J.R.I.G. v. Tyhurst

J.R.I.G. v. Tyhurst

There was a serious question on appeal but on balance the prejudice of denying a stay to the appellant (including loss of his home/farm) outweighed prejudice to the respondent; accordingly the Court granted a stay of proceedings and execution pending the appeal while permitting the respondent to examine the...

Source-derived case information.

Citation
2001 BCCA 554
Parties
Respondent/plaintiff: Jill Rosslyn Iris Gorman; Appellant/defendant: James Stewart Tyhurst
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
26 September 2001
Procedural Posture
Civil Appeal / In Chambers Application for Stay of Proceedings and Execution Pending Appeal
Outcome
Application granted: stay of all proceedings, including execution, pending determination of the appeal, subject to conditions permitting examination in aid of execution and possible return to court for further directions
Legal Topics
Stay of Execution, Security for Judgment, Similar Fact Evidence, Limitation Period, Balance of Convenience, Examination in Aid of Execution
Source Language
english
Tort Civil Procedure Evidence Appeal Enforcement of Judgment Stay of Execution Security for Judgment Similar Fact Evidence +3 more

Source-derived case record

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Parties

Jill Rosslyn Iris Gorman

Respondent/plaintiff

James Stewart Tyhurst

Appellant/defendant

Procedural Posture

Civil Appeal / In Chambers Application for Stay of Proceedings and Execution Pending Appeal

Legal Issues

  1. 1 Whether there is a serious/arguable question on appeal (including admissibility of similar fact evidence and limitation period)
  2. 2 Whether a stay of proceedings and execution should be granted pending appeal
  3. 3 Whether the respondent's impecuniosity would render a successful appeal nugatory

Ratio Decidendi

There was a serious question on appeal but on balance the prejudice of denying a stay to the appellant (including loss of his home/farm) outweighed prejudice to the respondent; accordingly the Court granted a stay of proceedings and execution pending the appeal while permitting the respondent to examine the appellant in aid of execution and reserving the right to revisit the matter based on the information obtained.

Court Disposition

Application granted: stay of all proceedings, including execution, pending determination of the appeal, subject to conditions permitting examination in aid of execution and possible return to court for further directions

Orders

  • Stay of all proceedings, including execution, pending the judgment of the Court of Appeal
  • Respondent permitted to examine the appellant in aid of execution to determine his financial circumstances