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Simon Shields, LLB

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Stays - Pending Appeal or Leave to Appeal

Injunctions - Interlocutory

Prince Edward County Field Naturalists v. Ostrander Point GP Inc. (Ont CA, 2014)

In this case the court made the following salutory comments on the contrasting natures of stays (of lower court Orders) pending appeal (or leave to appeal being granted) and interlocutory injunctions:
[8] Ostrander argued that PECFN is not truly requesting a stay of the order of the Divisional Court under Rule 63.02(1) of the Rules of Civil Procedure, but is, in reality, seeking an interlocutory injunction prohibiting the operation of the REA. While the criteria for obtaining a stay and for obtaining an interlocutory injunction have common elements, a party seeking an interlocutory injunction is additionally required to provide an undertaking as to damages. PECFN has not done so.

..........

[12] The criteria for obtaining a stay of an order pending appeal or an application for leave to appeal are well-known and not contested. The moving party must show (a) that it has raised, or will raise if leave is granted, a serious issue for consideration on appeal; (b) that it will suffer irreparable harm if a stay is not granted; and (c) that the balance of convenience favours such an order: RJR-MacDonald v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311. For leave to appeal to be granted, the proposed appeal must raise an issue of some public importance: Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479 (C.A.).

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