SALTZER & PACEK (No.3)

The applicant, Mr. Saltzer, sought a stay of orders pending an appeal, specifically to prevent the respondent, Ms. Pacek, in her capacity as director of a company, from executing a contract for the sale of land. The substantive basis for the application was Mr. Saltzer's desire to delay the sale until discovery was complete, despite acknowledging Ms. Pacek's legal entitlement to enter into the contract. The matter came before A. Kelly J.

The court was required to determine whether to grant a stay of the orders permitting the sale of the land pending the outcome of Mr. Saltzer's appeal. This involved considering the applicable principles for granting a stay, including whether the appeal would be rendered nugatory, the merit of the proposed grounds of appeal, and discretionary considerations such as the bona fides of the applicant and the likelihood of the appeal being heard expeditiously.

A. Kelly J reasoned that the applicant had not established a serious question to be tried, nor did the balance of convenience favour the grant of a stay. The court noted that no case had been advanced that Ms. Pacek was acting in breach of her directors' duties, that the company was a trustee, that Ms. Pacek was acting oppressively as a shareholder, or that assets were being wasted or dissipated. While the respondent proposed to retain the net proceeds of sale in a controlled monies account, this did not outweigh the lack of a serious question to be tried. However, the court ultimately granted the application for a stay pending appeal, conditional upon Mr. Saltzer providing undertakings to pursue the appeal with all due diligence and that the application was bona fide.