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Stay granted against $800,000 court award

The Court of Appeal of Yukon has granted a stay against a Yukon Supreme Court decision against two Dawson City women.

By Gord Fortin on July 15, 2019

The Court of Appeal of Yukon has granted a stay against a Yukon Supreme Court decision against two Dawson City women.

Justice Barbara Fisher released her written decision June 28.

Susan Herrmann and Audrey Vigneau had filed the application to have an $800,000 decision against them set aside, pending the result of their upcoming appeal.

The Supreme Court had determined that both women had defamed Angela and Michael Senft when the couple lived in Dawson.

The defamation resulted from social media posts and a document put in Dawson mailboxes sometime in 2017, the court found.

The defamation centred on the falling-out between the Senfts and Daniele McRae, a senior living in Dawson.

Angela was an executrix in McRae’s will, and Michael was an alternate.

The Senfts were also listed as joint tenants on McRae’s property.

The posts painted a negative image about this arrangement.

Fisher granted application with conditions.

For Vigneau, the stay was allowed, but the Senfts are allowed to file a certificate of judgment against a part of her property. The Senfts are statutorily not allowed to execute on this certificate for one year.

In Herrmann’s case, the stay was granted provided she posts the entire amount of her share of the judgment, $453,796, in security to the court by Sept. 3.

Legal costs are not included. She can apply for more time if needed.

Fisher gave her reasons for granting the stay.

Herrmann said she does have some money, vehicles and an RV, totalling an estimated $94,000.

She owns a stake in a couple of businesses.

She has a 51 per cent stake in Dawson Hardware Ltd., which owns the local Home Hardware store. She also owns a 90 per cent stake in the Monte Carlo Ltd.

This is a holding company, which owns properties. Herrmann’s daughter owns the remaining 10 per cent of Monte Carlo.

This includes Herrmann’s residence and a laundromat. The value is estimated to be $410,000.

Herrmann argued that if she was denied the stay, her shares in the two companies could be seized to cover the judgment. She explained that she would lose her income if the hardware store closed, and the employees would lose their jobs.

The Monte Carlo holds the funds for her retirement.

“She says that the seizure of their shares would occasion irremediable harm, as the respondents (the Senfts) may cause the hardware store to close, or the Monte Carlo to be disposed of,” Fisher said in the decision.

Vigneau’s share of the judgment owing is $396,689.

Her home is valued at about $325,000. That said, she has a collateral mortgage against it which serves as a line of credit for her.

She has two vehicles valued together at $12,000 and an RRSP worth $110,000.

She owes $46,000 to creditors, the bank and lawyers.

Fisher explained that she does have the power to grant the stay pending appeal as per Section 13 of the Yukon Court of Appeal Act. There are conditions to be met.

The appeal must have some merit. There must be some irreparable harm on the applicant if there is no stay.

The inconvenience must be greater on the applicant, if the stay was refused, than on the respondent if the stay was allowed.

Fisher pointed out that a security for costs could be ordered. This would help find the balance between both sides. She explained that the full amount of the order does not necessarily need to be put into security.

The Senfts argued that the appeal does not have any merit, and thus there should be no stay. They add that there would not be irreparable harm caused by seizing Herrmann’s shares because the full amount would not be secured.

Fisher evaluated whether the three conditions were met.

Herrmann and Vigneau said there is merit. They argue that the trial judge made an error when instructing the jury on malice. They felt the trial judge did not properly assess if there was enough evidence to show a probability of malice.

The Senfts argue that this is irrelevant because the jury gave a unanimous verdict that is entitled to deference. They point out that neither Herrmann’s or Vigneau’s counsel objected to the trial judge’s jury instructions. They feel the probability of malice was satisfied.

Fisher agreed that the jury’s finding of facts is entitled to deference but there is still an error in law that has been raised.

She explained that the fact that there were no objections at trial will be relevant to the appeal but not necessarily fatal.

“In my view, the appellants have an arguable case of sufficient merit,” Fisher said in the decision.

She felt the argument on malice should be put before the court and judged on its merits.

“It is not possible for me to do that in the context of this application,” Fisher said in the decision.

She now moved to irreparable harm.

She pointed out that Herrmann was willing to offer a security to the Senfts, with Herrmann charging it to the laundromat property. This would secure most of her share of the judgment.

Vigneau offered to file an undertaking in court. This would guarantee that she can’t transfer any of her assets until three months after the appeal decision.

The Senfts argued that the seizure of shares would not prevent the hardware store from doing business. They added that the charge on the laundromat property would not prevent it from being sold.

They argued that Vigneau would not suffer from her house being seized since it can’t be sold for a year.

Fisher concluded there was a case for irreparable harm. She felt the seizing of Herrmann’s shares could cause trouble for her businesses.

Vigneau, meanwhile, could end up with nothing, the judge noted.

“In my view, the appellants have satisfied me that they will suffer irreparable harm,” Fisher said in the decision.

She now had to determine the balance.

Herrmann and Vigneau expressed concern over being able to recover any money paid if they win the appeal.

The Senfts felt they would be deprived of their judgment. They added the stay could cause them harm if either Herrmann or Vigneau declare bankruptcy or die before the appeal is heard.

Fisher concluded the balance favours Herrmann and Vigneau, if a security for costs was submitted. She felt the harm caused to them could not be quantified.

“I do not consider that depriving the respondents of the fruits of their judgment at this time will cause irreparable harm, as the judgment is quantified in monetary terms and they will be entitled interest on that amount if the appeal is dismissed,” Fisher said in the decision.

Normally, she said, the full amount would be put into a security, but a judge has discretion.

She said the case is unique, noting the Senfts have not indicated that the judgment is needed for a specific purpose.

“I consider the granting of a stay, condition on security to be provided, to be in the interest of justice,” Fisher said in the decision.

Comments (13)

Up 1 Down 0

Yukonmax on Jul 22, 2019 at 6:51 am

I know the people involved on all sides. No doubt in my mind that the Senfts did not use their best judgement in entering in an agreement of such with a woman who's abilities to mend her own affairs were impaired by the loss of her husband and her poor health. Danielle was VULNERABLE.
Did the Senfts pass the "vulnerable sector" check???

Up 11 Down 1

Yukoner on Jul 20, 2019 at 10:17 am

Like others here I question how a government worker, "caring" for someone can even legally inherit. Considered they (Gov workers) are not even allowed to officially accept a cup of coffee or other presents. This case boggles my mind.

Up 10 Down 2

Seth Wright on Jul 19, 2019 at 12:14 pm

@ Bandit - Someone in a position of power and trust... Yes... The government is just such a creature and yet elusively unaccountable... YG sets the rules, breaks the rules and then redefines the rules so as to make a mockery of them... Meanwhile...

Up 8 Down 2

CJ on Jul 18, 2019 at 11:10 pm

I don't get the judgement at all. I can't remember the details now of what they said or how it was circulated, but how many judgements lead to financial ruin? Everything is so much more consequential now because of social media, but why does Facebook and Twitter get off scot free, while the judicial system attempts to make examples of people like these two? Why isn't mediation an appropriate avenue in a case like this?

Up 8 Down 6

Bandit on Jul 18, 2019 at 3:33 pm

@ Seth Wright
This is entirely a civil matter otherwise YG would have been named in the suit. But to address your comment re: one of the Senfts being a Social worker in Dawson City is concerning enough... No Sh#t Sherlock, It seems to me that a Senior was taken advantage of by someone in a power/confidence/trust position. If it walks like a Duck, Quacks like a Duck...

Up 17 Down 4

Seth Wright on Jul 18, 2019 at 1:01 pm

Actually YG is connected to this story... One of the Senft’s was a Social Worker in Dawson City were this affair took place. That in itself should be concerning enough.
However, you and Bandit have been well indoctrinated in the belief of compartmentalization... It is absolutely an issue that can be applied to YG.

JJ - We seem to saying the same thing in a different way. I said that the further up the chain you go the easier it should be to sue Sandy, Pauline and Tracy etc. Unfortunately we cannot because the idea that the politicians work for us is a foolish, romantic notion that we accept blindly for the convenience of being able - Not my fault that things are so f*#%?!-up.

The idea of benevolent frontline workers doing there best in an oppressive system - Sure, another part of the romanticism I suppose not borne out on examination of the actuality...

Sure, we may like some but that is not the same as doing. This is quite a common delusion in human cognition, the substitution of liking, of feeling, for concrete evidence. This is the terror of YG... That perception, liking, and team (sic) are substitutes afforded primacy over reality, over evidence etc. This is unethical but it is also politics - Gonna vote you off the island because “we” do not like you... You’re different... You do not think like us... Off with your head...

So, for clarity, and with certainty! It is a YG issue, especially seeing as how, YG sets the rules governing civil matters... Seems a little ironic... Don’t you think... Isn’t it ironic...

Up 10 Down 6

Juniper Jackson on Jul 17, 2019 at 6:03 pm

Seth Wright: : I was commenting on the amount of the judgement.

I totally agree that people should be held accountable. Though this is not a YTG matter but a personal liability suit, you commented on YTG. And now I want to too.

The people I deal with are, shall we say.. the grunts...(it's an armed forces term for the people that do the work) are amazing. They have to do their jobs within the legislated parameters.. That we only get $75.00 a day for a $200. a day travel..not their fault.. that there are potholes big enough to rent out to a family of 4..not the road people's fault.. that justice is a joke..again..not the clerks fault.. THOSE are the people most of us deal with. I've never had a Director or a Manager come out and say.. can I help you? My opinion? Before we go after the people administering the rules, go after the people making the rules.. I know that's hard because Sandy, Pauline, Tracy, they don't take calls, answer emails, or apparently open hand delivered letters. I look from the outside in.. it's probably a much different view if you are all on the inside talking about coworkers?

Meanwhile.. I can not thank those front line people enough for the kind, efficient service I have received from them.

Up 12 Down 10

steve on Jul 17, 2019 at 2:10 pm

People wake up. It's one thing to defame someone to another person as it is limited in who knows. The minute you post on social media this can go viral to untold amounts of people. People need to wake up to the fact if you use social media to defame someone the cost is going to be much higher as you reach a far greater number of people. This should be a lesson to others to watch what you say, to whom and in what media you use.

Up 15 Down 19

Bandit on Jul 17, 2019 at 12:45 pm

@Seth Wright.
A former (disgruntled) YTG Millennial employee maybe someone hurt your feelings? This is a civil matter and has nothing to do with YTG.

Up 24 Down 4

Disgusted on Jul 16, 2019 at 11:14 pm

I hope they win their appeal. This is grotesque and unjust. I read the details of what went on, and although these two may have gone too far in warning the community about the Senfts, there was certainly a lot that did not pass the smell test. Hopefully a new judge will adjust this judgement dramatically.

Up 24 Down 9

Seth Wright on Jul 16, 2019 at 9:39 pm

How do you mean that Juniper?

1) The dollar amount?
2) The number of judges and courts involved?
Or, 3) A particular Judges demeanour?

I think that we should be tougher on people who say and do things that cause harm to others. There should be greater ability to sue YG employees for their conduct on the job and the ease should be greater the further up the chain you go.

Then see how soon YG becomes a respectful workplace.

Up 28 Down 4

Guncache on Jul 16, 2019 at 5:27 pm

That is an unreasonable amount to levy against average people. Some conglomerates get less amounts levied against them. The accused might deserve some monetary punishment but it should be affordable

Up 33 Down 6

Juniper Jackson on Jul 15, 2019 at 6:55 pm

This is a ridiculous amount of judgement. How did the United States get in here so quick...

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