sued the defendants, Jason Peszko and Bill Roe, operating under the name, Roe & Company [the Law Firm] for negligence arising from acts and omissions in a real estate transaction. The Law Firm then issued a third party claim against two realtors, Bill Thompson and Dale Anderson, and a third person, Larry Machula, described in the judgment as a business entrepreneur. Mr. Thompson then cross-claimed against Messrs. Anderson and Machula. [ 3 ] Allbright J. found that the Law Firm had been negligent but Mr.

Braun contributed to that negligence and assessed damages between Mr. Braun and the Law Firm accordingly. He also found that Mr. Thompson was liable for 25% of the damages ascribed to the Law Firm and that Messrs. Anderson and Machula were jointly and severally liable for 10% of that amount plus 20% of the damages owing by the Law Firm to Mr. Braun. [ 4 ] Specifically, the liability portion of the judgment under appeal reads as follows: [229] The plaintiffs’ loss is $514,800 plus an appropriate interest component.

In the first instance, I will apportion fault between the plaintiffs and the defendants following from the plaintiffs’ claim and the defendants’ formal response to that claim. Section 2(1) of the Act [ The Contributory Negligence Act , RSS 1978, c C-31] stands for the proposition that where two or more persons, by their fault cause damage to one or more of them, the liability for such damage is in proportion to the degree in which each person is at fault.

In the event that it is not possible to establish different degrees of fault, liability is to be apportioned equally. [230] I have concluded that the defendants are found to be 80% at fault and the plaintiffs 20% contributorily at fault. This percentage apportionment renders the defendants in the first instance, before considering a further apportionment of liability and damages arising out of the third party claims , liable for $411,840 of the plaintiffs’ damages.

The plaintiffs are responsible for 20%, or $102,960 of their damages. [231] The plaintiffs have claimed against no party other than the defendants and thus no adjustment vis-à-vis other parties is to be made. [232] As a result, my judgment finds the plaintiffs contributorily negligent for that percentage and amount of the overall damages and interest thereon.

[233] The defendants have claimed under their notice of third party claim against Thompson, Anderson and Machula for damages in an amount equal to any damages which may be found to be owing by Peszko to the plaintiffs, and for a declaration that Peszko is entitled to be indemnified by Thompson, Anderson and Machula in respect to any liability arising from the plaintiffs’ claim, as well as costs. [234] Finally, Thompson has cross-claimed against Anderson and Machula indemnification for any damage award made against him and for costs. [235] Bearing in mind s. 3 of the Act in addressing the third party claim, I find Thompson to be liable for 25% of the damages ascribed to the defendants.

This percentage amounts to $102,960 . [236] Pursuant to s. 3(2) and more particularly s. 3.1(2) of the Act , I find the third parties Anderson and Machula to be liable for 20% of the damages ascribed to the defendants. This percentage amounts to $82,368 .

In applying the provisions of ss. 3and 3.1 of the Act , Anderson and Machula (an undischarged bankrupt) are to be jointly and severally liable to the defendants for this amount . [237] I have concluded for reasons recited earlier herein that Thompson’s cross-claim against Anderson and Machula is to be jointly and severally allowed, and I fix the amount of that cross-claim at 10% of Thompson’s liability of $102,960.

This percentage (10%) amounts to $10,296 awarded to Thompson . [238] In the end result, the defendants are liable for damages in the amount of $226,512 (80% of $514,800 = $411,840 less $102,960 and $82,368). [239] The third party Thompson is liable for damages in the amount of $92,664 (25% of $411,840 = $102,960 less $10,296 = $92,664). [240] The third parties Anderson and Machula are jointly and severally liable for damages in the amount of $92,664 (20% of $411,840 = $82,368 plus 10% of $102,960 = $10,296, for a total of $92,664). [241] The

summary for liability for damages then is: • The defendants Peszko and Roe & Company $226,512 • The plaintiffs $102,960 • Third party Thompson $ 92,664 • Third parties Anderson and Machula (jointly and severally – s. 3.1 of the Act ) $ 92,664 $514,800 [242] Pursuant to The Pre-judgment Interest Act , SS 1984-85-86, c P-22.2, the plaintiffs are entitled to pre-judgment interest from the date of August 1, 2007 to the date of payment, calculated on the amount of $411,840.

The defendants are liable for payment of pre- judgment interest in proportion to their responsibility for damages ($226,512). [243] The third party Thompson is liable for payment of pre-judgment interest in proportion to his responsibility for damages ($92,664). [244] Similarly, the third parties Anderson and Machula are jointly and severally liable for payment of pre-judgment interest in proportion to their responsibility for damages ($92,664). (Emphasis added) [ 5 ] Counsel for Mr. Braun and the Law Firm agreed on the terms of a proposed Formal Judgment as follows (Mr.

Thompson’s counsel being unavailable), which subsequently was issued out of the Court of Queen’s Bench: JUDGMENT AFTER TRIAL BY JUDGE WITHOUT A JURY The 27 th day of February 2015. … the Plaintiff [sic] shall recover from the Defendants [the Law Firm] the sum of $411,840 . … the Defendants [the Law Firm] shall recover from the Third Party Bill Thompson the sum of $185,328.00 . … pursuant to the Third Party Cross Claim that Bill Thompson shall recover $92,664.00 from the Third Parties, Dale Anderson and Larry Machula, jointly and severally.

All amounts are to be paid with pre-judgment interest from the date of August 1, 2007. The Court orders that the Plaintiffs are entitled to a total of 80% of party and party costs to be assessed and paid by the Defendants. The Court further orders that the Defendants are entitled to recover 36% of the total assessed party and party costs from the Third Party Bill Thomson. The Court further orders that the Third Party Bill Thompson is entitled to recover 18% of the total assessed party and party costs from the Third Parties Dale Anderson and Larry Machula, jointly and severally. (Emphasis added) [ 6 ] Mr.

Anderson filed a notice of appeal on the last day of the 30-day appeal period as against his liability under the third party claim and the cross-claim.

[ 7 ] Following receipt of Mr. Anderson’s appeal, and notwithstanding the fact that the Law Firm had not filed an appeal from the judgment against it, Mr. Braun filed a Cross-Appeal seeking to have the judgment varied in part as follows:

a) Set aside the finding that the Cross-Appellants are 20% contributorily at fault for their loss;

b) Order that the Cross-Appellants are entitled to damages for loss of use of $514,800 from July 1, 2007, to the date of the judgment of this Honourable Court at a rate of 5% per annum instead of prejudgment interest pursuant to The Prejudgment Interest Act , SS 1984-85-86, c P-22.2 ; and

c) Order that the Cross-Appellants are entitled to party and party costs without a deduction. (Notice of Cross Appeal, p. 1) [ 8 ] The Law Firm has not appealed the judgment against it, and as of the writing of these reasons, Mr. Thompson has not appealed the judgment against him. Mr. Anderson’s appeal and Mr. Braun’s cross-appeal are thus the only appeals before the Court. [ 9 ] It is against this backdrop that Mr. Braun and the Law Firm each apply to lift the stay of execution against enforcement of the judgment in their favour. Each application is stated to be a “companion” application to the other. [ 10 ] Mr.

Braun asserts that Mr. Anderson’s appeal is only a dispute as to whether the latter should be found liable for a part of the liability found against Mr. Thompson. His counsel writes: 4. … The Appeal commenced by Dale Anderson will only be limited to the question as to whether or not the Learned Trial Judge erred in allowing the Cross-Claim and ordering Judgment against him in the amount of $92,664, jointly and severally with Larry Machula. … 7.

The Appeal however, is brought on the narrow grounds that the Learned Trial Judge erred in apportioning liability to the Third Party, Dale Anderson, pursuant to the Third Party, Bill Thompson’s Cross-Claim. Significantly, the Appeal does not dispute the apportionment of liability between the Plaintiffs and the Defendants. (Memorandum of Law on Behalf of the Respondents, pp. 1, 2) Counsel asserts further that if Mr. Anderson’s appeal is successful, the only effect it will have is to reduce Mr. Thompson’s judgment against Mr. Anderson. However, Mr. Thompson’s judgment against Mr. Machula will remain. [ 11 ] Mr.

Braun states he is prepared to discontinue his Cross-Appeal if his application is granted and he is permitted to enforce his judgment against the Law Firm. Indeed Mr. Braun states the Court should “partially lift the stay … against [the Law Firm] on the condition that the Cross Appeal be discontinued” (emphasis added, p. 4). Mr. Braun’s Draft Order states accordingly: IT IS HEREBY ORDERED: THAT the stay of execution imposed pursuant to Rule 15 of The Court of Appeal Rules is lifted. THAT the Respondents discontinue their Cross-Appeal.

OR THAT the stay of execution imposed pursuant to Rule 15 of The Court of Appeal Rules is continued on condition: 1. That the Defendants (Respondents By Cross Appeal) pay to the Plaintiffs (Appellants By Cross Appeal) the sum of $411,840.00 with pre-judgment interest from the date of August 1, 2007, as well as costs in the sum of $24,048.53. 2. That the Plaintiffs (Appellants By Cross Appeal) discontinue their Cross- Appeal . 3.

The costs of this application shall be costs in the cause. (Emphasis added, Draft Order p. 1–2) [ 12 ] The Law Firm has applied for similar relief, saying that its application is a “companion application” to that of Mr. Braun. The Law Firm indicates that it is quite prepared to pay Mr. Braun the net amount of the judgment of $226,512 (after taking into account the Third Party judgment that it holds against Mr. Thompson). Thus, the Law Firm wants the stay of execution against its part of the Formal Judgment against Mr. Thompson lifted. Like Mr. Braun, the Law Firm asserts that Mr.

Anderson’s appeal “can neither impact nor affect the judgment in the main action as between the Plaintiffs and these Defendants, nor it is submitted, can this appeal (from a “Cross- Claim” judgment against him) impact upon the Third Party judgment obtained by the Defendants against Mr. Thompson” (Memorandum of Law on Behalf of the Respondents (Defendants), p. 3). Based on this

interpretation, the Law Firm advises that lifting the stay will “effectively mean that the Defendants will have no further interest in Mr. Anderson’s Appeal.” The Law Firm would be a party to the appeal in name only. Counsel for the Law Firm indicated during oral argument that if his application is not successful, he has instructions to proceed to apply for an order permitting his client to late file a Notice of Appeal. [ 13 ] By way of relief on this application, the Law Firm asks for the following: (

a) An Order pursuant to Rule 15 of The Court of Appeal Rules , lifting the stay of execution of the Judgment of the Honourable Mr. Justice Allbright issued the 27 th day of February, 2015, insofar as the stay of execution concerns the enforcement by these Respondents, of the Third Party Judgment against the Respondent (Third Party), Bill Thompson;

(

b) Alternatively, an Order requiring as a condition of the continuation of the stay, that the Respondent (Third Party) pay to these Respondents the sum of $185,328 with pre-judgment interest from the date of August 1, 2007, as well as costs in the sum of $10,821.83. (Notice of Motion to Lift Stay of Execution, p. 2) [ 14 ] On the hearing of this application, Mr. Anderson did not appear and filed no materials. The terms of his Notice of Appeal, however, are relevant to this application. [ 15 ] Mr.

Anderson alleges in his Notice of Appeal that “the learned trial judge erred in allowing Thompson’s Cross-Claim against Anderson and Machula jointly and severally” (Anderson Notice of Appeal, para. 3(o)). This is understandable, as Mr. Thompson’s Cross-Claim is against Messrs. Anderson and Machula. [ 16 ] In addition to this claim, however, Mr. Anderson also asserts that “the learned trial judge erred in holding that Anderson and Machula were liable for 20% of the damages ascribed to the defendants jointly and severally” (para. 3(p)).

This, of course, is not directed, or at least not directed exclusively, against Mr. Thompson, but is also an assertion that the trial judge erred by finding any one but the Law Firm liable to Mr. Braun. It is based on a reading of the reasons for judgment as opposed to the Formal Judgment. [ 17 ] On this point, Mr. Anderson asserts these errors in the trial decision: a. The learned trial judge erred in finding that “Peszko’s oversight certainly contributed to the ultimate problem but the cause of the problem was not his alone”. b.

The learned trial judge erred in finding that it was disingenuous to suggest the entire fault in the matter may be properly placed at the doorstep of Peszko”. c. The learned trial judge erred in holding that it was disingenuous for Anderson and Machula to, for different reasons, collectively assert that “but for” Peszko’s handling of the matter, there would have been no problem. d. That the learned trial judge erred in holding that without the “wording” that the agreement would not have been open to [a] differing

interpretation and that the matter may not have proceeded to litigation. e. That the learned trial judge erred in holding that “To suggest that “but for” Peszko’s negligence in not reviewing the Statement of Adjustments with Braun there would have been no problem is to inappropriately ignore how the vehicle giving rise to the dispute had its genesis”. … i. The learned trial judge erred in holding that as Peszko failed to meet the requisite standard he bore a significant portion of the responsibility for the occurrence of the ultimate dispute.

It is the appellants’ submission that the learned trial judge should have held that Peszko bore the full responsibility for the occurrence of the ultimate dispute . … m. That the learned trial judge erred in not holding that the act or omission of Peszko (not reviewing the Statement of Adjustments with Braun) ·was clearly subsequent to and severable from the act or omission of Anderson and Machula (whatever that act or omission was) and not substantially contemporaneous. In other words that there was no nexus or causal connection between their purported act or omission and the act or omission of Peszko. … r.

That the learned trial judge erred in applying the provisions of the Contributory Negligence Act to the facts in the manner that he did. (Emphasis added, Anderson Notice of Appeal, p. 1–3) [ 18 ] In addition to alleging grounds of appeal directed to persuading the Court to allow the appeal of Mr. Thompson’s cross-claim against Mr. Anderson, the latter also indicates that the appeal is taken upon this ground: c.

The learned trial judge held at paragraph 177 of his judgment that had Peszko reviewed the Statement of Adjustments with Braun, that Braun would have identified what would have clearly been a shortfall of $514,800.00. On that basis the learned trial judge found that liability attached to Peszko in failing to meet the requisite standard. (p. 3) [ 19 ] Concluding his statement of claim, Mr.

Anderson asks for the following relief: That the judgment as it pertains to the Appellant, Dale Anderson, be set aside and that the Respondents, Jason Peszko and Bill Roe operating under the name Roe & Company, claim against the Appellant be dismissed and the Third Party, Bill Thompson’s Cross-Claim against the Appellant, also be dismissed, all with costs. (p. 4) [ 20 ] On the application before me, Mr. Thompson says he need not have filed a Notice of Appeal but that he can rely on Mr. Anderson’s Notice of Appeal. He states that as the respondent to Mr. Anderson’s appeal, he is entitled to agree with Mr.

Anderson that the only party who should have been found liable is the Law Firm. In that regard, he relies on this Court’s general powers, which he

says find expression in such decisions as Mayne v Kidd, (SK CA), [1951] 2 DLR 652 (SKCA), where the Court statedit “has the power to do justice between the parties when a motion to vary has not been served” (para. 17, CanLII). That isMr. Thompson’s first argument resisting the Law Firm’s application to lift the stay as it affects him. [21] Mr. Thompson’s second argument pertains to what he calls “errors” in the Formal Judgment. He states the Formal Judgmentis not accurate. According to him, it should not state he is liable for the whole of the amount owed by all of the third parties, i.e.,$185,328.

He says this ignores the fact that the Law Firm issued a Third Party claim against all three realtors. He intends to argue beforethe Court hearing Mr. Anderson’s appeal that the Formal Judgment should have tracked para. 235 of the reasons for judgment, which Irepeat here for ease of reference: [235] Bearing in mind s. 3 of the Act in addressing the third party claim, I find Thompson to be liable for 25% of the damages ascribed tothe defendants. This percentage amounts to $102,960. (Braun) On the basis of this argument, Mr.

Thompson submits that if the Court decides to lift the stay between the Law Firm and him, the stayshould only be lifted at most in relation to $102,960. [22] Thus, in cascading sequence, the positions of the parties on the lifting of the stay are as follows: (

a) Mr. Braun: Wishes the stay lifted in its entirety as it affects him, but the lifting of the stay is conditional upon himdiscontinuing his Cross-Appeal against the Law Firm. (

b) The Law Firm: Not opposed to the lifting of the stay of the judgment between it and Mr. Braun as long as the stay ofexecution is lifted as it affects its judgment against Mr. Thompson either by having the full amount of the Formal Judgment paid to it($185,328) or $102,960 paid to it and the balance paid into court. If it is not successful in this application, the Law Firm has instructionsto apply to late-file its appeal so as to open up Mr. Braun’s judgment against it. (

c) Mr. Thompson: First position—not opposed to the lifting of the stay as between Mr. Braun and the Law Firm as long as thestay is not lifted between him and the Law Firm. Second position—if the stay between the Law Firm and him is to be lifted, it should belifted to the extent of his liability as expressed in the reasons for judgment ($102,960) and not to the extent of his liability as expressed inthe Formal Judgment ($185,328). (

d) Mr. Anderson and Mr. Machula: By virtue of their absence, they take no position on the lifting of the stay as against theLaw Firm or Mr. Thompson.

No one has applied to lift the stay as against them. [23] It is to these circumstances thus elucidated that I must apply the law pertaining to the lifting of a stay under Rule 15(1) of theCourt of Appeal Rules: Stay 15(1) Unless otherwise ordered by the judge appealed from or by a judge, the service and filing of a notice of appeal does not stay theexecution of a judgment or an order awarding mandamus, an injunction, alimony, or maintenance for a spouse, child or dependant adult.Unless otherwise ordered by a judge, the service and filing of a notice of appeal stays the execution of any other judgment or orderpending the disposition of the appeal. (Emphasis added) [24] Saskatchewan courts have lifted stays of execution imposed on money awards obtained at trial: see, for example, TekarraProperties v Saskatoon Drug and Stationery Company Ltd. (1985), (SK CA), 37 Sask R 286 (CA) [Tekarra]; MacKayConstruction Ltd. v Potts Construction Company (1983), (SK CA), 25 Sask R 81 (CA) [MacKay]; and Bank of NovaScotia v Simonot (1992), (SK CA), 100 Sask R 257 (CA) [Simonot]. [25] In Tekarra, a per curiam judgment, this Court said the principles guiding the Chambers judge’s discretion under Rule 15(1)are “appropriateness and justice” (para. 7).

The factors usually influencing the exercise of discretion to lift the stay when the judgmentappealed from is a money award is to alleviate the effects of high borrowing costs or the risk of dissipation of assets.

On occasion, aChambers judge will weigh the merits of the appeal on a preliminary basis and order part-payment of the money award to the respondent(see Vagi v Peters (1989), (SK CA), 74 Sask R 46, where liability had been admitted at trial, leaving the amount onlyin issue on appeal). [26] A Chambers judge, lifting a stay of execution from a money award, must, however, be mindful of the consequences of thedecision under appeal being successfully appealed, necessitating the recovery of monies already released by the Chambers judge: seeRieger v Burgess (1986), (SK CA), 53 Sask R 201 (CA) [Rieger No. 1]; Rieger v.

Burgess (1986), (SK CA), 53 Sask R 202 (CA); and Rieger v. Burgess (1987), (SK CA), 53 Sask R 199 (CA). Often, in order to effectjustice between the parties where the judgment under appeal is a money award, the amount of the judgment, with or without costs, ispaid into court or a letter of credit or other form of guarantee is provided to the court: see MacKay, Rieger No. 1, and a series ofauthorities referred to in Simonot. [27] Applying these authorities, I have concluded that it is not possible to link the positions of Mr. Braun and the Law Firm in themanner they suggest.

While the applications are said to be “companion applications,” they must be treated separately. I cannot beinfluenced by the Law Firm’s intention to file a Notice of Appeal if it is not successful on this application. Either the Law Firm is entitled

to have the stay of execution of its judgment against Mr. Thompson lifted or it is not entitled to have the stay of execution lifted. [28] Similarly, I cannot make the success of Mr. Braun’s application contingent upon him discontinuing his Cross-Appeal. IfMr. Braun and the Law Firm have agreed that the Cross-Appeal will be discontinued if the stay is lifted, that is up to them to resolve.Indeed, this was Mr.

Braun’s subsidiary submission: i.e., that I should take the conditional nature of his application to be an undertakingthat he has given to the Law Firm, which he will fulfill if his application is granted. [29] Having said that, I see no basis upon which the Law Firm can resist Mr. Braun’s application to lift the stay. The fact that theLaw Firm has not filed a Notice of Appeal contesting its liability to Mr. Braun is the complete answer to the latter’s application to lift thestay. Indeed, it is arguable that the judgment as it relates to Mr. Braun’s claim is not stayed by Mr. Anderson’s appeal in any event.

Inote, however, that other judges have made express orders in similar circumstances: Thompson v Haley (SKCA) andSchimelfenig v Schimelfenig, 2014 SKCA 4, 433 Sask R 31. In both of these decisions, the Chambers judge lifted the stay so as to permitthe enforcement of the judgment as against the undisputed amount awarded by the judgment. [30] The difficult question is whether the stay should be lifted as between the Law Firm and Mr. Thompson. Again, if I look at theFormal Judgment only, the fact that Mr.

Thompson has not formally contested his liability by filing a Notice of Appeal should also be acomplete answer to the Law Firm’s application. The issue on this application, however, is whether I should be concerned aboutMr. Anderson’s appeal and its effect on the reviewability of the judgment as between the Law Firm and Mr. Thompson. [31] It is quite clear that one plank of Mr. Anderson’s appeal is that he should not have been found liable to Mr. Thompsonbecause the latter should not have been found liable at all. Mr.

Anderson’s appeal suggests he should not have been found liable to theLaw Firm because the only party who should bear the cost of Mr. Braun’s claim is the Law Firm. [32] If Mr. Anderson is permitted to proceed with these arguments, and is successful in that regard, it will have implications forthe judgment for damages that the Law Firm holds against Mr. Thompson. Similarly, if Mr. Thompson is permitted to supportMr.

Anderson’s arguments by those of his own, that too may have implications for the Law Firm’s position. [33] In this application, the Law Firm bears the onus to persuade me that it is in the interests of justice that it should receive all ofsome of the fruits of its judgment now as opposed to waiting until the Court hears the matter.

The Law Firm, however, does not allege itwill suffer from high borrowing costs elsewhere in its portfolio in order to satisfy the Braun judgment, pending the resolution of theappeal, nor does it allege that if the appeal presently before the Court is not successful, it will not be able to recover the amount of itsjudgment from Mr. Thompson. During oral argument, counsel for Mr. Thompson indicated that his client is fully insured such that thereis no question of impecuniosity. Counsel for the Law Firm did not suggest otherwise. The sole basis of the Law Firm’s argument is thatMr.

Thompson’s liability to the Law Firm cannot be affected by Mr. Anderson’s appeal. [34] As I have indicated, however, both Mr. Anderson and Mr. Thompson intend to assert that the trial judge erred by not holdingthe Law Firm solely liable for Mr. Braun’s loss. Whether Mr. Anderson can successfully assert that Mr. Thompson is not liable to theLaw Firm or whether Mr. Thompson can make those arguments without applying to vary or to appeal the judgment are issues that mustbe decided by a panel of this Court and not by the Chambers judge.

Thus, I have decided not to grant the Law Firm’s application to liftthe stay as against it. [35] In

summary, Mr. Braun’s application is allowed. The stay is declared lifted in relation to the enforcement of his judgmentagainst the Law Firm, including pre-judgment interest and costs. Whether he withdraws his Cross-Appeal is left to be governed by hisundertaking with the Law Firm made in Chambers. The Law Firm’s application is dismissed. [36] While Mr. Braun’s application asked for “costs in the cause,” his counsel indicated orally that he was not seeking costs.Neither Mr. Thompson nor the Law Firm’s counsel sought costs. There will thus be no order as to costs. “Jackson J.A.” Jackson J.A.