Rule 508: Stay of Enforcement

Case Summary

The Applicants were Defendants in an Action over an alleged defective pipe and were the manufacturers of the pipe. The Respondent was the Plaintiff that used the pipe. The Case Management Judge gave an Order which declared certain information relevant and material for the purpose of Questioning. The Applicants appealed that Declaration and brought the present Application in the meantime to stay the Order of the Case Management Judge, pending Appeal.

The Case Management Judge ordered the Applicants to produce any information "relating to defects that [went] to the quality of other A106 Grade B pipe or other A106 Grade B pipe that failed in testing manufactured by the defendants Mittal Steel Roman S.A. at its Roman Mill in 2004-2006", as well as information "relating to actions proposed or taken by the defendants to improve its quality of A106 Grade B pipe at the Roman Mill between 1999-2006".

O'Ferrall J.A. first highlighted that the Case Management Judge did not stay the Order pending Appeal, but rather made an additional Order directing that a Supplementary Affidavit of Records, containing the information ordered to be produced, be sworn by the Defendants prior to the Hearing of the Appeal. O’Ferrall J.A. also noted that a Stay pending Appeal would only be granted if the Applicant satisfied the Court of Appeal Judge that there was an arguable issue to be determined, that the Applicant would suffer irreparable harm if the Stay was not granted, and that the balance of convenience favoured granting the Stay.

In this case, O'Ferrall J.A. stated that it was better that little be said about the merits of the Appeal and held that it could not be said that the Appeal had “no reasonable possibility of success”. Regarding irreparable harm, the Applicants argued in oral submissions that no amount of Costs could compensate them for unnecessarily finding and producing the required information; however, O’Ferrall J.A. agreed with written submissions made by the Applicants that failing to grant the stay would render the Appeal nugatory. Finally, the Court held that, on the balance of convenience, there would be harm to the Respondent if the Stay was granted and the litigation schedule was disrupted; however, such harm might not materialize if the Stay was of limited duration. Based on this, O'Ferrall, J.A. granted the Stay until December 5, 2013, and left it up to the Panel hearing the Appeal to decide if the Stay should be continued past that date.

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