14.48: Stay pending appeal

Case Summary

The parties’ dispute related to whether an agreement for the sale of the Defendant’s land was concluded. The Defendant argued the sale was incomplete and sold the property to a third party. The Plaintiff filed a caveat against the land. At a show cause hearing under section 141 of the Land Titles Act, RSA 2000, c L-4 (“LTA”), the Chambers Judge ordered the caveat to be discharged. The Plaintiff appealed the discharge of the caveat, and applied for a Stay of the Order to discharge the caveat pending Appeal, pursuant to Rule 14.48.

Paperny J.A. held that the triparte test for a stay applied, but that section 191(3) of the LTA must be considered, as it provides for an automatic stay of an Order discharging a caveat, pending the exhaustion of the registrant’s avenues of appeal. This statutory stay implies that some prejudice or harm to the registrant is presumed. While section 191(3) may express a preference for a stay of proceedings in certain circumstances, it is not without exception. The Judge still retains discretion with respect to granting the stay. The Chambers Judge did not refer to the applicable triparte test and, as such, there was an arguable issue on Appeal. However, Paperny J.A. held that there would be no irreparable harm if the stay was not granted, nor did the balance of convenience favour the granting of the stay. The Application was dismissed.

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