Stay pending appeal

Fontaine v. Canada (Attorney General), 2012 ONCA 206 deals with stays pending appeal and the test for such stays (oddly, the author was involved in  such a motion this week):

 

[30]     The principles that govern motions for stays under rules 63.01(1) and 63.02(1) are familiar.  Brief reference to some of their features will suffice.

 

[31]     Courts have interpreted rule 63.01(1) narrowly. To qualify as an order “for the payment of money” under the rule, the order or applicable term must create a fixed debt obligation: Longley v. Canada (Attorney General) (2007), 223 OAC 102 (Ch’rs), at para. 11. The debt obligation created must be actual, not prospective or contingent on some other determination or satisfaction of various conditions precedent: Longley, at para. 12.

 

[32]     Where a party invokes rule 63.02(1) to stay an order pending disposition of an appeal, courts apply a three-stage test to determine whether a stay should be entered. Stated in short form, the components of the test are:

 

·                    serious question

 

·                    irreparable harm

 

·                    balance of convenience

 

See, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334.

 

[33]     The first component, whether there is a serious question to be determined on the appeal, requires a preliminary assessment of the merits of the appeal: RJR-MacDonald Inc., at p. 334.

 

[34]     The preliminary assessment of the merits begins with a presumption of correctness of the decision under appeal: Ogden Entertainment Services v. United Steelworkers of America, Local 440 (1998), 38 O.R. (3d) 448 (C.A.), at p. 450. The onus is on the moving party to establish a case for a stay: International Corona Resources Ltd. v. Lac Minerals Ltd. (1986) 21 C.P.C. (2d) 252 (Ont. C.A.- Ch’rs), at p. 255. The threshold to be met in connection with this first component of the test is a modest one:  Horsefield v. Ontario (Registrar of Motor Vehicles) (1997), 35 O.R. (3d) 304 (C.A. – Ch’rs), at p. 311; RJR-MacDonald Inc., at p. 337. The moving party must demonstrate that the appeal is not frivolous or vexatious: Longley, at para. 16; International Corona, at p. 255.

 

[35]     The irreparable harm component has to do with the nature, not the magnitude of the harm: RJR-MacDonald Inc., at p. 341. It refers to harm that cannot be quantified in monetary terms or that cannot be cured, for example, because one party cannot collect damages from the other: RJR-MacDonald Inc., at p. 341.

 

[36]     The balance of convenience constituent of the test involves a determination of which of the parties will suffer the greater harm from the granting or refusal of the stay pending the disposition of the appeal on the merits: RJR-MacDonald Inc., at p. 342. The factors relevant for consideration in determining where the balance of convenience settles varies from one case to the next: RJR-MacDonald Inc., at pp. 342-343.