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Appeal - Stay Pending Appeal (4). Diallo v. Bah
In Diallo v. Bah (Ont Divisional Ct, 2025) the Divisional Court grants a stay with respect to an interim order "permitting the respondent mother to relocate with the parties' two young children to Winnipeg, pending final determination of the issue".
The court considers FLR and RCP provisions, and the (RJR) test, regarding stays pending appeal - here of interlocutory orders:[11] The parties agree that the court has jurisdiction to grant a stay pending determination of the appeal and/or the motion for leave to appeal. Section 35 of the Family Law Rules provides:(35) A temporary or final order may be stayed on any conditions that the court considers appropriate, (a) by an order of the court that made the order; (b) by an order of the Superior Court of Justice. [12] Section 63.02(1) of the Rules of Civil Procedure provides:63.02 (1) An interlocutory or final order may be stayed on such terms as are just, (a) by an order of the court whose decision is to be appealed; (b) by an order of a judge of the court to which a motion for leave to appeal has been made or to which an appeal has been taken. [13] The case law sets out a three-part test for the court to consider when determining whether to exercise its discretion and grant a stay of the order. The considerations are as follows:(a) That there is some merit to the appeal in the sense that there is a serious question to be determined. Where leave to appeal is required, the test is modified, in that there must be a serious question to be determined on the motion for leave to appeal;
(b) That irreparable harm would be occasioned to the Appellant if the stay was refused (although when the case involves children, the irreparable harm is considered vis a vis the children); and
(c) That on balance, the inconvenience to the Appellant if the stay was refused would be greater than the inconvenience to the Respondent if the stay was granted. [14] As with all decisions involving children, the overriding principle is the best interest of the children when considering the factors above, not those of the parties. . Royal Bank of Canada v. John
In Royal Bank of Canada v. John (Ont Divisional Ct, 2025) the Divisional Court considered a motion for a stay pending appeal [under R63.02]:[11] A court may grant a stay pending an appeal under Rule 63.02 of the Rules of Civil Procedure. However, leave to appeal has not been granted. In any event, this Court has a general authority, pursuant to s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43, to stay any proceeding on such terms as are just.
[12] The principles related to the granting of the stay of an Order pending an appeal were described in SS&C Technologies Canada Corp. v. The Bank of New York Mellon Corporation, 2022 ONCA 373, and are equally applicable in a case, such as this one, where leave to appeal has not been granted. Lauwers J.A. described the applicable principles as follows:23 The applicable law on staying a judgment pending appeal is found in RJR-MacDonald Inc. v. Canada (A.G.) 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, applied by analogy. The test for a stay is whether: (1) there is a serious issue to be tried; (2) the appellants will suffer irreparable harm if the stay is not granted; and (3) the balance of convenience favours a stay pending the appeal. "These three criteria are not watertight compartments," Laskin J.A. observed in Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674, at p. 677, because: "The strength of one may compensate for the weakness of another". He noted that "[g]enerally, the court must decide whether the interests of justice call for a stay", citing International Corona Resources Ltd. v. LAC Minerals Ltd. (1986) 21 C.P.C. (2d) 252 (Ont. C.A.).
24 The overarching consideration is the interests of justice. I am mindful of the caution expressed by Robert J. Sharpe in his text Injunctions and Specific Performance, loose-leaf, (Toronto: Canada Law Book, 2021), at para. 2:6: "The weight to be placed upon the preliminary assessment of the relative strength of the plaintiff's case is a delicate matter which will vary depending upon the context and circumstances". This caution applies with necessary modifications to a stay pending appeal in the context of an allegation of judicial bias. [13] Whether there is a "serious issue to be tried" requires a preliminary assessment of the strength of the moving party’s case. It only requires proof that the appeal is neither frivolous nor vexatious. In this case leave to appeal has not been granted and thus there may not be any issue to be tried. In particular, an allegation of a reasonable apprehension of bias only raises a serious issue if there is a “real likelihood or probability of bias beyond a mere suspicion”: SS&C Technologies Canada Corp., para. 47. That is not the case here. To be clear, I am not determining the merits of the motion for leave to appeal. However, on a preliminary assessment of the strength of this appeal, I find that the strength of the issues to be tried are weak.
[14] Irreparable harm is harm which either cannot be quantified in monetary terms or which cannot be cured. The defendant states that he will suffer irreparable harm if this stay is not granted as he believes that the motion for summary judgment will be granted and the judgment will be enforced. In my view, the risk described by the defendant is not irreparable harm. RBC states that the granting of a stay would likely further delay the adjudication of the RBC’s claim and reduce the chances of recovery. There is no evidence to suggest that RBC’s chances of recovery will be any worse if the motion for summary judgment is delayed by several months.
[15] I find that the balance of convenience does not favour a stay pending the leave motion.
[16] I find that the interests of justice favour a dismissal of the motion for a stay of the Order. . 1995636 Ontario Inc. C.O.B. 2B Developments v. 5010729 Ontario Inc. C.O.B. as Astute Capital Corp.
In 1995636 Ontario Inc. C.O.B. 2B Developments v. 5010729 Ontario Inc. C.O.B. as Astute Capital Corp. (Ont Divisional Ct, 2024) the Ontario Court of Appeal allowed an appeal from a dismissed motion to stay [under R63.02(1)], here of an order discharging a CA lien.
The test for such a stay is the 'RJR-MacDonald stay (and 'interlocutory injunction') test:[4] As stated in Carvalho Estate v. Verma, 2024 ONCA 222, at para. 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 Court of Appeal further stated that: “The relative strengths of these factors need not be equal. One factor may favour a stay more strongly than another.”
[6] 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.
Does the appeal raise a serious issue to be tried?
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[8] At this stage of the appeal, this court must be satisfied that the appeal is neither frivolous, that is, devoid of merit or has little prospect of success, or it is vexatious, meant to annoy or embarrass. See Carvalho at para. 7. It is a low threshold.
[9] The standard of review at the appeal is not a re-hearing of the merits but whether there has been an error of law or a palpable and overriding error of fact.
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[40] At para. 19 in Warren Woods Land Corporation v. 1636891 Ontario Inc., 2012 ONCA 12, at para. 19, the court stated that “Irreparable harm is harm that cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other”. However, the lien holds specialized relief and is significant right under the Act and if a stay is not granted, it will be lost forever.
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[49] In Morguard Residential v. Mandel, 2017 ONCA 177, at para. 18 the court stated that a stay is a discretionary remedy and hence the court must consider the “clean hands” doctrine. At para. 29, the court found that the Landlord and Tenant Board’s finding of bad faith on the part of the moving parties militated against the exercise of the court’s discretion to stay the order. . A.A. v. Z.M.
In A.A. v. Z.M. (Ont CA, 2024) the Ontario Court of Appeal granted a CJA s.7(5) panel motion, this to set aside a denied single judge set aside motion order, this against a denial of a stay pending appeal motion.
In these quotes the court considered the stay pending appeal RJR test:[17] The test for a stay pending appeal is well-established. First, the moving party must show that on a preliminary assessment of the merits of the case, there is a serious question to be tried; second, the moving party must show that she will suffer irreparable harm if the stay is not granted; and third, she must show that the balance of convenience favours granting the stay: r. 63.02(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334. The criteria are not watertight compartments, and the strength of one may compensate for the weakness of another: Circuit World Corp v. Lesperance, 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674, at para. 8. In cases involving children, “the overriding consideration … is the best interests of the child. In other words, the court must be satisfied that it is in the best interests of the child to grant a stay”: N. v. F., 2021 ONCA 688, 158 O.R. (3d) 565, at para. 36, citing D.C. v T.B., 2021 ONCA 562, at para. 9; K.K. v. M.M., 2021 ONCA 407, at para. 17.
[18] Every decision on a stay motion involves a discretionary balancing of factors and is entitled to significant deference. On a review, a panel may only interfere where the motion 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; Yaiguaje v. Chevron Corporation, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 21.
[19] In my view, the stay motion judge erred in principle in refusing to grant the stay. The existence of serious questions on appeal, the possibility of significant irreparable harm to the mother and/or child from not granting the stay, and the balance of convenience all augured in favour of granting the stay. Applying the “justice of the case” test as articulated in Oliveira v. Oliveira, 2022 ONCA 218, and considering all the relevant factors, I would set aside the order of the stay motion judge and grant the stay pending the disposition of the appeal.
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