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Appeals - Stay Pending

Paschel v. Paschel (Ont CA, 2017)

In this case the Court of Appeal sets out the test for granting a stay of the Order pending appeal:
[9] My colleague, Hourigan J.A., recently summarized the test for a stay in this context in Zafar v. Saiyid, 2017 ONCA 919 (CanLII), at paras. 17-18:
The test for staying an order pending appeal under r. 63.02 of the Rules of Civil Procedure, requires the court to consider the following factors: (1) a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried; (2) it must be determined whether the applicant would suffer irreparable harm if the application were refused; and (3) an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits: Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A. [In Chambers]), at para. 8; Warren Woods Land Corp. v. 1636891 Ontario Inc., 2012 ONCA 12 (CanLII) [In Chambers], at para. 1.

These three factors are not watertight compartments; the strength of one may compensate for the weakness of another. The overarching consideration is whether the interests of justice call for a stay: International Corona Resources Ltd. v. LAC Minerals Ltd. (1986), 21 C.P.C. (2d) 252 (Ont. C.A.); Longley v. Canada (Attorney General), 2007 ONCA 149 (CanLII), 223 O.A.C. 102 [In Chambers], at paras. 14-15.


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