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RTA - Appeals - Stay. Rosen v. Reed
In Rosen v. Reed (Div Court, 2024) the Divisional Court dismissed a motion for a (non-automatic) stay, here in an RTA context where the appellant had lost the appeal (thus the auto-stay was lifted) but was seeking a time extension for a CJA s.21(5) panel (second?) review (set aside) of that order.
Here the court assesses the stay motion:[3] The test for a stay is as follows (RJR MacDonald v. Canada (AG), 1994 CanLII 117 (SCC), [1994] 1 SCR 311:1. Is there a serious issue to be tried (in this context, is there an arguable ground for the intended review motion)?
2. Will Mr Rosen suffer irreparable harm if the stay is not granted?
3. Does the balance of convenience favour granting the stay? ....
No Irreparable Harm
[22] An eviction, by itself, is not “irreparable harm” within the meaning of the test for a stay of an eviction order. The totality of the circumstances must be assessed to determine whether the harm is “irreparable” in a particular case. . 146 Osgoode Street Holdings v. Unknown
In 146 Osgoode Street Holdings v. Unknown (Div Court, 2023) the Divisional Court considered a motion to stay an eviction order (after a dismissed RTA 210 appeal, where the automatic stay was lifted) under the typical RJR MacDonald stay/interlocutory-injunction test. On the issue of irreparable harm' the court suggested that, on the proper evidence, eviction could constitute such irreparable harm:[27] On the materials before me, I am unable to make a finding that the tenant will suffer irreparable harm if a stay is not granted. The fact that a tenant is required to move does not, in every case, constitute irreparable harm. In this case, I have no information as to the tenant’s efforts to secure alternate accommodation. Indeed, it would appear that the tenant has made no such efforts because her position is that she has a “right” to remain in her unit, notwithstanding her non-payment of rent. The tenant also maintains she cannot secure alternate accommodation because she is a woman fleeing abuse. The LTB Member took into account the tenant’s vulnerable situation in delaying the eviction. The motion judge, too, ordered that the stay of the eviction order be lifted on February 28, 2023, one month after the release of his reasons for decision. I note that the tenant filed her motion for a stay with the court, without first serving it on the landlord, on the last possible day – February 27, 2023.
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