Hearing four appeals together, a five judge panel overruled Handley Estate and ended the automatic stay for late disclosure of partial settlement agreements. The Court held that Handley was wrongly decided: it deemed any failure to immediately disclose a landscape changing settlement an abuse of process without proof of prejudice, and made a stay the only remedy, neither of which fits the abuse of process doctrine, which requires a contextual, discretionary inquiry into prejudice or harm to the administration of justice and a proportionate remedy. Going forward, non disclosure may be an abuse of process, decided on the facts, with a stay reserved for the clearest cases.
The Court confirmed new r. 49.14 points the same way, and clarified that a stay is final and appealable to the Court of Appeal while a refusal of a stay or any lesser remedy is interlocutory and goes to the Divisional Court with leave. Applying this, the stays in Welland and Thrive were set aside and remitted because prejudice was never assessed in the former and the Thrive judge would not have stayed but for Handley; the Evertz stay stood given eight months of piecemeal disclosure plus misleading the court; and the refusal of a stay in Howran held up because the City knew the essential terms from 2017, was never misled, and suffered no prejudice.
