Wednesday, May 25, 2016

Stay pending leave to appeal to SCC in a civil matter

Livent Inc. v. Deloitte & Touche, 2016 ONCA 395:

[4]            This court discussed considerations on this kind of motion in Yaiguaje v. Chevron Corporation, 2014 ONCA 40. They are those set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at 334: (1) whether there is a serious question to be determined on the proposed appeal; (2) whether the moving party will suffer irreparable harm if the stay is not granted; and (3) whether the balance of convenience favours a stay. 

[5]            It has been held that these factors are not to be treated as watertight compartments and the strength of one may compensate for weaknesses of another. The overarching consideration is whether the interests of justice call for a stay. In BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust2011 ONCA 620, Laskin J.A. described the test as follows, at para. 16:

The moving party … must show that it has raised a serious issue to be adjudicated, that it will suffer irreparable harm if a stay is not granted, and that the balance of convenience favours a stay. These three components of the test 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.

See also Longley v. Canada (Attorney General) 2007 ONCA 149 at paras. 14-15.

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