In 2005 the Plaintiff individual initiated an Action against his siblings and the Defendant companies alleging that he was an equal beneficiary of a Trust which held one of the Defendant companies. The Action and the Plaintiff’s subsequent Appeal were dismissed in 2013 (with leave to Appeal to the Supreme Court of Canada denied). The Plaintiff commenced a second Action in 2014, seeking to set aside the Judgment in the 2005 Action. The Defendants sought to strike the second Action, but the Application was denied on the basis that the Plaintiff had provided new evidence which had a reasonable probably of being found “practically conclusive” of the matter. The Defendants immediately filed Notices of Appeal, and an Application to stay the second Action pending the determination of the Appeals.

Justice Rowbotham applied the test for a Stay from RJR-MacDonald Inc v Canada, 1994 CanLII 117 (SCC), [1994] 1 SCR 311 which requires that: there is a serious question to be tried; the Applicant will suffer irreparable harm if the Stay is not granted; and the balance of convenience favours granting the Stay. Justice Rowbotham considered the elements of the test as it applied to the case at bar, and held that a Stay was appropriate in the circumstances. The Action was therefore stayed pending the hearing of the Appeal.