Stay pending appeal

Granite Mortgage, 2011 MBCA 59 contains a helpful review of the law regarding a stay pending appeal:

 

2                     In Labossiere et al. v. The Estate of Remi Joseph Labossiere, 2011 MBCA 38 (CanLII), 2011 MBCA 38, I said (at para. 10):

 

The principles applicable to this court granting a stay of an order pending appeal have been discussed in a number of cases.  See, e.g., Child and Family Services of Western Manitoba v. K.B. et al., 2006 MBCA 48 (CanLII), 2006 MBCA 48, 205 Man.R. (2d) 31 (at para. 26):

 

The general principles applicable to stays require a determination of three matters:

 

1.  is there a serious question to be argued on appeal,

 

2.  would the applicant suffer irreparable harm if the stay is refused, and

 

3.     on a balance of convenience, who would suffer greater harm from the granting or refusal of the stay.

 

(See RJR-MacDonald Inc. et Imperical [sic] Tobacco Ltd. v. Canada (Procureur général), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, and Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), 1987 CanLII 79 (SCC), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R. (2d) 241.)

 

3                     The order of Abra J. was made at a hearing at which the applicant’s spouse, Michael Jurcevic, spoke on her behalf (as he did here).  She argues (and her ground of appeal is) that Abra J. prevented her representative “from entering evidence and testimony pertinent to the matter.”

4                     The onus is on the applicant to satisfy all three elements of the stay requirements outlined above.  The burden on the applicant is heavy, as there is a presumption in favour of the correctness of the judge’s decision (see Gateway Packers Ltd. v. Greyhound Canada Transportation Corp., 2004 MBCA 38 (CanLII), 2004 MBCA 38 at para. 5).

5                     As to the first and third elements, for present purposes I give her the benefit of any doubt.

6                     It is not necessary to decide whether there is a serious question to be argued on appeal.  There is less than complete evidence (from both parties) on exactly what transpired at the hearing prior to the making of the order, and that may present real difficulties for the applicant when the case is heard on appeal.  I will assume for these purposes only, but without so finding, that the affidavit evidence filed for the applicant shows a serious question for appeal.

7                     I will also assume, for present purposes, that the applicant would suffer greater harm than the respondent if a stay was denied.

8                     It is on the question of irreparable harm that the stay application clearly fails.  Irreparable harm has been said to be harm that is not susceptible or is difficult to be compensated in damages (see Gateway Packers at para. 5).  In my view, the applicant has not shown that she would suffer irreparable harm if the stay is refused.