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Simon Shields, LLB

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Injunctions - Interlocutory

Appeals - Stay Pending

Morguard Residential v. Mandel (Ont CA, 2017)

In this case the Court of Appeal restates the test for issuing a stay pending appeal, which is essentially the same as for issuing an interlocutory injunction:
[17] When deciding whether to grant a stay, generally, the courts are to apply the same three-stage test as they do when deciding whether to order an interlocutory injunction: RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334. This test requires the court to:

1. make a preliminary assessment of the merits of the case to ensure that there is a serious question to be tried;

2. determine whether the moving party would suffer irreparable harm unless the stay were granted; and

3. determine which of the parties would suffer greater harm from the granting or refusal of the stay.

[18] Because a stay is a discretionary remedy, the court may also consider the “clean hands” doctrine when deciding whether to order the stay: Authorson (Litigation Guardian of) v. Canada (Attorney General), 2006 CarswellOnt 9418 (C.A.), at para. 9.


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