AKALU v ALBANO

The Applicant sought permission to appeal part of a Chambers Order that required her to pay an amount owing under an arbitration award to the Respondent. Permission to appeal was brought pursuant to Rule 14.5(1)(g) because the dispute did not exceed $25,000. The Applicant argued that the Chambers decision did not reflect the true result of the arbitration as it related to adjustments and costs found to be owing by her.

In granting permission, Grosse J.A. agreed with the Applicant that the Chambers decision ordering payment of the amount under appeal failed to consider a later supplemental arbitration award, which explained how success was allocated between the parties. In light of this, the Court of Appeal held that it was satisfied that the proposed appeal was significant to the Applicant and that there was an aspect of the case that justified granting permission to appeal. As such, and in addition to the fact that the Applicant was self-represented, Grosse J.A. held that it was in the interests of justice that the Applicant be permitted to proceed with her appeal to ensure that an omission on the part of the Respondent did not lead to an unjust result.

The Applicant also sought a stay of the Chambers decision pending appeal and permission to adduce new evidence. The Court noted that although the stay was clearly requested by the Applicant on the basis of financial hardship, the Respondent did not make arguments opposing the stay other than suggesting that no Stay Application had been made. As a result, the Court allowed a stay of the payment obligations pending the hearing of appeal in the matter.

Further, the Court found no evidence that the Respondent would suffer prejudice if the stay were granted compared to the harm likely to be suffered by the Applicant. Weighing the positions of the parties on a balance of convenience, the Court was satisfied, relying on an inference by the Chambers Judge that the Respondent ran successful businesses and held other significant assets, and that the Applicant would suffer hardship if the Respondent’s Application for a retroactive recalculation of child support was granted, that a stay was appropriate. Grosse J.A. then invoked Rule 9.4(2)(c), which permits the Court clerk to sign a Judgment in certain circumstances, and ruled that the Court would prepare the resulting Order.