Henry v. A.B.

2025 BCCA 180 Henry v. A.B.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Henry v. A.B., 2025 BCCA 180 Date: 20250526 Docket: CA50443 Between: Ivan William Mervin Henry Appellant/ Respondent on Cross Appeal (Defendant) And A.B., C.D., E.F., G.H., and I.J. Respondents/ Appellants on Cross Appeal (Plaintiffs)

FILE SEALED IN PART Before: The Honourable Justice Iyer (In Chambers) On appeal from: An order of the Supreme Court of British Columbia, dated January 29, 2025 (A.B. v. Henry, 2025 BCSC 137, Vancouver Docket S179580). Oral Reasons for Judgment Counsel for the Appellant/Respondent on Cross Appeal: C.M. Considine, K.C. P.M. McGowan, K.C. C.A. Massey Counsel for the Respondents/Appellants on Cross Appeal: I. Kordic K. Gourlay Place and Date of Hearing: Vancouver, British Columbia May 22, 2025 Place and Date of Judgment: Vancouver, British Columbia May 26, 2025 Summary: The appellant seeks to stay execution of a significant damages award pending his appeal. Held: application dismissed. The appeal meets the low merits threshold. However, in the unusual circumstances of this case, the potential risks can be addressed by orders under s. 30 of the Court of Appeal Act. It is therefore not in the interests of justice to grant a stay. The respondents are ordered not to execute against the appellant's home or vehicle, the appellant is to pay monies into respondents' counsel's trust account to be held in trust for them and, if further assets of the appellant are located, he is at liberty to reapply for a stay. IYER J.A.: Overview [1] The appellant, Ivan Henry, applies to stay execution of the civil damages award made against him, pending the outcome of his appeal. [2] The underlying action

is a civil damages claim commenced by five plaintiffs who allege Mr. Henry sexually assaulted them in separate incidents during 1981 and 1982. [3] Mr. Henry was criminally charged with a number of sexual assaults in 1982. Following a jury trial in 1983, he was convicted of ten counts relating to eight women. Later that year, he was later sentenced as a dangerous offender to an indeterminate sentence. He was incarcerated for just over 26 years. [4] In 2010, this Court allowed Mr. Henry's wrongful conviction appeal. Subsequently, Mr. Henry successfully sued the province and other defendants for breaches of his Charter rights and was awarded $8.07 million in 2018. [5] In 2017, the five plaintiffs, who were five of the eight complainants in Mr. Henry's criminal trial, sued Mr. Henry civilly for the sexual assaults they say he committed. In her decision issued January 29, 2025, the trial judge found the claims proven on the civil standard of proof: 2025 BCSC 137 ("Decision"). She awarded general and aggravated damages of $375,000 to each plaintiff, a total of $1.875 million, but denied the claim for punitive damages. In the months since the Decision, Mr. Henry has not taken any steps to pay the award. [6] Mr. Henry has appealed the Decision. The plaintiffs (respondents) have cross-appealed the damages award. Law [7] Sections 30 and 33 of the Court of Appeal Act, S.B.C. 2021, c. 6

authorize a judge of this Court to grant a stay, including a stay of execution on terms and conditions the judge considers appropriate, including posting of security. [8] The test for a stay of execution is that set out in RJR‑MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at 334, 337. The applicant must demonstrate: 1) there is some merit to the appeal; (2) the applicant will suffer irreparable harm if the stay is refused; and (3) the balance of convenience favours the applicant in granting the stay. [9] The ultimate consideration is the interests of justice: Coburn v. Nagra, 2001 BCCA 607 at paras. 7, 9. [10] The merits threshold is low: a prolonged examination of the merits is generally unnecessary and undesirable: RJR at 338. Irreparable harm means harm that can neither be quantified in monetary terms nor cured, and refers to the nature, rather than the magnitude, of that harm: RJR at 341. The balance of convenience asks which party will suffer the greater harm in granting or refusing the stay: RJR at 342. Analysis Merit [11] In her affidavit, Marilyn Sandford K.C., counsel for Mr. Henry in the underlying proceedings, deposes that counsel for Mr. Henry in the appeal have identified some 12 potential grounds of appeal, relating to identification evidence, similar fact evidence, hearsay, prior findings of fact, the applicable burden of proof and the trial

judge's conclusion there was no abuse of process. [12] The respondents submit that there is no merit to any of these grounds because they conflate criminal proceedings with civil proceedings and because most challenge the trial judge's evidentiary and factual findings. [13] In my view, some of the proposed grounds of appeal satisfy the low merits threshold in a stay application. I find the appellant has met this requirement. Irreparable Harm [14] Mr. Henry submits that his financial circumstances are such that paying the award will leave him "homeless and penniless". He says, "[h]is very modest monthly stipend of $720 is insufficient to support even the most basic existence". He also says the respondents' modest means create a real risk he will not be able to recover the award if he is successful on appeal. [15] The adverse financial impact of a judgment debt does not generally amount to irreparable harm because it can be quantified in monetary terms and it can be cured. However, where it would result in an appellant losing their home or there is a real risk that, if the appeal is successful, the appellant will not be able to recover a large portion of the damages that have been paid, irreparable harm may be found: Dixon v. Morgan, 2020 BCCA 200 (Chambers) at para. 27; Bancroft-Wilson v. Murphy, 2008 BCCA 498 (Chambers) at para. 12. [16] Has the appellant demonstrated

irreparable harm in either sense? [17] In his affidavit of May 11, 2025, Mr. Henry deposes that he owns a home free of mortgage with an assessed value of $650,000. He has bank accounts and other liquid assets totalling approximately $272,000. He receives a monthly income of about $720 from OAS and CPP ($8,600 annually). His annual living expenses are $40,000. [18] With respect to his award of $8.07 million in Charter damages plus pre‑judgment interest, Mr. Henry deposes he received payments of approximately $1.5 million in November and in December 2015, $2.9 million in February 2017 and $8,500 in June 2018. This represents a total of just under $6 million. Mr. Henry submitted the balance of the award went to legal fees for the Charter damages proceeding. [19] Mr. Henry deposes that he gave away about $2.1 million as gifts and charitable donations. He says he has spent the remainder on living expenses. [20] Assuming that Mr. Henry purchased his home and cars out of the remainder of the Charter damages award, and his living expenses have remained relatively constant, at least $1.8 million remains unaccounted for based on his affidavit evidence. This is a substantial sum. [21] On May 5, 2025, the respondents examined Mr. Henry in aid of execution. His answers to questions about the monies he received from the Charter damages award are not consistent with what he deposed in his

affidavit. For example, he estimated that he had given about $3 million away by 2017. He also said that he had about $2 million and a house in 2024, but lost "millions of dollars" in defending the underlying action. [22] Bank statements confirm that relatively large sums of $100,000 or more were transferred into and out of Mr. Henry's Scotiabank Powerchequing account between June 2018 and May 2023. Mr. Henry was not able to explain where the money went. [23] It is certainly possible that Mr. Henry does not have sufficient assets to pay the damages award and, if required to do so, will lose his home. However, the inconsistencies between the answers he gave in examination and the information in his affidavit made under a week later, raise real questions about whether Mr. Henry has access to more funds than he claims. [24] Mr. Henry also argues that, if his appeal succeeds, he will not be able to recover damages he has paid out because of the respondents' financial circumstances. He has evidence that one resides outside Canada and a second is of modest means. Two others own property in BC in joint tenancy with their husbands that Mr. Henry characterizes as modest in value. He has no information about any other assets of these individuals and no information at all about the fifth respondent. Mr. Henry also says that a substantial portion of the damages award will likely go to legal

fees and will therefore not be recoverable. [25] In these circumstances, I agree with Mr. Henry that there is a real risk that he will suffer irreparable harm if a stay is not granted. Balance of Convenience [26] I have little difficulty concluding that the balance of convenience would favour granting a stay. It is very likely that the appeal will be heard in the fall and judgment will be rendered by the spring of 2026. While this delays the respondents' receipt of the fruits of their judgment, it is not inordinate given the length of the litigation. Interests of Justice [27] At the hearing, Mr. Henry proposed a stay that restricts the respondents from executing against his home and one of his vehicles, and would require him to post as security an amount equivalent to his other assets less his living expenses, which he said is roughly $230,000, between now and the conclusion of the appeal. The respondents agreed that they would not execute against his house or vehicle and that he should retain some money for living expenses. However, they want the money Mr. Henry has available to be paid to them. Most importantly, they want to be able to continue their ongoing efforts to locate and recover other funds or assets that Mr. Henry may not have disclosed. [28] In the unusual circumstances of this case, I conclude that the interests of justice do not favour granting a stay because the

potential harms can be adequately managed in other ways. According to Mr. Henry, he has no undisclosed funds or assets. As he said in his examination in aid of execution, "the money is gone". If that is correct, there is no risk to Mr. Henry because there is no prospect the respondents will be able to realize almost all of the damages award. If it turns out that Mr. Henry has other assets, he is at liberty to re-apply for a stay. [29] The respondents have agreed not to execute against Mr. Henry's house or vehicle and have consented to him retaining funds to cover his living expenses between now and the conclusion of the appeal. Mr. Henry has agreed to sell his second vehicle and to pay his remaining funds into court. [30] I consider it preferable to have Mr. Henry pay the funds into the trust account of counsel for the respondents. That will give the respondents some comfort and facilitate the payment out of those funds if the appeal is dismissed. The accrual of interest is also a consideration. [31] It remains to quantify the amount. Mr. Henry has liquid assets of roughly $272,000 and a pension income of $8,600. I consider it reasonable to set aside $40,000 for living expenses in the period before conclusion of the appeal in addition to his pension income. That leaves $232,000 to be paid into respondent counsel's trust account. Disposition [32] The application for a stay is denied. I make the following orders under s. 30 of the Court of Appeal Act pending determination of the appeal: 1. The respondents shall take no steps to execute against Mr. Henry's home or his vehicle.

2. Within 14 days of the date of this order, Mr. Henry shall pay the sum of $232,000 into the trust account of counsel for the respondents to be held in trust for them.

3. If further assets of Mr. Henry are located, he is at liberty to re-apply for a stay. "The Honourable Justice Iyer"