Key Points:

• Background:
  • The appellants (Nutrition Guidance Services Inc., Dr. Earl Schwartz, Rosie Schwartz, Dr. Earl Schwartz Professional Corporation) own 75% of a commercial property in Toronto; the respondents own 25%.
  • The appellants sought to buy out the respondents under the Partnerships Act.
  • The respondents (Dr. Martin Schwartz, Susan Schwartz) counter-claimed for a sale under the Partition Act.
  • The lower court granted the respondents the right to sell the property at its highest market value within 90 days.
• Motion for Stay Pending Appeal:
  • The appellants requested a stay of the sale order pending their appeal.
• Test for Granting a Stay:
  • The court applied the test from RJR-MacDonald Inc. v. Canada:
    1. Merits of the Appeal: The appeal is not frivolous and has a reasonable prospect of success.
    2. Irreparable Harm: Appellants could face irreparable harm if the stay is not granted, including the risk of the appeal becoming moot if the property is sold.
    3. Balance of Convenience: The potential harm to the appellants outweighs the inconvenience to the respondents.
• Court's Decision:
  • The motion for a stay was granted, allowing the appellants to maintain their appeal rights without the property being sold immediately.
  • The appellants were awarded $12,000 in costs for the motion.