TERRIGNO v DEAR

The Applicant, Mr. Terrigno, sought a Stay pending Appeal pursuant to Rule 14.48(b).

In a separate but related Action, Mr. Terrigno filed a Statement of Claim alleging defamation (the “Defamation Action”). The present Action was against the Defendant’s lawyer in the Defamation Action, alleging that the Defendant’s lawyer, Mr. Dear, committed the tort of intrusion upon seclusion in the Defamation Action (the “Records Action”).

Applications were filed in both the Defamation Action and the Records Action. Mr. Terrigno appealed one of the resulting endorsements in the Defamation Action, which directed that the Defendant could set their Summary Dismissal Application down for a hearing date (the “Stay Application”).

The Court reviewed the factors for a stay: (1) whether there is a serious question to be determined; (2) whether the applicant will suffer irreparable harm if the stay is not granted; and (3) whether the balance of convenience favours granting the stay.

In analyzing the first factor, Ho J.A. found that the threshold was low and was met in this case by demonstrating that the Applicant was not frivolous or vexatious. The Court also found that the second and third factors were met because there was a sufficient probability that any benefit of Mr. Terrigno’s Appeal will be lost if a stay was not granted.

The Court considered prejudice to Mr. Dear but found that it could be mitigated by the Appeal proceeding efficiently. Thus, the Stay Application was granted until the Appeal could be heard.