Photo by Whitehorse Star
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.
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