Churchill v. Unifund Assurance Company
The Court granted the stay because the proposed leave issue was not frivolous, the applicant would suffer irreparable harm if compelled to disclose (disclosure cannot be retracted and would render the appeal nugatory), and the balance of convenience favored the applicant since the respondent's harm was limited to...
Source-derived case information.
- Citation
- 2017 NLCA 4
- Parties
- Applicant: John Churchill; Respondent: Unifund Assurance Company
- Court
- Newfoundland and Labrador Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 26 January 2017
- Procedural Posture
- Appeal / Stay Application Pending Leave to Appeal to the Supreme Court of Canada
- Outcome
- Stay granted
- Legal Topics
- Stay of Proceedings, Litigation Privilege, Implied Undertaking Rule, Rules of Court Authority, RJR Mac Donald Test
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Churchill
Applicant
Unifund Assurance Company
Respondent
Procedural Posture
Appeal / Stay Application Pending Leave to Appeal to the Supreme Court of Canada
Legal Issues
- 1 Whether the Rules of the Supreme Court, 1986 (S.N.L. 1986, c. 42, Schedule D) have legislative authority to override common law litigation privilege and the implied undertaking rule
- 2 Whether a stay of the Court of Appeal's January 17, 2017 order should be granted under the RJR MacDonald stay test
Ratio Decidendi
The Court granted the stay because the proposed leave issue was not frivolous, the applicant would suffer irreparable harm if compelled to disclose (disclosure cannot be retracted and would render the appeal nugatory), and the balance of convenience favored the applicant since the respondent's harm was limited to delay and costs which could be remedied; accordingly the stay of the January 17, 2017 order was warranted pending the outcome of the leave application or appeal.
Court Disposition
Stay granted
Orders
- Stay granted of the Court's January 17, 2017 order requiring listing of documents, answers to Interrogatories and production of medical reports pending the outcome of the applicant's application for leave to appeal to the Supreme Court of Canada or, if leave is granted, pending the appeal
- No order as to costs
Full Case Text
Judgment text and source record
1 paragraphs
IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL Citation: Churchill v. Unifund Assurance Company, 2017 NLCA 4 Date: 20170126 Docket: 201601H0029 BETWEEN: JOHN CHURCHILL APPLICANT AND: UNIFUND ASSURANCE COMPANY UNIFUND, COMPAGNIE D’ASSURANCE RESPONDENT Coram: Hoegg, J.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201501G2073 Appeal Heard: January 24, 2017 Judgment Rendered: January 26, 2017 Reasons for Judgment: Hoegg J.A. Counsel for the Applicant: E. Mark Rogers Counsel for the Respondent: Megan C. Taylor 2 MEMORANDUM OF DISPOSITION Hoegg J.A.: By order of this Court dated January 17, 2017, John Churchill is required to list documents and answer Interrogatories pertaining to the within litigation and to produce any medical reports referenced in the Interrogatories. Mr. Churchill seeks a stay of that Order pending the outcome of his application for leave to appeal to the Supreme Court of Canada, or if leave is granted, the outcome of his appeal. Unifund does not strongly oppose Mr. Churchill’s application. Section 65.1 of the Supreme Court Act, R.S.C. 1985, c. S-26 permits a Judge of the Court of Appeal to stay an order of the Court pending a leave application to the Supreme Court of Canada. The well-established test for staying a court order is set out in RJR McDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. The following considerations pertain: (i) Is there a serious issue to be tried? A serious issue in this context means an issue that is not frivolous or vexatious. (ii) Would the litigant seeking a stay be irreparably harmed if the stay is not granted? and (iii) The balance of convenience as between the litigants. The Applicant identifies the main issue on the application for leave to appeal as whether the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Schedule D have the legislative authority to override the common law respecting litigation privilege and the operation of the implied undertaking rule. This issue is neither frivolous nor vexatious, and is therefore a serious one to be tried. I am of the view that Mr. Churchill will suffer irreparable harm if he must comply with the terms of this Court’s order pending appeal. Once information is disclosed, it cannot be retracted; compliance with the Order would render his appeal nugatory. Unifund agrees. Moreover, Mr. Churchill’s case at the trial from which this appeal arises may be irreparably damaged by the disclosure of the information. 3 The balance of convenience in this application clearly favors Mr. Churchill. The harm to Unifund by granting the stay is delay and the associated cost of handling an open file, which inconvenience is really the cost of doing business for Unifund, and may be able to be remedied through a costs order should Unifund’s position ultimately prevail. By contrast, if Mr. Churchill complies with this Court’s order and his appeal to the Supreme Court of Canada is successful, the harm to him cannot be undone. Accordingly, a stay is granted. I make no order as to costs. ____________________________________ L. R. Hoegg J.A.