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Appeals - Interim orders

. Tega Homes (Attika) Inc. v. Spencedale Properties Limited

In Tega Homes (Attika) Inc. v. Spencedale Properties Limited (Ont CA, 2022) the Court of Appeal considered an unusual appellate motion where the appellant, seeking to free real estate that was subject of a certificate of pending litigation and a writ of seizure and sale, sought to pay the trial award into court (in case they lost the appeal):
[14] To vacate the CPLs and Writ, the Appellants have brought these two related motions. In the appeal from the Judgment, the Appellants seek an order that, upon payment into court of the amount of the Judgment under r. 72.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the Writ would be expunged and the CPLs discharged from title. In the appeal from the CPL Order, they move to set aside that order pursuant to s. 134(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), which permits an appeal court to make “any interim order that is considered just to prevent prejudice to a party pending the appeal.”

[15] As a practical matter, the Appellants’ motions are joined at the hip, as the sale to Taggart cannot close unless the impediments of both the Writ and the CPLs are removed. The Appellants’ substantive argument is based on that linkage. They argue as follows:
. Rule 63.03(6) permits an appellate court judge to set aside a writ of execution where an appellant gives security satisfactory to the court;

. The Appellants are prepared to pay into court the amount of the Judgment, in respect of which the Writ was issued;

. If the court is prepared to set aside the Writ upon the payment into court of such an amount, then practical necessity dictates discharging the two CPLs registered against the Properties in order to enable the sale to Taggart to close. Such a discharge can be ordered under s. 134(1)(c) of the CJA, which authorizes an appeal court to “make any other order or decision that is considered just.” According to the Appellants, the CPLs should be discharged because Tega amended its pleading prior to trial to abandon any claim for an interest in the Properties and, without a claim for an interest in the Properties, the CPLs must be vacated: CJA, s. 103(6)(a)(ii).
. Sub-Prime Mortgage Corporation v. Kaweesa

In Sub-Prime Mortgage Corporation v. Kaweesa (Ont CA, 2021) the Court of Appeal held that a stay ordered by the trial court, defaulted upon, may be lifted by the appeal court under CJA s.134(2):
[43] The moving parties submit that, given the responding parties’ breach of the Stay Condition, the Temporary Stay should be lifted and a writ of possession should issue. They argue that since this matter is now before this court, Stinson J. is functus and lacks the jurisdiction to make such an order. Therefore, they submit that I have authority to grant the order sought as a single judge of the Court of Appeal, either by necessity or pursuant to s. 134(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), which provides as follows:
On motion, a court to which a motion for leave to appeal is made or to which an appeal is taken may make any interim order that is considered just to prevent prejudice to a party pending the appeal.
[44] I agree with the moving parties that CJA s. 134(2) authorizes an appellate court to remove a stay as an interim order pending an appeal: Paul M. Perell and John W. Morden, The Law of Civil Procedure in Ontario, 4th ed. (Toronto: LexisNexis Canada, 2020), at ¶12.160. As acknowledged by Laskin J.A. (in Chambers), the jurisdiction conferred by s. 134(2) may be exercised by a single judge of this court pursuant to s. 7(2) of the CJA: Hakim Optical Laboratory Ltd. v. 1570710 Ontario Ltd., 2010 ONCA 627, [2010] O.J. No. 4102, at para. 5.

[45] The jurisdiction under CJA s. 134(2) is broad, but it is not unlimited. The focus of any remedy provided under s. 134(2) must be on preventing prejudice in the context of the appeal and the interests of justice: Waxman v. Waxman (2003), 2003 CanLII 22440 (ON CA), 168 O.A.C. 217, at para. 21 (C.A.).

[46] The test for granting relief under s. 134(2) is the same as that for granting a stay pending appeal pursuant to r. 63.02(1): Abuzour v. Heydary, 2015 ONCA 249, 126 O.R. (3d) 101, at para. 24. It is based on the test for an interlocutory injunction set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334. Namely, it must be established that it is in the interests of justice to exercise the judge’s discretion to lift or remove the stay, given the relative strengths and weaknesses of the following criteria:
1) there is a serious question to be adjudicated on appeal;

2) the moving party would suffer irreparable harm if the relief were refused; and

3) the balance of convenience favours the moving party (i.e., the moving party would suffer greater harm if the relief were not granted than would the responding party if the relief were granted).
. 1476335 Ontario Inc. v. Frezza

In 1476335 Ontario Inc. v. Frezza (Ont CA, 2021) the Court of Appeal considered whether a court that does not have jurisdiction over an appeal nonetheless may make an order regarding related interim relief [considering CJA 134(2)]:
(2) Where the court does not have jurisdiction over the appeal, can it make an interim order pending the appeal?

[15] Having found that the order sought to be appealed is an interlocutory order which can only be appealed to the Divisional Court with leave of that court, the next issue that was argued was the motion for interim relief.

[16] Section 134(2) of the Courts of Justice Act states:
On motion, a court to which a motion for leave to appeal is made or to which an appeal is taken may make any interim order that is considered just to prevent prejudice to a party pending the appeal.
[17] I agree with Brown J.A. that where the court does not have jurisdiction to hear the appeal, it cannot make an interim order because such an order can only be made “pending the appeal”.

[18] There have been rare occasions in the past where an appeal has been wrongly commenced in this court and proceeded to an oral hearing before anyone realized that the appeal was in the wrong court, and where, on consent of all parties, the court has requested the authority of the Chief Justice of the Superior Court to sit as the Divisional Court in order to save time and cost: Courts of Justice Act, ss. 13 and 18; Tomec v. Economical Mutual Insurance Company, 2019 ONCA 839, 148 O.R. (3d) 433, at paras. 12-14.

[19] This is not an appropriate case to seek to apply this procedure. The appeal to this court was not brought by mistake. The appellants have their leave to appeal motion ready to proceed in the Divisional Court. The appellants may seek their interim relief from the Divisional Court, if they decide to proceed with the appeal to that court.


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