Antunes v. Limen Structures Ltd.: Court of Appeal Lifts Stay

You may recall the exciting case of Antunes v. Limen Structures Ltd. from a few months back, where a five-month employee received 8 months pay in lieu of notice (over $105,000), plus an additional half million dollars in damages, and costs and interest totalling over $40,000.

Limen filed a notice of appeal in respect of the additional half million, but did not initially appeal the other aspects of the judgment.  Filing the notice of appeal has the impact of generating an automatic 'stay' of the judgment, preventing the plaintiff from trying to enforce the judgment until the appeal has run its course.  This applies, by default, to the whole judgment - even the $145,000 of the judgment debt not being appealed.

Antunes brought a motion to lift the stay, in relation to all but the half million dollar award, to allow him to collect the uncontested part of the judgment.  Limen's response was to file a supplementary notice of appeal, appealing the rest, too.

The stay is rather concerning to Antunes, because Limen claims to be insolvent - and as time passes, recovery of the debt will likely become increasingly difficult.  Antunes continued the motion, arguing that the Court of Appeal should exercise its discretion to lift the stay, because the supplementary notice of appeal was a tenuous appeal solely for the purpose of delaying payment.

The Court recognized Limen's claim to be unability to pay the judgment, but appeared to doubt the bona fides of that claim:

The appellant has managed its affairs in such a way as to minimize its exposure to Mr. Antunes.  I accept that businesses can find themselves in financial difficulty for many reasons having nothing to do with the wrongful dismissal claim of a former employee.  But I take into account the "scorched earth" trial and appeal tactics taken by the appellant.

Limen contended that, if it paid the judgment and then won on the appeal, Antunes likely wouldn't be able to repay the employer.  Antunes' response was that he would be satisfied to have the funds held by his lawyer in trust pending disposition of the appeal - a fair resolution to concerns of uncertainty.

The Court lifted the stay, and didn't order any such trust:  The appeal itself (as it related to the wrongful dismissal) was weak on its face, and Antunes' financial hardship made it desirable for the Court to exercise its discretion.

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The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.