Appeals - Automatic Stay - Lifting
Antunes v. Limen Structures Ltd. (Ont CA, 2016)
In this Court of Appeal case the respondent (and successful plaintiff at trial) sought to partially lift the automatic stay of monetary judgment on the filing an appeal. The appellant had first appealed part of the judgment, but when the respondent sought to lift the stay regarding the balance of the judgment (so it could enforce it) the appellant/defendant amended their Notice of Appeal (outside of the original 30-day timeline but as of right since the appeal had not yet been perfected) to add the previously unappealed issues, thus bringing them more firmly under the automatic stay. The Court set out the test for lifting the automatic stay as follows:
The Test for Lifting a Stay
 I accept that the stay of execution imposed by rule 63.01 is intended to offer some protection to an appellant against payments which it might not eventually be obligated to make, thus putting it to the uncertainties of recovery. In Stein v. Sandwich West (Township) (1994), 1994 CanLII 10599 (ON CA), 16 O.R. (3d) 321 (C.A.), at pp. 322-3, Carthy J.A. observed:
If I make an order in this case, there will be a risk to the appellants and the only measure of that risk likes in an assessment of the merits of the appeal on liability. It is not necessary to find the appeal frivolous if I can be satisfied that on the basis of what is presented to me, at this stage of the proceedings, the chances of success are so modest that they are overwhelmed by the hardship to the applicants. Justice Carthy found “nothing in the wording of rule 63.01(3) [now rule 63.01(5)] to prevent the exercise of the court’s discretion under any circumstances, including where the risk is imposed on the appellants.”
 These cases require the court to consider a number of contextual factors, including: the grounds of appeal; the parties’ position at trial; what has happened since the trial; the general circumstances of the case, including the trial judge’s reasons; and the probable delay between trial and appeal that cannot be controlled by the parties, as noted in Todd Archibald, Gordon Killeen & James C. Morton, Ontario Superior Court Practice, 2015 (Markham, Ont.: LexisNexis, 2014), at p. 1740.
 This court described the test for lifting the stay in SA Horeca Financial Services v. Light, 2014 ONCA 811 (CanLII) (per Weiler J.A. (In Chambers)), at para. 13:
Rule 63.01(5) gives an appellate court judge discretion to lift a stay imposed by rule 63.01(1) “on such terms as are just.” In considering whether to lift a stay, the court should have regard to three principal factors: i) financial hardship to the respondent if the stay is not lifted; ii) the ability of the respondent to repay or provide security for the amount paid; and iii) the merits of the appeal. In Keays v. Honda Canada Inc., 2007 ONCA 564 (CanLII), Armstrong J.A. (In Chambers) considered lifting the stay in a wrongful dismissal action pending appeal to the Supreme Court of Canada. He partially lifted the stay on the basis that the respondent had made out a significant case for financial hardship if the stay were not lifted. He recognized that it was very unlikely that the respondent would be able to repay or provide security for any amount paid to him.
 While Armstrong J.A. expressed difficulty in assessing the merits of the appeal in Keays, because he was not provided with a list of the grounds, he noted, at para. 23, that the decision on liability for wrongful dismissal “is based on findings of fact made by the trial judge which were subject to appellate review on the basis of palpable and overriding error – a very difficult standard to meet.”
 In Keays, Armstrong J.A. lifted the stay to the extent of $60,000 while the appeal proceeded in the Supreme Court of Canada. (I note in passing that Armstrong J.A.’s assessment was vindicated when the Supreme Court allowed Honda’s appeal, but only in relation to the damages award for the conduct of the dismissal and the award of punitive damages. The wrongful dismissal damages were upheld: Keays v. Honda Canada Inc., 2008 SCC 39 (CanLII),  2 S.C.R. 362.)