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Creditors & Debtors Law - Execution - Stay of execution - Pending appeal

Thursday, December 15, 2016 @ 7:00 PM  


Application by the plaintiff, M. Thompson Holdings, to lift a stay of execution of a judgment under appeal. The plaintiff and the defendant, Haztech Fire and Safety Services, entered a 10.5-year commercial lease in 2013. The defendant took possession in June 2013. By September, the defendant was in breach of the lease. The plaintiff formally terminated the lease in October 2013. The plaintiff applied for summary judgment. The defendant acknowledged its breach of the lease but disputed the calculation of damages. The plaintiff obtained partial summary judgment of $6,666 for the pre-breach period, $416,991 for the post-breach period, plus approximately $80,000 in additional damages. Allowing a credit for past payment, the plaintiff was awarded approximately $500,000 plus costs of $25,000. A claim for summary judgment for future damages was dismissed. The defendant appealed to the Court of Appeal. The plaintiff sought to have the automatic stay of execution lifted with related relief due to a concern the defendant would dissipate assets pending resolution of its appeal.

HELD: Application allowed to limited extent. Lifting a stay of execution required more than a general contention an appellant might dissipate assets to avoid execution of a monetary judgment. On appeal, the defendant did not contest its liability for the pre-breach damages or additional damages related to construction costs. Factoring the amount paid by the defendant to date, there remained approximately $21,000 in damages that would have to be paid regardless of the outcome of the appeal. The stay was accordingly lifted to the limited extent of exposing $21,000 of the judgment to immediate enforcement by the plaintiff.