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Appeals - Stay Pending Appeal (2). Carvalho Estate v. Verma
In Carvalho Estate v. Verma (Ont CA, 2024) the Ontario Court of Appeal dismissed a novel 'stay pending appeal' motion where the main object of concern was a dog, Rocco. At the lower application stage the dog was held to be the property of the estate, and thus the dog was ordered returned to the estate trustee.
Here the court considers the element of 'irreparable harm', part of the standard 'stay pending appeal' test in RJR-MacDonald (SCC, 1994):[18] Further, irreparable harm in the context of a stay motion is harm that flows from the denial of a stay: Belton v. Spencer, 2020 ONCA 623, 58 C.P.C. (8th) 16, at para. 51. The evidence, including that of her health care providers, suggests that Ms. Verma’s anxiety is instead significantly related to the underlying litigation. In any event, Ms. Verma has known since the litigation began that she is in possession of the dog without the consent of Mr. Carvalho’s legal representatives. She has also known since the order under appeal was made, that absent a stay she would be required to part with the dog by March 15. She has had time to put in place other measures to address her anxiety. . Renée v. 10887609 CANADA INC.
In Renée v. 10887609 CANADA INC. (Div Court, 2023) the Divisional Court lifts the automatic RTA R63.01(1) stay ['Eviction Order Under Residential Tenancies Act, 2006'], under R63.01(5) ['Lifting Stay']:[45] Under Rule 63.01(5) of the Rules of Civil Procedure, a judge of the court to which the appeal is taken may order, on such terms as are just, that the stay provided by Rule 63.01(3) does not apply. The Court may grant an order under the provisions of Rule 63.01(5) that the automatic stay of eviction under Rule 63.01(3) be lifted on the basis that an appeal is without merit. . Jarvis v. Jarvis
In Jarvis v. Jarvis (Ont CA, 2023) the Court of Appeal considered the RJR-MacDonald test, here for a stay pending appeal in a family law context:[8] The test governing motions for a stay under r. 63.02 of the Rules of Civil Procedure is adapted from RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385, at para. 48. It requires a reviewing court to make three inquiries:1. A preliminary assessment of the merits of the appeal, to determine whether the appeal raises a serious question;
2. A determination of whether the appellant would suffer irreparable harm if the order were refused;
3. A determination of which of the parties would suffer greater harm from granting or refusing the stay pending a decision on the merits of the appeal. [9] The burden is on the moving party to establish that the stay pending appeal should be granted. The three inquiries are intended to put the court in a position to make the ultimate determination of whether the interests of justice require a stay: Zafar v. Saiyid, 2017 ONCA 919, para. 18.
A serious question
[10] The moving party raises many grounds of appeal. The grounds reduce, essentially, to the claim that the motion judge did not consider all relevant factors in coming to his decision and as a result unnecessarily prejudiced the best interests of the children of the marriage. The grounds are weak, but they are not frivolous or vexatious, and the motion cannot be disposed of on this ground alone.[1]
The moving party will suffer irreparable harm if the stay is not granted
[11] Irreparable harm is a matter of the nature of the harm, rather than its magnitude. In this case it involves the impact on both the moving party and the children of the marriage. The harm identified by the moving party is that in the immediate term she will be unable to secure rental accommodation in the immediate neighbourhood suitable for her and the two children, because: i) she has no funds with which to pay a deposit of first and last month’s rent; ii) she has no references to give in a rental application; and iii) she has no job and therefore no income with which to pay on-going rent. She is concerned that if she is required to leave the immediate neighbourhood, it will result in a deprivation to the children of all the supports on which they have relied post-separation.
[12] The harm faced is not irreparable. The only evidence before the court is that rental properties are available in the neighbourhood that would satisfy the needs of the children both to adequate housing and to enable them to maintain the benefit of friendships, schools, and extracurricular activities. The responding party lives in the same neighbourhood and it is not in his interests to have them relocate. As explained further below, it is not inevitable that the moving party cannot find alternative accommodation. Furthermore, the loss of the matrimonial home in the near term is inevitable.
The balance of convenience
[13] The stay undeniably casts a burden on the moving party. In all likelihood, the matrimonial home will be sold prior to either the appeal or the trial and she will have to find an alternative accommodation. Nevertheless, the situation is not as burdensome as she has made it out to be.
[14] First, the order provides that the children can remain in the house with the responding party while the responding party readies it for sale. Second, the order provides that the January 15 date can be delayed, at the responding party’s discretion, if the moving party agrees to temporarily vacate the property to allow the moving party access to the property to ready it for sale, including painting, repairs, and staging. This latter provision, in particular, would provide the moving party with additional time to arrange her affairs.
[15] The burden on the responding party has already been canvassed. He is, on his evidence, on the brink of insolvency. If he does not sell the matrimonial home, he will not only lose his housing, but risks a sale of the matrimonial home by the mortgagee. This would be detrimental to the financial interests of both parties.
[16] I conclude that in all of the circumstances, a stay of the order is not warranted. ... . U.S. Steel Canada Inc. (Re)
In U.S. Steel Canada Inc. (Re) (Ont CA, 2023) the Court of Appeal considered a stay pending (leave to) appeal motion, here in an appeal of a CCAA insolvency matter:Test for a Stay
[14] The test for staying an order pending appeal or leave to appeal requires the court to: (i) make a preliminary assessment of the merits of the case to ensure that there is a serious issue to be tried; (ii) determine whether the moving party would suffer irreparable harm if the motion were refused; and (iii) assess the balance of convenience as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits: RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334. The overarching consideration is whether the interests of justice call for a stay: Longley v. Canada (Attorney General), 2007 ONCA 149, 223 O.A.C. 102, at para. 15.
[15] The moving party bears the burden of proof in demonstrating that the stay should be granted: International Corona Resources Ltd. v. Lac Minerals (1986), 21 C.P.C. (2d) 252 (Ont. C.A.), at p. 255.
Discussion
[16] The first issue to consider is the preliminary assessment of the merits of the case to ensure that there is a serious issue to be determined. The threshold is a low one.
[17] The merits to consider are those relating to the granting of leave to appeal under the CCAA. This requires consideration of whether: (i) the proposed appeal is prima facie meritorious or frivolous; (ii) the proposed appeal is of significance to the practice; (iii) the proposed appeal is of significance to the proceeding; and (iv) the proposed appeal will unduly hinder the progress of the action.
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[27] Irreparable harm is harm which cannot be quantified in monetary terms: RJR-MacDonald, at para. 341; Urbancorp Toronto Management Inc. (Re), 2021 ONCA 613, 335 A.C.W.S. (3d) 239, at para. 15. The evidence demonstrating harm must be clear and not speculative. . Shanthakumar Estate v RBC
In Shanthakumar Estate v RBC (Div Court, 2023) the Divisional Court considered a stay pending appeal motion, here wrt several orders under appeal:GOVERNING LEGAL TEST
[5] The overarching consideration on a motion for a stay pending appeal is whether a stay is in the interests of justice, the determination of which is informed by: 1) a preliminary assessment of the merits of the appeal to determine whether there is a serious question to be determined on the appeal; 2) a determination of whether the moving party would suffer irreparable harm if the requested stay were refused; and 3) an assessment of which of the parties would suffer greater harm or inconvenience from the granting or refusal of the requested stay (see: Fontaine v Canada (Attorney General), 2021 ONCA 313, at para. 38).
[6] The three parts of the applicable test are interconnected considerations and strength in one of them may compensate for weakness in another (see: Fontaine, at para. 39).
[7] The threshold on the first part of the test is a low one: on a preliminary assessment of the merits of the case, the issue on appeal must be neither frivolous (devoid of merit or with little prospect of success) nor vexatious (taken to annoy or embarrass the respondent or conducted in a vexatious manner, including an oblique motive for launching the appeal) (see: UD Trading Group Holding PTE. Limited v TransAsia Private Capital Limited, 2021 ONCA 279, at paras. 32-33).
[8] For the second part of the test, irreparable harm relates to the nature of the harm rather than its magnitude and the court must determine whether a refusal to grant the requested stay “could so adversely affect the moving party’s interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the stay motion” (see: Louis v Poitras, 2020 ONCA 815, at para. 49). Proof of irreparable harm cannot be inferred and evidence of it must be clear and not speculative (see: Schuster v Royal & Sun Alliance Insurance Company of Canada, 2009 CanLII 58971, at para. 27). . Dramel Limited v. Multani
In Dramel Limited v. Multani (Ont CA, 2023) the Court of Appeal considers the test for a 'stay pending appeal' interim motion, here in a mortgage foreclosure context:[6] This court has jurisdiction to determine interim relief under s.134(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). The test under s. 134(2) is the same as that for granting a stay pending appeal pursuant to r. 63.02(1): Sub-Prime Mortgage Corporation v. Kaweesa, 2021 ONCA 215, at para. 46. It is based on the test for an interlocutory injunction set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334. Under this test, the moving party must establish that it is in the interests of justice to impose a stay, given the relative strengths and weaknesses of the following criteria:1) there is a serious question to be adjudicated on appeal;
2) the moving party would suffer irreparable harm if the relief were refused; and
3) the balance of convenience favours the moving party (i.e., the moving party would suffer greater harm if the relief were not granted than would the responding party if the relief were granted). . College of Physicians and Surgeons of Ontario v. Kilian
In College of Physicians and Surgeons of Ontario v. Kilian (Ont CA, 2023) the Court of Appeal summarizes the stay pending appeal test:[7] It is common ground that the test from RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 applies. The test requires the court to consider three factors: (i) whether there is a serious issue to be tried; (ii) whether the moving party will suffer irreparable harm; and (iii) an assessment of the balance of convenience between the parties.
[8] While strength in one part of the test can make up for a weakness in another, a stay will not be granted where a prong of the test is not met: Haudenosaunee Development Institute v. Metrolinx, 2023 ONCA 122, at para. 6. . Canada v. Boloh 1(A)
In Canada v. Boloh 1(A) (Fed CA, 2023) the Federal Court of Appeal walks briefly through a (granted) stay pending appeal motion (applying RJR-MacDonald):A. Serious issue to be tried
[3] The parties agree that there is a serious issue to be tried in the appeal. Thus, the first element in the three-fold test for a stay is met: RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311; 111 D.L.R. (4th) 385.
B. Irreparable harm
[4] The appellants will suffer irreparable harm if the stay is not granted.
[5] Under this branch of the test, the only issue is whether there is irreparable harm, not its degree or extent. The affidavits from senior officials of Global Affairs Canada, Public Safety Canada, and Immigration, Refugees and Citizenship Canada detail the real likelihood of irreparable harm based on their current information and their knowledge and experience. Current information is that the protocol to be followed for the release of the four respondents is likely to be more stringent than that followed for the release of the nineteen others that the appellants have agreed to repatriate.
C. Balance of convenience
[6] The balance of convenience lies in the appellants’ favour.
[7] The harm detailed by the appellants is significant and affects the wider interests of Canadian security and the safety of persons involved in any repatriation of the respondents. Among other things, sensitive information may well have to be shared with the Autonomous Administration of North and East Syria and, once shared, the appellants would lose control over the circulation of that information. This is to be balanced against the severe and continuing harm being suffered by the four respondents.
[8] Overall, the balance lies in favour of the appellants, particularly in light of the following considerations unique to this unusual case. . Buffone v. Sokil
In Buffone v. Sokil (Ont CA, 2023) the Court of Appeal considered the test for stay pending appeal, here an appeal of a contempt order:[6] I turn to Ms. Sokil’s request for a stay. A moving party in a motion for a stay of an order pending appeal must establish that the appeal raises a serious issue; the denial of the stay will result in irreparable harm; and the balance of convenience favours the relief sought: Belton v. Spencer, 2020 ONCA 623, 58 C.P.C. (8th) 16. . G.S. v. S.B.
In G.S. v. S.B. (Div Court, 2023) the Divisional Court considers a motion for a stay pending appeal of a parenting order:The Motion for a Stay Pending Appeal
[30] In determining whether to stay an order involving the parenting of a child, the court must consider: (i) whether, on a preliminary assessment, the appeal raises a serious question, recognizing that this is a low threshold; (ii) whether the child will suffer irreparable harm if a stay is refused; and (iii) the balance of convenience, that is, whether there would be greater harm from the granting or refusal of a stay pending a decision on the merits of the appeal. The overriding consideration is the best interests of the child. The court must be satisfied that it is in the child’s best interests to grant a stay: D.C. v. T.B., at para. 9;[4] K.K. v. M.M., at para. 17;[5] Lefebvre v. Lefebvre, at para. 6;[6] Circuit World Corp. v. Lesperance, at paras. 8-9.[7]
[31] The standard for appellate review of a parenting decision is exacting: Bors v. Bors, at paras. 18-20.[8] The function of the appellate court is not to retry the case on appeal. Intervention is warranted only if there is a material error, a serious misapprehension of the evidence, or an error of law: D.C., at para. 10. . Ncube v. Hassen
In Ncube v. Hassen (Ont CA, 2022) the Court of Appeal considered the interlocutory injunction test, here in a stay pending appeal case:[12] On a motion for a stay pending appeal, as held in BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 283 O.A.C. 321, at para. 16, the overall consideration is whether it is in the interests of justice to grant a stay. In making that determination, the court is to consider the following three factors:a. Whether the appeal raises a serious issue;
b. Whether there will be irreparable harm if the stay is not granted; and
c. Whether the balance of convenience favours granting the stay. The court reasoned that the orders being appealed were interlocutory, and thus the appeal route was to the Divisional Court with leave, not the Court of Appeal where they were at present. The court applied this lack of jurisdiction to the 'serious issue' part of the stay pending appeal test and dismissed.
. Tovmasyan v. Petrosian
In Tovmasyan v. Petrosian (Ont CA, 2022) the Court of Appeal cited a test for stay pending appeal and related case law:[6] In Ogden Entertainment Services v. United Steelworkers of America, Local 440 (1998), 1998 CanLII 1441 (ON CA), 38 O.R. (3d) 448 (C.A.), at p. 449, this court articulated the test applicable to a request for a stay of an order or judgment pending the hearing of an appeal:In determining whether a stay should be granted pending appeal, the appropriate test to be applied is that set out in RJR-MacDonald Inc. v. Canada, 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385. This test is the same as the test for an interlocutory injunction. Generally, the court must decide whether the interests of justice call for a stay.
In determining whether a stay should be granted, regard must be had to the judgment under appeal and a strong case in favour of a stay must be made out. The court must proceed on the assumption that the judgment is correct and that the relief ordered was properly granted. ....
[9] The preliminary assessment of an appeal’s merits on a motion to stay often applies the low threshold that an appellant need only demonstrate that the appeal is not frivolous or vexatious. However, where, as a practical matter, the rights of the parties will be determined by the outcome of the stay motion, this court may give significantly more weight to the strength of the merits of the appeal: Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761, 142 O.R. (3d) 481, at para. 10. . Paschel v. Paschel
In Paschel v. Paschel (Ont CA, 2017) 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. . Dhatt v. Beer
In Dhatt v. Beer (Ont CA, 2020) the Court of Appeal sets out the test for stay pending appeal:[15] The overarching consideration in whether to grant an application for a stay pending appeal is whether doing so is in the interests of justice. Three factors are considered: (1) whether, on a preliminary assessment, the appeal raises a serious question, recognizing that this is a “low threshold”; (2) whether the applicant would suffer irreparable harm if the application were refused; and (3) the balance of convenience, namely which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. The factors are not watertight; the strength of one may compensate for weakness on another: Zafar v. Saiyid, 2017 ONCA 919, at paras. 17-19. . Arctic Cat, Inc. v. Bombardier Recreational Products Inc.
In Arctic Cat, Inc. v. Bombardier Recreational Products Inc. (Fed CA, 2020) the Federal Court of Appeal considered a stay pending appeal motion by the defendants to a patent infringement injunction (it failed on the second leg of the test: irreparable harm):[10] To stay the Federal Court’s judgment, the appellants must satisfy the tri-partite test outlined in RJR –MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385, at page 334 [RJRMacDonald]. They must establish to this Court’s satisfaction that there is a serious issue to be tried, that they will suffer irreparable harm if the stay is not granted and that the balance of convenience favours granting the stay. All three questions must be answered in the affirmative, and failure on any single question is fatal to the motion for the stay. The standard of proof is a balance of probabilities, and the burden of proof lies on the appellant throughout (Novopharm Limited v. Janssen-Ortho Inc., 2006 FCA 406, 358 N.R. 155 at paras. 8, 11).
[11] The respondent submits that there is one real question before this Court. Should the Federal Court’s anti-infringement injunction be stayed? It argues that Arctic Cat has shown no irreparable harm for the monetary terms of the Order and does not address the balance of convenience.
A. Serious Issue to be Tried
[12] Generally, the rule on a motion for a stay is that the Court conducts a preliminary investigation of the merits. The threshold for seriousness is "“a low one”" and" “liberal”". The moving party needs only show that it is "“neither vexatious nor frivolous”" (RJRMacDonald, at p. 337).
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[18] Turning to the second part of the test, in RJRMacDonald, at page 341, the Supreme Court has stated that "“irreparable harm”" refers to the nature of the harm suffered rather that its magnitude. It is harm either which cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.
[19] To establish irreparable harm, the appellants must adduce clear and non-speculative evidence that irreparable harm will follow if the motion for the stay is denied. It may not be simply based on assertions (United States Steel Corporation v. Canada, 2010 FCA 200, 191 A.C.W.S. (3d) 707, at para. 7).
[20] Instead, "“there must be evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted”" (Glooscap Heritage Society v. Canada (National Revenue), 2012 FCA 255, at para. 31 [Glooscap]; see also Dywidag Systems International, Canada, Ltd. v. Garford Pty Ltd., 2010 FCA 232 at para. 14; Canada (Attorney General) v. Canada (Information Commissioner), 2001 FCA 25, 268 N.R. 328 at para. 12; Laperrière v. D. & A. MacLeod Company Ltd., 2010 FCA 84, 402 NR 341 at para. 17; Janssen Inc. v. Abbvie Corporation, 2014 FCA 176, 242 ACWS (3d) 11 at para. 46). . Volk v. Volk
In Volk v. Volk (Ont CA, 2020) the Court of Appeal sets the test for whether a stay should be granted pending appeal:[9] The question whether a stay should be ordered is governed by the three inquiries set out in RJR-Macdonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311. The moving party must show that:a) There is a serious question to be tried;
b) The moving party will suffer irreparable harm if the stay were refused; and
c) The balance of convenience favours granting the stay.
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