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PROCEEDINGS - Appeals and judicial review - Stays

Thursday, June 17, 2021 @ 5:38 AM  

Lexis Advance® Quicklaw®
Motion by the appellants for a stay pending their appeal of an order that permanently stayed the underlying action initiated by them in Ontario. The underlying action arose from a series of complex international commercial transactions involving several parties. The responding party defendants did not carry on business in Ontario or Canada. They commenced actions in Singapore and the UAE to enforce guarantees provided by the appellant subsidiaries. The appellants’ underlying action sought, among other things, a declaration there were no amounts owing under the guarantees and damages for unjust enrichment. The motion judge stayed the underlying action based on forum non conveniens and forum selection clauses. The appellants did not appeal the dismissal of their motion for an anti-suit injunction.

HELD: Motion dismissed. The appeal was not frivolous or vexatious. The appellants identified features of the decision under appeal that suggested the motion judge might have erroneously elided the two tests for an anti-suit injunction and staying a proceeding. The strength of the appeal did not compensate for the weakness in the other factors considered in granting a stay pending appeal. The failure to grant a stay pending appeal would not cause the appellants irreparable harm. The loss of litigation advantage did not constitute irreparable harm. The appellants had not established a risk of insolvency if the stay was not granted. There was no basis to find the foreign courts would proceed unfairly in adjudicating the Singapore and UAE actions. The balance of convenience favoured the respondent parties. The responding parties’ motion for security for costs in the appeal was a procedural step that did not constitute an act of attornment. It was not in the interests of justice to order a stay pending appeal.

UD Trading Group Holding PTE Ltd. v. TAP Private Capital Ltd., [2021] O.J. No. 2225, Ontario Court of Appeal, D. Paciocco J.A., April 28, 2021. Digest No. TLD-June142021008