Executive Summary: Key Legal and Evidentiary Issues

• Stephen Kong sought a stay of a chambers judge's order dismissing his application to stay an order of possession arising from a settlement reached before the Residential Tenancy Branch.

• This marked the second time in two years that the appellant brought nearly identical stay applications before the Court of Appeal, having previously appeared before Justice Abrioux in July 2024.

• Under the three-part test from RJR-MacDonald, the Court found Mr. Kong failed to establish a serious issue to be tried, as his claim of "procedural pressure" did not undermine the validity of the settlement agreement.

• No evidence of irreparable harm was demonstrated, and the Court reiterated that a stay of the refusal order would have no bearing on the landlord's ability to enforce the order of possession.

• The balance of convenience did not favour allowing the appellant to resile from a settlement in which the landlord forgave two months' rent in exchange for vacant possession.

• Special costs of $3,000 were awarded against Mr. Kong, whose repeated applications were found to constitute conduct worthy of rebuke despite a prior warning from the Court.

The facts of the case
Stephen Kong was a residential tenant in a property owned by Siddoo Kashmir Holdings Ltd. in British Columbia. A dispute between the tenant and landlord was brought before the Residential Tenancy Branch ("RTB") for resolution. During the dispute resolution hearing, the parties reached a settlement agreement under which the respondent landlord agreed to forgo two months rent in exchange for Mr. Kong vacating the apartment by February 28. Mr. Kong did not pay rent but, rather than vacate, he sought to challenge the settlement and the resulting order of possession.

Prior proceedings in July 2024
This was not the first time Mr. Kong pursued such a course of action. In July 2024, following a similar RTB settlement, Mr. Kong appeared before Justice Abrioux at the Court of Appeal seeking to stay the order of a chambers judge dismissing his application to stay an order of possession pending judicial review. At that time, Mr. Kong alleged the settlement had been obtained by fraud and was unconscionable. Justice Abrioux dismissed that application, noting that a stay of the refusal order would have no bearing on the landlord's ability to enforce the order of possession. The Court cited Lee v. Wedekind, 2021 BCCA 372, in which Justice Stromberg-Stein described a similar strategy as "ill-conceived and based on her mistaken belief that a stay in this Court would achieve a stay of the order of possession in the underlying matter." Although special costs were sought by the landlord at that time, Justice Abrioux declined to award them but expressly warned Mr. Kong that the case was "very close to the line."

The current application before Justice Edelmann
In the present matter, Mr. Kong made an ex parte application before a Supreme Court chambers judge to stay the new order of possession, this time alleging that the settlement was obtained as a result of "procedural pressure." The chambers judge applied the three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney General), which requires an applicant to demonstrate: (1) a serious question to be tried; (2) irreparable harm if the stay is refused; and (3) that the balance of convenience favours granting the stay. The overarching consideration, as noted in Aulakh v. WIT Management Corp., 2022 BCCA 356, is whether the stay is in the interests of justice. The chambers judge was not persuaded on any of the three branches and dismissed Mr. Kong's application. Mr. Kong then sought to make an urgent stay application before the Court of Appeal, and the landlord became aware of the application the day before the hearing and filed responsive materials.

The applicable legal test for a stay
Justice Edelmann confirmed the governing framework under s. 33(1) of the Court of Appeal Act, S.B.C. 2021, c. 6, which empowers a justice to order a stay of proceedings on appropriate terms. Applying the RJR-MacDonald test, the Court found that Mr. Kong had not passed the low threshold for establishing a serious issue to be tried in relation to the validity of the order arising from the settlement agreement. As pointed out by the respondent, there was a risk in going ahead with the hearing, and Mr. Kong made a decision to accept a reduction of two months' rent, which he now sought to resile from. On the question of irreparable harm, Mr. Kong asserted that he was completing his doctoral dissertation and that moving would disrupt his ability to do so, but the Court was not persuaded this constituted irreparable harm. Most importantly, the Court reiterated the fundamental flaw in Mr. Kong's strategy: a stay of the order refusing to stay the order of possession would have no bearing on the landlord's ability to enforce the order of possession itself. The balance of convenience accordingly did not favour granting a stay of the order of possession.

The ruling and outcome
Justice Edelmann dismissed Mr. Kong's application, finding it was not in the interests of justice to make an order that would allow the appellant to resile from his settlement and that, in any event, would have no effect on his underlying situation. The Court noted that Mr. Kong is a PhD candidate and not unsophisticated, and that he clearly chose not to heed the warning given last time he put another party to unnecessary expense in this Court. Finding the appellant's conduct worthy of rebuke, the Court awarded special costs in the amount of $3,000 in favour of the successful party, Siddoo Kashmir Holdings Ltd.