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Appeals - Stay Pending Leave to Appeal. Kirpichova v. Galaxy Real Estate Core Ontario LP
In Kirpichova v. Galaxy Real Estate Core Ontario LP (Ont CA, 2024) the Ontario Court of Appeal dismissed a motion for stay pending leave to appeal, here in an RTA matter:[4] The test on a motion for a stay is the same as for an interlocutory injunction. The overarching consideration in determining whether a stay ought to be granted is whether the stay is in the interests of justice. Factors typically informing that consideration include: 1) Is there a serious issue to be decided? 2) Would compliance with the order under appeal cause irreparable harm? 3) What is the balance of convenience? See: RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311. A stay is an equitable remedy within the discretion of the court.
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[8] There is no serious issue to be tried. The motion for leave to appeal Sachs J.’s order is without merit and does not meet the criteria for leave. The test for leave, especially in the case of a second appeal, is stringent and well-established. Appeals to the Divisional Court are meant to be final and leave to appeal from the Divisional Court to this court will usually be granted only if there is an arguable issue involving a matter of statutory interpretation or of principles of law, special circumstances, clear error, or matters of public importance: Sault Dock Co. v. Sault Ste Marie, 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479; Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, at paras. 19-22; Windrift Adventures Inc. v. Ontario (Animal Care Review Board), 2024 ONCA 89, at paras. 5 and 7.
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[10] The moving parties have not shown that they will suffer irreparable harm. While they claim impecuniosity, they seem to have access to funds when needed. For example, they were able to make payments of monthly rent and towards the arrears of rent when ordered to do so by the Divisional Court in 2022 and 2024 as a condition of a stay of the eviction order pending the tenant’s appeals; and they offered on this motion to pay $1,750 in monthly rent in trust to the Board as a condition of the requested stay.
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[12] The balance of convenience clearly favours the responding party. According to the Board and court decisions that have not been appealed or reviewed successfully, there are significant arrears of rent. The tenant has stopped making payments towards the rent arrears and is not paying anything as monthly rent. Nor have the cost orders of the Divisional Court and this court been satisfied, which do not form part of their motion for leave to appeal. They refuse to vacate the unit and thus prevent the responding party from mitigating its losses. Based on the history of these proceedings, it will likely be extremely difficult for the responding party to collect all of the monies owing. . Windrift Adventures Inc. v. Ontario (Animal Care Review Board)
In Windrift Adventures Inc. v. Ontario (Animal Care Review Board) (Ont CA, 2023) the Court of Appeal noted an addition to the stay pending leave to appeal test (in addition to RJR MacDonald test):[4] To be successful on this motion, the moving parties must meet the test from RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 SCR 199, which provides that a stay will be granted if the court finds that: (i) there is a serious issue to be tried; (ii) the moving party will suffer irreparable harm if the stay is not granted; and (iii) the balance of convenience favours the moving party who will suffer the greater harm from the denial of the stay pending a decision on the merits.
[5] The serious issue to be tried ultimately relates to the merits of the leave to appeal motion. Therefore, in addition to the standard RJR-MacDonald factors, there must be added a consideration of the principles governing applications for leave to appeal from final orders of the Divisional Court set out in Sault Dock Co. Ltd. v. Sault Ste. Marie (City), 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479 (C.A.). . Afolabi v. Law Society of Ontario
In Afolabi v. Law Society of Ontario (Ont CA, 2023) the Court of Appeal notes that the test is the same for a stay pending appeal, or a stay pending leave to appeal:[8] The test for staying an order pending appeal is well-known: see RJR‑MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334. It requires the court to consider whether: (1) there is a serious issue to be determined, in the sense that it is neither frivolous nor vexatious; (2) the moving party will suffer irreparable harm if the stay is denied; and (3) the balance of convenience favours the granting of the stay. The same test applies when the moving party seeks a stay pending a motion for leave to appeal: Spadacini Kelava v. Kelava, 2021 ONCA 345, 55 R.F.L. (8th) 263, at para. 16. . Avedian v. Enbridge Gas Distribution Inc.
In Avedian v. Enbridge Gas Distribution Inc. (Ont CA, 2023) the Court of Appeal sets out the test for stay pending appeal, though this was in the context of a motion for leave to appeal - and that of a denied motion for leave to appeal interlocutory case management orders:Rule 63.02 – Motions for a Stay Pending Appeal by Order
[10] Rule 63.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 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. The Test on a Motion for a Stay
[11] The principles applicable on a motion for an order granting a stay pending appeal are well known. In RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334, the Supreme Court of Canada set out a three-part test for obtaining a stay of a judgment pending appeal:(1) whether there is a serious question to be tried (i.e., to be determined on appeal);
(2) whether the moving party will suffer irreparable harm if the stay is not granted; and
(3) whether the balance of convenience favours granting a stay. [12] The components of the test are not watertight compartments, but rather interrelated considerations such that the strength of one may compensate for the weakness of another: see Circuit World Corp. v. Lesperance (1997) 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A.), at p. 677. However, in some cases, this court has treated the absence of any one factor on its own as sufficient to dispose of the motion for stay: e.g., Haudenosaunee Development Institute v. Metrolinx, 2023 ONCA 122, at paras. 6, 16; Volk v. Volk, 2020 ONCA 297, at paras. 12-13. In other cases, the court has indicated that the factors are not “prerequisites” and that “[t]he ultimate test for granting a stay is the interests of justice”: M & M Homes Inc. v. 2088556 Ontario Inc., 2020 ONCA 134, 51 C.P.C. (8th) 253 at para 42. In the end, the overarching consideration is “whether the interest of justice call for a stay”: Longley v. Canada (Attorney General), 2007 ONCA 149, 223 O.A.C. 102, at para. 15; Circuit World, at p. 677.
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[16] It is not clear to me that the moving parties are entitled to a stay of the Orders based on their application for leave to appeal to this court from the denial of their motion for leave to appeal the Orders to the Divisional Court. They are not seeking leave to appeal the Orders to this court, rather they are seeking leave to appeal the order of the Divisional Court. How does a stay of that order (denial of leave to appeal) give rise to a stay of the underlying orders? . Louis v. Poitras
In Louis v. Poitras (Ont CA, 2020) the Court of Appeal considered a motion to stay pending appeal (the underlying proceeding was a leave to appeal application of a Divisional Court order re-instating a jury notice):III. THE GOVERNING TEST[1]
[15] The principles applicable on a motion to stay an order pursuant to r. 63.02(1)(b) are well-known. In RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, the Supreme Court of Canada articulated, at p. 334, a three-part test for obtaining a stay of a judgment pending appeal: (1) is there a serious question to be tried (i.e., to be determined on the appeal); (2) will the moving party suffer irreparable harm if the stay is not granted; and (3) does the balance of convenience favour granting the stay?
[16] The factors are not watertight compartments; the strength of one may compensate for the weakness of another: Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A.), at p. 677. As well, they are interrelated in the sense that the overriding question is whether the moving party has shown that it is in the interests of justice to grant a stay: BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 283 O.A.C. 321, at para. 16; Circuit World, at p. 677.
[17] As put by the authors of Sopinka and Gelowitz on The Conduct of an Appeal, 4th ed. (Toronto: LexisNexis, 2018), at §2.187, the factors to be considered by a motion judge “are generally designed to assess the prejudice to the parties if the order sought is granted or refused.”
[18] Since this is a stay motion in the context of a motion for leave to appeal to this court, to the standard RJR-MacDonald factors must be added a consideration of the principles governing applications for leave to appeal from orders of the Divisional Court, set out in Sault Dock Co. Ltd. v. Sault Ste. Marie (City) (1972), 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479 (C.A.).
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V. SECOND FACTOR: IRREPARABLE HARM
The governing principles
[49] The irreparable harm stage of the analysis focuses on the harm the moving party may suffer if the stay is not granted: RJR-MacDonald, at pp. 340-341. A court must ascertain whether a refusal to grant the 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: RJR-MacDonald, at p. 341. Irreparable, in this sense, refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured: RJR-MacDonald, p. 341. Irreparable harm may occur where the failure to grant a stay would render any subsequent appeal moot: Sopinka and Gelowitz, at §2.192.
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VI. THIRD FACTOR: BALANCE OF CONVENIENCE
The governing principles
[62] The final component of the RJR-MacDonald stay test requires a determination of which of the two parties will suffer the greater harm from the granting or refusal of the stay, pending a decision on the merits: at p. 342. The harm which might be suffered by the responding party is dealt with at this stage of the analysis: RJR-MacDonald, at p. 341. The factors which must be considered in assessing the balance of inconvenience are numerous and will vary in each individual case. . Belton v. Spencer
In Belton v. Spencer (Ont CA, 2020) a single judge the Court of Appeal was faced with a stay motion [under R63.02(1)(b)], within a leave to appeal motion, of an order below that struck a jury notice, in a trial that was to begin shortly (thus, if successful, re-instating the jury notice and requiring a trial adjournment). The test on the stay motion was the same as that for an interlocutory injunction:[20] The principles applicable to a motion to stay an order pursuant to r. 63.02(1) are well-known. In RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334, the Supreme Court of Canada articulated a three-part test for obtaining a stay of a judgment pending appeal: (1) is there a serious question to be tried (i.e., to be determined on the appeal); (2) will the moving party suffer irreparable harm if the stay is not granted; and (3) does the balance of convenience favour granting the stay?
[21] These components of the test are not watertight compartments; the strength of one may compensate for the weakness of another: Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A.), at p. 677. As well, they are interrelated in the sense that the overriding question is whether the moving party has shown that it is in the interests of justice to grant a stay: BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 283 O.A.C. 321, at para. 16; Circuit World, at p. 677.[22] As put by the authors of Sopinka and Gelowitz on The Conduct of an Appeal, 4th ed. (Toronto: LexisNexis, 2018), at §2.187, the factors to be considered by a motion judge “are generally designed to assess the prejudice to the parties if the order sought is granted or refused.”
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