Yukon (Government of) v. Norcope Enterprises Ltd.

Yukon (Government of) v. Norcope Enterprises Ltd.

The applications were granted: execution of the trial judgment is stayed pending appeal on terms that Norcope grant security by not encumbering and by perfecting a security interest in specified unencumbered pieces of equipment and by proceeding with the appeal without undue delay, with Yukon entitled to apply to...

Source-derived case information.

Citation
2023 YKCA 7
Parties
Respondent/plaintiff: Government of Yukon; Appellant/respondent by Cross Appeal (defendant): Norcope Enterprises Ltd.; Respondent/appellant by Cross Appeal (defendant): Intact Insurance Company; Respondent (third Party): Tetra Tech EBA Inc.; Further Third Party (respondent): Norcon Concrete Products Inc.; Further Third Party (respondent): Yucal Properties Inc.; Further Third Party (respondent): Douglas L. Gonder
Court
Yukon Court of Appeal
Jurisdiction
Canada
Judgment Date
9 August 2023
Procedural Posture
Civil Appeal From Trial Judgment / Chambers Application for Stay of Execution Pending Appeal and Sealing Order
Outcome
Applications for stay of execution and for a sealing order granted with conditions
Legal Topics
Stay of Execution, Security for Judgment, Apportionment of Liability, Performance Bond, Sealing Order, Irreparable Harm, Balance of Convenience, Onus of Proof, Waiver/warranty Letter, Jurisdiction to Seal
Source Language
english
Civil Contract Appeal Insurance Confidentiality Stay of Execution Security for Judgment Apportionment of Liability +7 more

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Parties

Government of Yukon

Respondent/plaintiff

Norcope Enterprises Ltd.

Appellant/respondent by Cross Appeal (defendant)

Intact Insurance Company

Respondent/appellant by Cross Appeal (defendant)

Tetra Tech EBA Inc.

Respondent (third Party)

Norcon Concrete Products Inc.

Further Third Party (respondent)

Yucal Properties Inc.

Further Third Party (respondent)

Douglas L. Gonder

Further Third Party (respondent)

Procedural Posture

Civil Appeal From Trial Judgment / Chambers Application for Stay of Execution Pending Appeal and Sealing Order

Legal Issues

  1. 1 Whether there is a serious issue on appeal with respect to the trial judge's treatment of onus and the waiver/warranty letter
  2. 2 Whether Norcope would suffer irreparable harm absent a stay
  3. 3 Whether the balance of convenience favours a stay and what security is appropriate

Ratio Decidendi

The applications were granted: execution of the trial judgment is stayed pending appeal on terms that Norcope grant security by not encumbering and by perfecting a security interest in specified unencumbered pieces of equipment and by proceeding with the appeal without undue delay, with Yukon entitled to apply to vary or set aside the stay if the appeal is not heard by November 2023; the affidavit of D.L. Gonder containing confidential financial information is sealed because disclosure would pose a serious risk to a commercial interest and no reasonable alternatives suffice, subject to limited disclosure to identify the unencumbered equipment.

Court Disposition

Applications for stay of execution and for a sealing order granted with conditions

Orders

  • Execution of the trial judgment stayed pending appeal or further order
  • Norcope shall not encumber the identified unencumbered pieces of equipment pending disposition of the appeal and shall execute documents reasonably requested by Yukon to perfect the security