|
Appeals - Stay Pending Appeal (3). Musqua v. Bellegarde
In Musqua v. Bellegarde (Fed CA, 2024) the Federal Court of Appeal dismissed a motion for a stay pending appeal (under the test in RJR-MacDonald), here of a contempt order:[8] Paragraph 398(1)(b) of the Federal Courts Rules, SOR/98-106 permits this Court to stay an order that is under appeal. The test for obtaining a stay is set out in RJR-MacDonald. Moving parties must establish that: (1) their appeal raises a serious issue; (2) they will suffer irreparable harm if the stay is not granted; and (3) the balance of convenience favours granting the stay: RJR-MacDonald at 334; Canada v. Canadian Council for Refugees, 2008 FCA 40 at para. 18. All three criteria must be met for a stay to be issued.
[9] The threshold for determining whether there is a serious issue is low: RJR-MacDonald at 335; Western Oilfield Equipment Rentals Ltd. v. M-I L.L.C., 2020 FCA 3 at para. 8. The test is met where there is at least one issue to be determined on appeal that is "“not frivolous or vexatious”": RJR-MacDonald at 337; Toronto Real Estate Board v. Commissioner of Competition, 2016 FCA 204 at para. 11; Canadian Council for Refugees at para. 22.
....
[13] Under the second branch of the RJR-MacDonald test, Councillor Musqua must show that she would suffer irreparable harm if the stay were not granted. "“Irreparable”" refers to the nature of the harm, not the magnitude. It is harm that cannot be quantified in monetary terms or remedied through compensation: RJR-MacDonald at 341.
[14] Although the alleged harm in an RJR-MacDonald analysis is necessarily future harm, it cannot be "“hypothetical and speculative”": Janssen Inc. v. Abbvie Corporation, 2014 FCA 112 at para. 24. There must be "“a real probability”" of irreparable harm that cannot be avoided: Bell Canada v. Beanfield Technologies Inc., 2024 FCA 28 at para. 21, and the cases cited therein.
....
[18] Until the Federal Court determines the appropriate sanction, I do not know what harm Councillor Musqua will suffer and therefore cannot determine if the harm is irreparable. The Ontario Court of Appeal similarly held in Sabourin and Sun Group of Companies v. Laiken, 2011 ONCA 757. That Court concluded that the motion to stay a contempt order prior to the sentencing hearing was premature: Sabourin at para. 7. The Court did not accept that the mere risk of being sent to jail qualified as irreparable harm: Sabourin at para. 13.
[19] Even accepting that a risk of imprisonment may constitute irreparable harm, it is potentially avoidable. If the Federal Court were to order imprisonment at the sentencing hearing, Councillor Musqua could immediately appeal the order to this Court and seek a stay of the sentence. This Court could then assess the merits of a stay application with a complete picture of the harm she faces, as is recommended in Sabourin at para. 13. It may also be possible for Councillor Musqua to ask the Federal Court to adjourn her sentencing hearing until after the appeal is heard: Canada (Attorney General) v. Oshkosh Defense Canada Inc., 2018 FCA 102 at para. 24; Hama v. Werbes, 1999 BCCA 714 at para. 3.
[20] At this point, the harm alleged by Councillor Musqua is hypothetical, speculative, and avoidable. The "“irreparable harm”" criterion for the issuance of a stay is not met.
....
[21] The third step of the RJR-MacDonald test, the "“balance of convenience”", involves a comparison of the harm to the responding party from granting the stay and the harm to the moving party from refusing to grant the stay, pending a decision on the merits: RJR-MacDonald at 342; Canada (Citizenship and Immigration) v. Canadian Council of Refugees, 2020 FCA 181 at para. 10. As the RJR-MacDonald test is conjunctive, and Councillor Musqua has not satisfied the second step of the test, it is unnecessary for me to consider the balance of convenience: Janssen at para. 14; Western Oilfield at para. 7.
[22] In any case, in these circumstances, I would be reluctant to intervene in the Federal Court’s contempt proceeding, which does not conclude until a sanction has been determined. While within this Court’s power to order a stay, it is generally preferable not to interrupt proceedings in the trial court if the consequence is to fragment the appeals: Sabourin at para. 7; Hama at para. 3. The sanction for contempt, while determined in a separate hearing, will reflect the Federal Court’s views of the seriousness of the contempt, which is potentially relevant to this Court’s full appreciation of the matter under appeal. . 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 cites the standard 'stay pending appeal' test from RJR-MacDonald (SCC, 1994):The Test on a Motion for a Stay
[4] The overarching consideration is whether a stay is in the interests of justice: Sase Aggregate Ltd. v. Langdon, 2023 ONCA 644, at para. 10. This is determined by a consideration of the factors in RJR-MacDonald Inc v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at pp. 347-49:(a) whether the appeal raises a serious question to be tried;
(b) whether the moving party would suffer irreparable harm if the stay were refused; and
(c) the balance of convenience, namely which of the parties would suffer greater harm from the granting or refusal of the stay. [5] The relative strengths of these factors need not be equal. One factor may favour a stay more strongly than another: Haudenosaunee Development Institute v. Metrolinx, 2023 ONCA 122, at para. 6. However, all three factors must be satisfied for a stay to be granted: R. v. Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 S.C.R. 196, at para. 12.
|
