Background
Jennifer Shannon Schwitzer and Jillian Irene Little entered a venture to purchase two Okanagan properties, known as Breeze and Longacre, for short-term rentals. After their relationship broke down, Schwitzer claimed an ownership interest in the company and properties, or alternatively compensation for her contributions. Following a 19-day trial, the Supreme Court of British Columbia rejected her property claim but awarded her $38,431 for funds and services. After offsets for Little’s successful defamation counterclaim and reimbursement claims, the respondents were ordered to pay Schwitzer $724, and the court-directed funds from the sale of Breeze were ordered released to Little.
Schwitzer appealed and initially obtained a stay preventing release of the Breeze proceeds and the sale or encumbrance of Longacre. After she committed through counsel to pursue a narrower appeal that omitted her property claims, a chambers justice set aside that stay on May 7, 2026. A later attempt to revive the broader appeal was held to be an abuse of process. Schwitzer then sought an interim stay pending applications to a division of the Court of Appeal to vary the May 7 and subsequent June 22 orders. By the time the interim-stay application was heard, the Breeze proceeds had already been released to Little.
The Court’s Holding
Justice Brundrett, sitting in chambers, dismissed the application. Because the trial judgment directing release of the Breeze proceeds had already been executed, there was nothing left for a stay to suspend. The ancillary powers accompanying a stay did not authorize an order requiring Little to repay the released proceeds into court, and the requested repayment would effectively provide Schwitzer with security for the judgment she had sought at trial.
Although Schwitzer’s proposed challenge to the May 7 order raised a serious question, she did not establish irreparable harm sufficient to restore the prohibition against selling or encumbering Longacre. There was no indication that Longacre was for sale, and any successful claim could likely be quantified in monetary terms. The court also found that Schwitzer faced an uphill battle in reviving and succeeding on her property claims, while renewed restrictions could harm Little given her financial circumstances and the property’s carrying costs. The balance of convenience and the interests of justice therefore favoured refusing the interim stay.
Key Takeaways
- A stay ordinarily cannot stop the operation of a judgment after that judgment has already been executed.
- The statutory power to impose ancillary terms in support of a stay did not permit the court, on this application, to order released funds repaid into court as security for a hoped-for appellate recovery.
- A possible sale of property does not establish irreparable harm where no sale appears imminent and the applicant’s potential loss can likely be compensated with money.
Why It Matters
The decision underscores the practical importance of obtaining interim relief before a judgment is executed. Once funds have been released under a judgment, an application framed merely as a stay may be ineffective and cannot necessarily be converted into an order requiring repayment as appellate security.
It also illustrates that the strength and procedural viability of the underlying appeal can affect the balance of convenience. Even where the low merits threshold is met, a stay may be denied when the alleged harm is compensable in damages and restrictions would materially burden the successful trial party.