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Appeals - Stay

Thunder Bay (City) v. Canadian National Railway Company (Ont CA, 2018)

Here the court sets out the test for a stay pending appeal, and comments on how this test is varied in the Supreme Court of Canada:

[34] The basic test for granting a stay pending leave to appeal is the same as the test for granting an interlocutory injunction. The moving party must demonstrate: i) a serious issue to be adjudicated on appeal; ii) that it will suffer irreparable harm if a stay is not granted; and iii) that the balance of convenience favours granting a stay: see Yaiguaje v. Chevron Corporation, 2014 ONCA 40 (CanLII), 315 O.A.C. 109, at para. 3; RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 314.

[35] However, these factors are not “watertight compartments”; the strength of one factor may compensate for the weakness of another. Overall, the court must decide whether, taking all relevant considerations into account, the interests of justice warrant granting a stay: Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A.), at p. 677.

[36] Although ordinarily the threshold for establishing a serious issue to be adjudicated is low, the criteria for granting leave to the Supreme Court of Canada add another layer to the test: BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620 (CanLII), 283 O.A.C. 321, at para. 16.

[37] Under s. 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26 leave may be granted where any question involved is one that ought to be decided by the Supreme Court by reason of its public importance or the importance of any issue of law or any issue of mixed fact and law or for any other reason of such a nature and significance as to warrant a decision by the Supreme Court.

[38] The stay test requires that a judge hearing a stay motion consider not only whether the proposed appeal raises a serious issue to be adjudicated under RJR-Macdonald. The judge must also consider the factors in s. 40(1) and assess whether there is some merit in the leave application: Yaiguaje, at para. 4.

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