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Appeals - Stay Pending Appeal

Livent Inc. v. Deloitte & Touche (Ont CA, 2016)

In this case the Court of Appeal reviewed the principles at play when deciding to issue a stay pending appeal:
[4] This court discussed considerations on this kind of motion in Yaiguaje v. Chevron Corporation, 2014 ONCA 40 (CanLII). They are those set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 at 334: (1) whether there is a serious question to be determined on the proposed appeal; (2) whether the moving party will suffer irreparable harm if the stay is not granted; and (3) whether the balance of convenience favours a stay.

[5] It has been held that these factors are not to be treated as watertight compartments and the strength of one may compensate for weaknesses of another. The overarching consideration is whether the interests of justice call for a stay. In BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620 (CanLII), Laskin J.A. described the test as follows, at para. 16:
The moving party … must show that it has raised a serious issue to be adjudicated, that it will suffer irreparable harm if a stay is not granted, and that the balance of convenience favours a stay. These three components of the test are interrelated in the sense that the overriding question is whether the moving party has shown that it is in the interests of justice to grant a stay.
See also Longley v. Canada (Attorney General) 2007 ONCA 149 (CanLII) at paras. 14-15.

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(1) Serious question to be determined

[7] As MacPherson J.A. explained in Yaiguaje, the “serious question” factor is modified in the context of stays pending appeal to the Supreme Court of Canada to require not simply an assessment of the merits of the proposed appeal, but also whether it raises an issue of public or national importance and thus meets the stringent requirements of s. 40(1) of the Supreme Court Act.

[8] Generally, this factor has been described as a “low threshold”: see Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1434 (ON CA), 33 O.R. (3d) 647 (C.A., Chambers).

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(2) Irreparable Harm

[10] The irreparable harm requirement refers to “harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other”: RJR-Macdonald at p. 341, Fontaine at para. 36. In Robert J. Sharpe, Injunctions and Specific Enforcement, Looseleaf Edition, Canada Law Book, Toronto, it is stated at para. 2.411 that “[i]t has been held that the courts should avoid taking a narrow view of irreparable harm.”

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[12] The balance of convenience is just that – a balancing of which party will suffer the greater harm from the stay being granted or refused. In this case, in my view, it goes in particular to the question of whether the interests of justice make up for the weakness of the irreparable harm factor.


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