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Appeals - Stay Pending Leave to Appeal

. 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.).

....

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.

....

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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