Case: Jadhav v Kielly, 2018 NLCA 50 (CanLII)
Keywords: MVA; Temporary Foreign Workers; Rule 42 of the Court of Appeal Rules, NLR 38/16; Weir’s Construction Limited v. Warford Estate, 2016 NLCA 65 (CanLII)
It is a dark and stormy night. Mr. Prashant Jadhav, dressed entirely in black, is walking on the right side of an unlit road. He is struck by Mr. David Kielly’s vehicle. At trial, the issue is Mr. Kielly’s liability for the MVA and assessment of damages. At the time of the accident, Mr. Jadhav is a temporary foreign worker who, as a result of his injuries, is unable to return to his work as a cook at Burger King.
The Trial Judge determines Mr. Jadhav is 10% at fault due to his traversing on the wrong side of the road wearing dark clothing. The total award of damages is $338,097.19. Mr. Jadhav appeals as against portions of the award of damages. Mr. Kielly cross-appeals against the finding of liability. This case is an application by Mr. Kielly to stay the enforcement of the order for the payment of damages pursuant to Rule 42 of the Court of Appeal Rules, NLR 38/16. The Court of Appeal is satisfied that a stay of enforcement is warranted.
As per Weir’s Construction Limited v. Warford Estate, 2016 NLCA 65 (CanLII) the test for granting a stay of enforcement of an order pending disposition of an appeal requires a court to consider:
- whether there is a serious issue to be argued on appeal;
- whether the applicant for the stay will suffer irreparable harm if the stay is not granted (the nature of the harm, rather than its magnitude, is to be considered); and
- the balance of inconvenience for the parties. (See para. 3).
Without commenting on the likely success of the appeal, the Court of Appeal found a serious issue to be argued on the appeal, “…in the sense contemplated by the first prong of the test.” (See para. 8). Mr. Jadhav conceded the second prong of the test:
He accepts that, because he is impecunious and does not have the legal status in Canada to obtain work, the risk that any money paid to him could not be recovered is sufficient justification on which to conclude that Mr. Kielly would suffer irreparable harm should the cross-appeal succeed and a stay of enforcement of the order not be granted. (See para. 4).
With respect to the balance of inconvenience for the parties, in the event Mr. Jadhav left (and, as the Trial Judge noted, there were strong indications he would not remain) the risk would be that the money payable under the order would not be recoverable if Mr. Kielly’s cross-appeal was successful. The Court was satisfied that the balance of inconvenience favoured Mr. Kielly. (See paras. 11-14).
To “accommodate” Mr. Kielly’s concerns, the Court of Appeal took the “rare” step of separating the cross-appeal as to Mr. Kielly’s liability in negligence from Mr. Jadhav’s appeal as to the award of damages. (See para. 16). For the Court of Appeal, the risks of non-recovery outweighed any delays associated with the special accommodation of the cross-appeal:
Considering the delay of almost five years from the time of the accident to a decision at trial, a further moderate delay occasioned by the cross-appeal would not be unreasonable particularly when balanced against the significant risk that any money paid out would likely not be recoverable. (See para. 17).
The decision of the Court of Appeal is significant because it demonstrates a “rare” means by which courts can both intervene to re-balance the inconvenience for the parties and shield litigants from irreparable harm resulting from the enforcement of an order.
Counsel for the Respondent to the Application: Philip Buckingham (Goodland Buckingham, St. John’s)
Counsel for the Applicant: Peter Shea (Intact Insurance, St. John’s)