All About Estates

Chapter Two in the Family Farm Saga

The case of John the Farmer (which I had previously blogged about) is now under appeal. John  is seeking to overturn the ruling that he had to vacate the family farm so it could be sold on the open market. A judge rejected John’s request to stay the lower court’s order until the Court of Appeal could weigh in.

The Court of Appeal will hear this matter on July 20, 2018. In the meantime, pursuant to the application judge’s order, the estate trustees (the testator at issue had owned the family farm) sought vacant possession of the farm from John so it could be sold. John returned to court to seek a stay.

The test for granting a stay pursuant to subrule 63.02(1) of the Rules of Civil Procedure is the same as for an injunction:

(a)   there is a serious issue to be tried;

(b)   the party seeking the stay will suffer irreparable harm if the stay is not imposed; and

(c)   the balance of convenience favours granting the stay.

For the first prong of the test, Justice Mitchell confirmed that the issue was whether there was any merit to the appeal. However, her Honour found that she could not assess whether there was merit because the notice of appeal had not been filed as part of the evidentiary record on the motion. While the notice of appeal was passed up to her Honour during argument, she was not provided with any evidence or case law which would allow her to assess the merits of the appeal.

As an order under appeal is presumed to be correct until shown otherwise, Justice Mitchell held that John had failed to meet the test. While this disposed of the stay request, her Honour considered the other two prongs of the test for completeness.

On the second prong of the test, Justice Mitchell found that there was no irreparable harm to John: there was no evidence that other farm land was unavailable to meet John’s farming needs if the farm was sold. A law clerk, not John, put in an affidavit which simply stated that she was advised by John that he would suffer irreparable harm if the farm was sold.

Finally, the balance of convenience supported a sale – the testator had wanted the farm sold in a timely manner if it was not sold to one of her children. It had been five years since her death, in direct contravention of her wishes (which the judge held should be “paramount”).

As such, Justice Mitchell rejected the request for a stay; but did allow John access to the farm to harvest the crops he had planted (subject to paying his outstanding rental arrears).

This case demonstrates the importance of putting forward a complete evidentiary record. Aside from the absence of the notice of appeal, the judge was looking for compelling evidence from John that this farm – not just any farm – was needed.

About Jacob Kaufman
Jacob Kaufman is a lawyer with de VRIES LITIGATION LLP. Jacob assists clients with will challenges, dependant support claims, guardianship applications, power of attorney disputes and other estate and trust litigation matters. He has appeared before various levels of court, including the Superior Court of Justice and the Court of Appeal for Ontario. Jacob obtained his law degree from the University of Western Ontario (with distinction) after completing an Honours Bachelor of Arts degree from Queen’s University in history (with distinction). He has written articles for the International Law Office, Legal Alert and the OBA’s Deadbeat. Email:


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