Supreme Court

IN THE TERRITORIAL COURT OF THE NORTHWEST TEllRITORIES

IN THE I>1ATTER OF t h e M u n i c i p a l O r d i n a n c e , b e i n g C h . 7 3 , R . O . N . W . T . , 1 9 5 6 , a n d Amendmen t s t h e r e t o ; and IN THE MATTER OF DONALD M. STEWART BETWEEN JOHN D. R. TAYLOR, MIKE FEDORUS, CECIL ROGERS and PHILLIP D'AOUST,

- and -DONALD M. STEWART,

ORAL JUDGMENT of The Honourable Mr. Justice W, G. Mori'ow

This came before me today as an application firstly for a stay of execution under Rule 610 and secondly for an application to extend the time for the effect of my judgment. Mr. Shandling, solicitor for the Town of Hay River was granted leave by me to appear on behalf of the Town because the effect of this application may have a bearing on what advice he has to give to his client, neither Mr. Bowen nor Mr. Owen made any objection to his appearance. I should also say that Mr. Owen agreed that he was waiving !• any argument that I as the Judge of the Territorial Court of the Northwest Territories may not have the right to hear

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P e t i t i o n e r s Respondent

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- 2 - . this application in Edmonton, outside of the Territories. He did however say and did take the position that insofar as the second application was concerned, namely one to extend the time for the effect of my judgment, he considered that although I could hear the application in Edmonton rather than somewhere in the Northwest Territories, that nonetheless he took the position, and he did argue later that I was functus and I could not act even in the Territories. On the basis of the above agreement therefore I proceeded to hear argument from all counsel, taking the second application first, namely the application to extend the time for the relief against forfeiture as set out in my judgment. It is agreed that the formal judgment was entered on the 17th of January, 1967. It is also agreed that for purposes of appeal that the 6th of February represents the thirty days from the date of taxation of the costs. It is agreed that the Notice of Appeal was filed on the 3rd of February, 1967 and was served on petitioners* counsel on the 8th of February, 1967. I am disturbed about my right to make any change «

in the wording or terms of my judgment, in view of the fact that the judgment has been entered. I think that had the application been made before entry I may have had the right to vary the terms of my judgment. If granting a stay in \

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.̂ - 3 ­this respect would require me to change the terms of my judgment I consider I have no power to do so, and I agree with Mr. Owen's argument in this respect that insofar as the second application is concerned I am functus. As to the effect of my ruling that will have to remain for the Court of Appeal to decide. As to the application for a stay of execu-tion, I am aware of the two basic principles as I understand them dealing with the Courts* interpretation of action under our Rule 610, that is that the Court should not follow a practice of depriving a successful litigant of the fruits of his victory. Such cases as Monk v. Bartram (l89l) 1 Q.B. page 346 discusses this principle. Similarly I am aware of the fact that the Court ft should not put a successful appellant, if successful, in the position where his success is worthless and here I have read such cases as Wilson v. Church,12 Chancery Division, 45 8. In exercising my discretion under this rule and under the above cases I am satisfied that a stay of execution should be granted, and I so direct. I am however going to make certain conditions with respect to the Ranting of this stay. The first is that it must be understood that it is open to counsel for the petitioners at the appeal to raise any argument open to him and in fact I doubt if I

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- 4 ­would have any authority to prevent this in any event as to whether the granting of a stay by me can in any way change the effect of the permission by the petitioners to let the thirty days' period expire without the payment of the costs. In other words it will be up to the appellant's counsel to tackle this problem and establish whether the mere fact that I am granting a stay of execution under Rule 610 can in any way prevent the automatic effect of my judg­ment . In this respect I have before me the unreported judg­ment of the learned Chief Justice of the Province of Alberta in the Queen v. William Havv-relak, dated March the 12th, 1965, although I have in effect differed from the learned Chief Justice I have done so in all humility and for the reasons that I believe that by.my giving a relief against forfeiture in my judgment las made circumstances in the preseAt case sufficiently different from the Hawrelak case to permit me to exercise my discretion and grant a stay. The second condition of my stay is that counsel for the appellant shall be required to make application to the Court of Appeal at some time before the 14th of April, «

1967 to extend the stay, as I am taking the position that that is the farthest that I will grant a stay; and further, this is a part of the condition , that until such time as counsel for the appellant has applied as required under this condition his client, the appellant, shall not sit or take

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fs - 5 ­an active part as Mayor, and this includes debate although he may sit in at Council Meetings. I award the respondent costs in the sum of $140.00 plus any disbursements, said costs to be payable by four o'clock on February the 28th, 1967, and the payment of costs for this application shall not be stayed. « i EDMONTON, A l b e r t a , 20 February 1967 •! FHP cs/5

P. M. Owen, Esq., Q.C., For "the Petitioners.

ft D. H. Bowen, Esq., Q.C., For the Respondent.

H. I . S h a n d l i n g , E s q . , Fo r t h e Town of Hay R i v e r

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