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Appeals - Automatic Stays on Appeal [R63.01]. Guillaume v. Ontario (Chief Animal Welfare Inspector)
In Guillaume v. Ontario (Chief Animal Welfare Inspector) (Div Court, 2024) the Divisional Court considered (and dismissed) a CJA 21(5) set aside motion of an earlier unsuccessful court stay motion of a ACRB order dismissing an appeal as moot:[7] In the Stay Decision, Nishikawa J. accepted the Chief Inspector’s submission that the applicant’s motion to stay should be dismissed as moot: Stay Decision, at paras. 7-10. She reasoned that because the applicant failed to pay the Statement of Account within the required period of ten business days after the Board Decision, the animals were forfeited to the Crown under s. 35(4) of PAWSA. The motion judge also found that in the event the stay motion was not moot, the three-part test for granting a stay (set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311) had not been met, on the evidence before her: Stay Decision, at paras. 5-6, 11. While it was conceded that the judicial review application raised a serious question (satisfying the first element of the stay test), the motion judge found that the applicant had not demonstrated that (i) there would be irreparable harm if the stay was not granted, or that (ii) the balance of convenience favoured granting the stay.
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[9] The applicant submits that the motion judge erred in her findings relating to both mootness and the test for staying the Board Decision.
[10] With respect to mootness, the applicant challenges the motion judge’s conclusion that the animals were forfeited to the Crown before she brought her stay motion. The motion judge justified that conclusion on the basis that the applicant did not pay the Statement of Account (or negotiate an arrangement with the Chief Inspector) within the required period of ten business days after the Statement of Account was issued: see Stay Decision, at paras. 8-10. Among other things, the applicant argues that she served her Notice of Appeal within the required ten-day business day period, with the result that there was an automatic stay of the Board Decision under s. 25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”). The applicant argues that because the Board Decision requires the payment of money to satisfy the Statement of Account, it was automatically stayed when the Notice of Appeal was filed. The applicant also argues that instead of striking her Notice of Appeal, it was open to Matheson J. to treat it as a Notice of Application for Judicial Review, in which case she would have had the benefit of the automatic stay under s. 25(1) of the SPPA.
[11] We see no merit in those submissions. Section 25(1) of the SPPA provides an automatic stay of a tribunal decision that is under appeal, but only if there is a right of appeal from the tribunal decision. There was no statutory appeal from the Board Decision in this case. The fact that the decision being challenged provides for the payment of money does not create a right of appeal and is not relevant under s. 25(1). As well, even if the Notice of Appeal was treated as a Notice of Application for Judicial Review as the applicant suggests, there would be no automatic stay since a judicial review application does not give rise to an automatic stay of the tribunal decision and no stay application was brought within the required ten business day period (as the motion judge correctly stated in the Stay Decision, at para. 10). In these circumstances, we see no error of law or a palpable and overriding error of fact arising from the motion judge’s conclusions relating to mootness. . Oz v. Shearer
In Oz v. Shearer (Div Court, 2023) the Divisional Court considered the related administrative automatic stay-pending-appeal provisions [SPPA s.25 and RCP R63.01(3)], here in an RTA context:[5] The Tenants appealed that decision to the Divisional court pursuant to s. 210(1) of the Residential Tenancies Act, S.O. 2006, c. 17.
[6] Pursuant to s. 25 of the Statutory Powers Procedure Act, R.S.O. 1990, chap. S-22, (SPPA) unless the court orders otherwise, there is an automatic stay of the eviction order pending the appeal to the Divisional Court. Section 25 provides as follows:Appeal operates as stay, exception
25. (1) An appeal from a decision of a tribunal to a court or other appellate body operates as a stay in the matter unless,
(a) another Act or a regulation that applies to the proceeding expressly provides to the contrary; or
(b) the tribunal or the court or other appellate body orders otherwise.
Idem
(2) An application for judicial review under the Judicial Review Procedure Act, or the bringing of proceedings specified in subsection 2 (1) of that Act is not an appeal within the meaning of subsection (1) [7] A similar provision expressly referencing an eviction order under the Residential Tenancies Act, 2006, is set out in Rule 63.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The relevant portions of that rule provide:Eviction Order Under Residential Tenancies Act, 2006
(3) The delivery of a notice of appeal from an interlocutory or final order made under the Residential Tenancies Act, 2006 stays, until the disposition of the appeal, any provision of the order,
(a) declaring a tenancy agreement terminated or evicting a person; or
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Lifting Stay
(5) A judge of the court to which the appeal is taken may order, on such terms as are just, that the stay provided by subrule (1), (3) or (4) does not apply. [8] It is important to note that s. 25 of the SPPA is somewhat broader than Rule 63.01(3), since the latter applies only to an LTB order “declaring a tenancy agreement terminated or evicting a person”, while the former could apply to any order granted by any tribunal.
[9] When the Notice of Appeal from an eviction order is filed, the court office will, when requested, issue a certificate of stay so that the Sheriff’s office knows not to enforce the eviction order until the stay is lifted or the appeal is dismissed. . Ramlochan v D’Souza
The Divisional Court in Ramlochan v D’Souza (Div Ct, 2012) considered an application to lift a statutory stay where a landlord faced an appeal by tenants who had been ordered by the L&T Board to leave the premises, and where the issue was complicated by the assertion by the tenants of an Agreement of Purchase and Sale. The court, in applying the interim injunction principle of 'balance of convenience', noted that the burden of convincing the court to lift a statutory stay lay on the party seeking it, and that - in the circumstances of this case - there was no compelling reason to change the status quo created by the automatic stay.
. D’Amico v Hitti
In the Divisional Court residential tenancy case of D’Amico v Hitti (Div Ct, 2012) Matlow J faced a non-payment of rent appeal by a tenant that had not paid rent since moving into the premises, and who failed to appear at the appeal hearing. Citing this as an example of several similar cases that had come before him recently, the judge took it on himself to criticize the automatic stay provisions that applied to such cases by virtue of SPPA s.25(1), and suggested that imposing a leave to appeal requirement in such appeals might be appropriate. The case attracted media attention on Matlow J's policy change suggestion: Case highlights flaws in landlord, tenant rules: Toronto Star, 31 August 2012.
My view is that a leave requirement would be quite disproportionate and inefficient to address the problem the court identified here. Leave motions are as much paperwork as a full appeal, and often these days are treated by the appeal courts as de facto summary appeals - forcing the parties to unnecesssarily address the merits of the case as well as the leave criteria. The problem identified by the judge here is unique to non-payment of rent cases and could be addressed by a requirement that the tenant be required to deposit the Board-ordered arrears and ongoing rent with the court in order to maintain their right of appeal, a jurisdiction which already lies with the court under s.25(1)(b) of the SPPA.
Very similar requirements are already in place at the Board level, where failure to make such 'catch-up' payments is fatal to the tenant's defence: see Ch.7: Non-Payment of Rent Terminations. In fact, if the Board at the early application stage of this case had simply required that the catch-up payment at that point be made by certified cheque or money order - rather than personal cheque - this situation would never have gotten anywhere near this far. It plainly had authority to demand verification of actual payment by virtue of the RTA s.74(2) requirement that it be 'satisfied' that payment had been made. With respect, I view the imposition of a leave to appeal requirement as excessive and unnecessary to the situations being targeted.
. Hrvoic v. Hrvoic
In Hrvoic v. Hrvoic (Ont CA, 2023) the Court of Appeal considers a partial lifting of the R63.01 automatic stay for a money judgment:[5] The appellant appealed. Pursuant to r. 63.01(1), the trial judgment was automatically stayed. The respondent then brought a motion asking that the stay be partially lifted, pending appeal, in respect of $2,686,437.31. On the stay motion, counsel for the respondent accepted that payment of the money should be subject to a transfer of some of the shares in the company.
[6] The chambers judge granted the motion and lifted the stay to the extent of $1,874,400. In accordance with SA Horeca Financial Services v. Light, 2014 ONCA 811, 123 O.R. (3d) 542, the chambers judge considered: (i) the financial hardship to the respondent if the stay was not lifted, (ii) the respondent’s ability to repay or provide security for the amount paid, and (iii) the merits of the appeal.
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Analysis
[10] The chambers judge exercised his discretion under r. 63.01(5), which provides that the judge may lift the automatic stay pending appeal “on such terms as are just”. Given the breadth of discretion conferred on the chambers judge by r. 63.01(5), the reviewing panel must accord his order a high degree of deference: it may interfere with it only if the chambers judge failed to identify the applicable principles, erred in principle, or reached an unreasonable result: Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th) 228, at para. 18.
[11] There is no question that the chambers judge identified the applicable legal principles. The appellant’s complaint is with the chambers judge’s finding that the respondent had demonstrated financial hardship. He argues here, as he did below, that the respondent provided no evidence of financial hardship. In support of this argument, he points to the absence of evidence on the respondent’s current income, her assets, her ability to borrow, her expenses, or whether she was in financial difficulty.
[12] I see no error in principle in the chambers judge’s approach to the matter of financial hardship nor do I see that he reached an unreasonable result.
[13] Contrary to the appellant’s submissions, this is not akin to the situation in Health Genetic Center Corp. (Health Genetic Center) v. New Scientist Magazine, 2019 ONCA 576, 49 C.P.C. (8th) 39, where there was no evidence of financial hardship in any of the affidavits filed. On this matter, I point to the chambers judge’s recitation of the respondent’s evidence of financial hardship. In her affidavit dated November 8, 2022, the respondent sets out her unchallenged evidence that: she was dismissed from her job with the parties’ company on March 1, 2020; she had difficulties finding new employment in the COVID-19 pandemic; and, she had no employment income for over two years.
[14] The trial judge made similar findings of financial hardship. She wrote the following at paras. 16 and 61 of her reasons for decision:On or about March 2, 2020 [the appellant] terminated [the respondent’s] employment with Marine Magnetics without notice. There is a separate legal proceeding ongoing related to [the respondent’s] termination.
In all the circumstances I would still exercise my discretion and award an equitable remedy. There are complex family dynamics at play here. In fact, the evidence was that there are still ongoing acrimonious family law proceedings related to the children. [The appellant] led [the respondent] down the garden path regarding her continued equal treatment from the family business. Then, he suddenly pulled the rug out from under her. [The respondent] panicked. By firing her, [the appellant] had cut off her only source of employment income. All of [the respondent’s] relevant work experience had been gained in a company whose president was now claiming that she was fired for cause. [The appellant] also refused to authorize dividends from the company, without explanation, and [the respondent] had no other source of income. [Emphasis added.] [15] The chambers judge referred to the “demonstrable and unusual hardship” test in SFC Litigation Trust v. Chan, 2018 ONCA 710, 66 C.B.R. (6th) 239, when he assessed the respondent’s financial need. However, in my view, the principles in Digiammatteo v. Leblanc (1989), 1989 CanLII 4076 (ON CA), 71 O.R. (2d) 130 (C.A.), are more directly on point.
[16] In Digiammatteo, there was no appeal as to liability. As a result, in deciding whether to lift the stay, Finlayson J.A. said the “only valid question” was how much money should be released. He observed that it was “most unjust” that the moving party had received virtually no compensation when, by the time of trial at least, it was accepted that he was not at fault. Justice Finlayson then considered a “best case scenario” for the appellants and lifted the stay to that extent.
[17] Just as was the case in Digiammatteo, in the underlying appeal, the appellant does not contest liability. He acknowledges that he must pay the respondent for the transfer of her shares in the company to him. The contest is about how much he must pay her. In light of that, it would be most unjust if the respondent were to receive nothing by way of compensation until the appeal process is complete. In these circumstances, the only question for the chambers judge was to quantify the amount by which the stay should be lifted. He used the appellant’s “best case” figure to quantify that amount. While the chambers judge did not discount the appellant’s best case figure to allow for possible costs awards in his favour, I do not view that as an error in principle nor does it render the chambers judge’s order unreasonable.
. KLN Holdings Inc. v. Grant
In KLN Holdings Inc. v. Grant (Ont CA, 2023) the Court of Appeal clarifies that the automatic stay on appeal [R63.01: for "any provision of the order for the payment of money"] does not apply to a writ of possession:[4] Mr. Grant submits that by appealing the summary judgment, he benefits from r. 63.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. However, that rule does not apply to writs of possession: National Bank of Canada v. Guibord, 2021 ONCA 864, at para. 6. There is no automatic stay in this case. . Westdale Properties v. Reisher
In Westdale Properties v. Reisher (Div Court, 2023) the Divisional Court considered, and dismissed, a landlord's motion to quash an RTA s.210 appeal on being of "devoid of merit". Here the court denies a landlord's request to lift the automatic RTA stay on appeal [SPPA 25(1)]:VI: SHOULD THE STATUTORY STAY BE LIFTED?
[43] This Court may lift a statutory stay on an appeal where the respondent has shown "demonstrable and unusual hardship […] and […] a reasonable measure of protection can be afforded”: see Minas v. Adler, 2022 ONSC 3053 at para.17; Ryan v. Laidlaw Transportation Ltd. 1994 CanLII 616 (ON CA).
[44] Westdale submits that the finding of Ms. Reisher’s interference with the reasonable enjoyment of their premises by other tenants is entitled to deference and ought to give rise to a lifting of the statutory stay.
[45] While Ms. Reisher does not challenge her problematic conduct, the evidence from the hearing reveals that it is grounded in a mental disorder, that Ms. Reisher’s community treatment team has taken steps to try and ameliorate her behaviour and she is anticipated to have the services of a more assertive community team in the near future.
[46] Lifting the stay at this stage would effectively determine the appeal, because Ms. Reisher would lose her housing. This is the issue on the appeal. On balance, at this stage, I cannot conclude that there is “unusual hardship” which would justify lifting the stay. . Hrvoic v. Hrvoic
In Hrvoic v. Hrvoic (Ont CA, 2023) the Court of Appeal considers lifting an automatic stay pending appeal of a money order [under R63.01(5)]:[3] In the second motion (M53912), the respondent requests that the automatic stay pending appeal be lifted in respect of $2,686,437.31. According to the respondent, this amount represents the appellant’s “best position” were he to succeed on all issues in the appeal. In other words, this is the amount that the appellant owes the respondent even taking into account his valuation advanced at trial. The respondent argues that she will suffer financial hardship if the stay is not lifted, and the appellant’s appeal in respect of that amount is not meritorious.
[4] The appellant is opposed to this order. He submits that the respondent has not demonstrated financial hardship if the stay is not lifted. Furthermore, he submits that his best position, were he to succeed on all issues in the appeal, would be a finding that he pay $1,874,400 for her interest in the company, less the costs of the proceedings and the appeal.
[5] In support of the relief claimed, the respondent relies upon r. 63.01(5) of the Rules, which allows this court to lift an automatic stay imposed pursuant to r. 63.01(1).
[6] The case law is clear. An automatic stay should only be lifted in cases of demonstrable and unusual hardship to the respondent, and when a reasonable measure of protection can be afforded to the appellant to allow recovery if the appeal succeeds: Ryan v. Laidlaw Transportation Ltd. (1994), 1994 CanLII 616 (ON CA), 19 O.R. (3d) 547 (Ont. C.A.), at pp. 549-50.
[7] The three principal factors that courts assess to determine whether to lift an automatic stay pending appeal are:(1) the financial hardship to the respondent to the appeal if the stay is not lifted;
(2) the ability of the respondent to repay or provide security for the amount paid; and
(3) the merits of the appeal. See SA Horeca Financial Services v. Light, 2014 ONCA 811, 123 O.R. (3d) 542, at para. 13.
[8] In SFC Litigation Trust v. Chan, 2018 ONCA 710, Brown J.A. summarized the principles governing a request to lift the automatic stay of enforcement pursuant to r. 63.01(5). He noted that in Ryan v. Laidlaw Transportation Ltd., Austin J.A. described the perspective a judge should bring to a motion to lift a stay pending appeal. Austin J.A. quoted with approval the following comments made by Carthy J.A. in Mortimer v. Cameron, [1993] O.J. No. 4169 (C.A.), at para. 2:As an initial observation I express the view that motions under this rule should be restricted to cases of demonstrable and unusual hardship to the respondent, and where a reasonable measure of protection can be afforded to the appellants. The reason for the first standard is that the rule provides for a stay of money judgments and should be applied in all but unusual circumstances. The reason for the second standard is to protect appellants against payments which they may not eventually be obligated to make, thus putting them to the uncertainties of recovery. In most cases the merits of the appeal will have a bearing on these factors. [Emphasis added.] . Di Santo v. Di Santo Estate
In Di Santo v. Di Santo Estate (Ont CA, 2022) the Court of Appeal usefully clarified the point that costs order below, being orders for "the payment of money", are automatically stayed under R63.01(1):The Motion to Lift the Stay of the Costs Order
[12] The Costs Order was automatically stayed by the filing of the appeal: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 63.01(1). We see no basis for lifting that stay. . Antunes v. Limen Structures Ltd.
In this Court of Appeal case, Antunes v. Limen Structures Ltd. (Ont CA, 2016), the respondent (and successful plaintiff at trial) sought to partially lift the automatic stay of monetary judgment on the filing an appeal. The appellant had first appealed part of the judgment, but when the respondent sought to lift the stay regarding the balance of the judgment (so it could enforce it) the appellant/defendant amended their Notice of Appeal (outside of the original 30-day timeline but as of right since the appeal had not yet been perfected) to add the previously unappealed issues, thus bringing them more firmly under the automatic stay. The Court set out the test for lifting the automatic stay as follows:The Test for Lifting a Stay
[11] I accept that the stay of execution imposed by rule 63.01 is intended to offer some protection to an appellant against payments which it might not eventually be obligated to make, thus putting it to the uncertainties of recovery. In Stein v. Sandwich West (Township) (1994), 1994 CanLII 10599 (ON CA), 16 O.R. (3d) 321 (C.A.), at pp. 322-3, Carthy J.A. observed:If I make an order in this case, there will be a risk to the appellants and the only measure of that risk likes in an assessment of the merits of the appeal on liability. It is not necessary to find the appeal frivolous if I can be satisfied that on the basis of what is presented to me, at this stage of the proceedings, the chances of success are so modest that they are overwhelmed by the hardship to the applicants. [12] Justice Carthy found “nothing in the wording of rule 63.01(3) [now rule 63.01(5)] to prevent the exercise of the court’s discretion under any circumstances, including where the risk is imposed on the appellants.”
[13] These cases require the court to consider a number of contextual factors, including: the grounds of appeal; the parties’ position at trial; what has happened since the trial; the general circumstances of the case, including the trial judge’s reasons; and the probable delay between trial and appeal that cannot be controlled by the parties, as noted in Todd Archibald, Gordon Killeen & James C. Morton, Ontario Superior Court Practice, 2015 (Markham, Ont.: LexisNexis, 2014), at p. 1740.
[14] This court described the test for lifting the stay in SA Horeca Financial Services v. Light, 2014 ONCA 811 (CanLII) (per Weiler J.A. (In Chambers)), at para. 13:Rule 63.01(5) gives an appellate court judge discretion to lift a stay imposed by rule 63.01(1) “on such terms as are just.” In considering whether to lift a stay, the court should have regard to three principal factors: i) financial hardship to the respondent if the stay is not lifted; ii) the ability of the respondent to repay or provide security for the amount paid; and iii) the merits of the appeal. [15] In Keays v. Honda Canada Inc., 2007 ONCA 564 (CanLII), Armstrong J.A. (In Chambers) considered lifting the stay in a wrongful dismissal action pending appeal to the Supreme Court of Canada. He partially lifted the stay on the basis that the respondent had made out a significant case for financial hardship if the stay were not lifted. He recognized that it was very unlikely that the respondent would be able to repay or provide security for any amount paid to him.
[16] While Armstrong J.A. expressed difficulty in assessing the merits of the appeal in Keays, because he was not provided with a list of the grounds, he noted, at para. 23, that the decision on liability for wrongful dismissal “is based on findings of fact made by the trial judge which were subject to appellate review on the basis of palpable and overriding error – a very difficult standard to meet.”
[17] In Keays, Armstrong J.A. lifted the stay to the extent of $60,000 while the appeal proceeded in the Supreme Court of Canada. (I note in passing that Armstrong J.A.’s assessment was vindicated when the Supreme Court allowed Honda’s appeal, but only in relation to the damages award for the conduct of the dismissal and the award of punitive damages. The wrongful dismissal damages were upheld: Keays v. Honda Canada Inc., 2008 SCC 39 (CanLII), [2008] 2 S.C.R. 362.)
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