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Stays - Federal Court. Wilson v. Meeches
In Wilson v. Meeches (Fed CA, 2023) the Federal Court of Appeal (Stratas JA) expounds on the Federal Courts, mootness, stays and speed:B. Postscript
[19] This case does not stand alone. Sometimes fast-moving events render important matters moot: for a recent, prominent example, see Peckford v. Canada (Attorney General), 2023 FCA 219.
[20] As a result, some occasionally blame courts. They say that questionable, harmful and fast-moving conduct can happen before the courts can stop it. They say that relief in courts is slow and unavailable. On occasion, others say similar things about the Federal Courts system based on assertions, not credible evidence: see, e.g., Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, [2019] 2 S.C.R. 467 at para. 66 and R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409 at paras. 57-61, both roundly criticized by this Court in Brown v. Canada (Citizenship and Immigration), 2020 FCA 130, [2021] 1 F.C.R. 53 at paras. 157-159 and Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108, 174 C.P.R. (4th) 85 at para. 22.
[21] These statements are untrue. In the Federal Courts system, things can and do move fast, especially when a party asks us to go fast. For us, “access to justice” is much more than an attractive slogan in a tweet or a lofty phrase in a news release. It has been a call to action. And, for a long time, plenty of action there has been. See the article by Professor Gerard Kennedy, “The Federal Courts Advantage in Civil Procedure” (October 31, 2023), online: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4619359.
[22] To this end, for the benefit of the profession and to further access to justice, some practical observations might now assist.
[23] In a case like this, two fundamental principles, oft-forgotten, are the starting point:. A decision of a first instance court or an administrative decision-maker takes effect as soon as it is rendered, unless the decision or legislation says otherwise; and
. Absent an order staying, enjoining or suspending the decision, it can be implemented, even in the face of an appeal or judicial review. [24] These principles mean that, absent agreement, a party challenging the decision on appeal or judicial review who wants to prevent the decision from being implemented must bring a motion for a stay or injunction to the court where the decision is being challenged.
[25] In some cases, the decision can be implemented quickly; thus, the party must move right away, asking for expedited determination and proposing an expedited schedule both for the motion and the appeal or judicial review itself. Doing otherwise—such as not seeking expedition, not proposing a schedule, or asking for a case conference—slows things down.
[26] If a request to expedite seems, at least at first glance, arguable, often the Court will issue procedural directions for the stay and expedite motion to hurry it along. And once the filings for the motion are complete, the Court tries to act quickly: see for example the prompt response to the stay motion discussed in paragraphs 10 and 11, above.
[27] Sometimes a party might suffer serious harm before we can decide the motion. To address that, the party should seek an interim stay: a short-term, temporary, emergency stay designed to preserve matters before the court decides the stay and expedite motion. If the period of restraint proposed in the interim stay is brief—and it usually is—often the supporting affidavit and the written representations for the interim stay can be short and to the point. As well, the brevity of the restraint can often tip the balance of convenience in favour of granting the interim stay.
[28] In rare circumstances of extreme urgency, an even faster measure is possible: the interim interim stay. Interim interim stays preserve the status quo during the brief time before an interim stay can be put in place. For an example, see the Order dated July 2, 2017 in Bell Canada et al. v. Lackman, file A-202-17. Because the stay sought is exceedingly short, the supporting affidavit and the written representations can sometimes be even shorter and more to the point. In fact, in the highly unusual circumstances of Lackman, including the nature of the decision sought to be restrained, the credible representations and undertakings of counsel in a letter persuaded this Court to grant the interim interim stay.
[29] This Court is “accessible 24 hours a day, [every day of the] year, from coast to coast for urgent applications, in both official languages”: Brown at para. 159. When necessary, this Court can act quickly outside of normal working hours, even on the evening of a quiet public holiday: see Order dated January 1, 2023 in Canada (Commissioner of Competition) v. Rogers Communications Inc., file A-286-22 (prompted by submissions on the evening of December 31, 2022); see also Order dated July 2, 2021 (issued at 1:45 a.m. after a two hour hearing) in Canada (Commissioner of Competition) v. Secure Energy Services Inc. et al., file A-185-21. “When necessary” is key: urgency must be demonstrated.
[30] Sometimes litigants seek directions from the Court on how to proceed. This is futile. Motions for directions, available in narrow circumstances in Rule 54 of the Federal Courts Rules, S.O.R./98-106, are not a means of getting free legal advice from the Court. The parties themselves must figure out the civil procedure and the litigation strategy: Bernard v. Canada (Revenue Agency), 2015 FCA 263, 479 N.R. 189 at paras. 37-47; Olumide v. Canada, 2016 FCA 287 at paras. 14-23. Smart parties go one step further: they prepare their stay and expedite material before the first-instance decision comes down, just in case it goes against them and they have to act right away.
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