Stay pending appeal

Rule 63.02 (1) provides:

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.

In deciding whether to grant a stay by order pending appeal, the test for is the same as that for an interlocutory injunction, namely:

(i) Is there a serious issue to be decided?

(ii) Would compliance with the order under appeal cause irreparable harm?

(iii) Where does the balance of convenience lie?

R.J.R. MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385

Longley v. Canada (Attorney General), 2007 ONCA 149, [2007] O.J. No. 929 (QL)

There are no specific requirements that must be met to show there is a serious issue. The threshold is a low one. The court must simply make a preliminary assessment of the merits of the appeal. Once satisfied that the appeal is neither vexatious nor frivolous, the court should proceed to consider the second and third prongs of the test, even if it is of the opinion that the appellant is unlikely to succeed. A prolonged examination of the merits is generally neither necessary nor desirable.

RJR MacDonald, supra, at para. 55

At the second stage of the test the only issue to be determined is whether a refusal to grant relief could so adversely affect the appellant's interests that the harm could not be remedied if the eventual result on appeal does not accord with the result of the stay motion.

RJR MacDonald, supra, at para. 63

Irreparable harm has been defined by the Supreme Court of Canada as follows:

"Irreparable" 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, usually because one party cannot collect damages from the other.

RJR MacDonald, supra, at para. 64

Where a successful appeal will become moot or nugatory if a stay is denied, it must be very clear to the court considering whether to grant a stay that there will be prejudice to the respondents that outweighs harm to the appellant, or that one of the other two prongs of the test for granting a stay favours the respondent, in order for the court to refuse to grant a stay pending appeal.

Gaudet v. Ontario (Securities Commission), (1990), 13 O.S.C.B. 1809, [1990] O.J. No. 689 (QL) (Div. Ct.)

The balance of convenience is to be determined by establishing which party will suffer the greater harm in granting or refusing the stay pending the determination of the matter in issue. The relevant factors in a balance of convenience assessment include the strength of the appeal, which of the parties has acted to alter the balance of their relationship and so affect the status quo, and any other factors affecting the balance of justice and convenience. The factors must be assessed in a unified context.

RJR MacDonald, supra, at para. 62