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Appeals - Stay Pending Appeal (2)

. Tovmasyan v. Petrosian

In Tovmasyan v. Petrosian (Ont CA, 2022) the Court of Appeal cited a test for stay pending appeal and related case law:
[6] In Ogden Entertainment Services v. United Steelworkers of America, Local 440 (1998), 1998 CanLII 1441 (ON CA), 38 O.R. (3d) 448 (C.A.), at p. 449, this court articulated the test applicable to a request for a stay of an order or judgment pending the hearing of an appeal:
In determining whether a stay should be granted pending appeal, the appropriate test to be applied is that set out in RJR-MacDonald Inc. v. Canada, 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385. This test is the same as the test for an interlocutory injunction. Generally, the court must decide whether the interests of justice call for a stay.

In determining whether a stay should be granted, regard must be had to the judgment under appeal and a strong case in favour of a stay must be made out. The court must proceed on the assumption that the judgment is correct and that the relief ordered was properly granted.
....

[9] The preliminary assessment of an appeal’s merits on a motion to stay often applies the low threshold that an appellant need only demonstrate that the appeal is not frivolous or vexatious. However, where, as a practical matter, the rights of the parties will be determined by the outcome of the stay motion, this court may give significantly more weight to the strength of the merits of the appeal: Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761, 142 O.R. (3d) 481, at para. 10.
. Paschel v. Paschel

In Paschel v. Paschel (Ont CA, 2017) the Court of Appeal sets out the test for granting a stay of the Order pending appeal:
[9] My colleague, Hourigan J.A., recently summarized the test for a stay in this context in Zafar v. Saiyid, 2017 ONCA 919 (CanLII), at paras. 17-18:
The test for staying an order pending appeal under r. 63.02 of the Rules of Civil Procedure, requires the court to consider the following factors: (1) a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried; (2) it must be determined whether the applicant would suffer irreparable harm if the application were refused; and (3) an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits: Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A. [In Chambers]), at para. 8; Warren Woods Land Corp. v. 1636891 Ontario Inc., 2012 ONCA 12 (CanLII) [In Chambers], at para. 1.

These three factors are not watertight compartments; the strength of one may compensate for the weakness of another. The overarching consideration is whether the interests of justice call for a stay: International Corona Resources Ltd. v. LAC Minerals Ltd. (1986), 21 C.P.C. (2d) 252 (Ont. C.A.); Longley v. Canada (Attorney General), 2007 ONCA 149 (CanLII), 223 O.A.C. 102 [In Chambers], at paras. 14-15.
. Dhatt v. Beer

In Dhatt v. Beer (Ont CA, 2020) the Court of Appeal sets out the test for stay pending appeal:
[15] The overarching consideration in whether to grant an application for a stay pending appeal is whether doing so is in the interests of justice. Three factors are considered: (1) whether, on a preliminary assessment, the appeal raises a serious question, recognizing that this is a “low threshold”; (2) whether the applicant would suffer irreparable harm if the application were refused; and (3) the balance of convenience, namely which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. The factors are not watertight; the strength of one may compensate for weakness on another: Zafar v. Saiyid, 2017 ONCA 919, at paras. 17-19.
. Arctic Cat, Inc. v. Bombardier Recreational Products Inc.

In Arctic Cat, Inc. v. Bombardier Recreational Products Inc. (Fed CA, 2020) the Federal Court of Appeal considered a stay pending appeal motion by the defendants to a patent infringement injunction (it failed on the second leg of the test: irreparable harm):
[10] To stay the Federal Court’s judgment, the appellants must satisfy the tri-partite test outlined in RJR –MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385, at page 334 [RJR­MacDonald]. They must establish to this Court’s satisfaction that there is a serious issue to be tried, that they will suffer irreparable harm if the stay is not granted and that the balance of convenience favours granting the stay. All three questions must be answered in the affirmative, and failure on any single question is fatal to the motion for the stay. The standard of proof is a balance of probabilities, and the burden of proof lies on the appellant throughout (Novopharm Limited v. Janssen-Ortho Inc., 2006 FCA 406, 358 N.R. 155 at paras. 8, 11).

[11] The respondent submits that there is one real question before this Court. Should the Federal Court’s anti-infringement injunction be stayed? It argues that Arctic Cat has shown no irreparable harm for the monetary terms of the Order and does not address the balance of convenience.

A. Serious Issue to be Tried

[12] Generally, the rule on a motion for a stay is that the Court conducts a preliminary investigation of the merits. The threshold for seriousness is "“a low one”" and" “liberal”". The moving party needs only show that it is "“neither vexatious nor frivolous”" (RJR­MacDonald, at p. 337).

....

[18] Turning to the second part of the test, in RJR­MacDonald, at page 341, the Supreme Court has stated that "“irreparable harm”" refers to the nature of the harm suffered rather that its magnitude. It is harm either which cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.

[19] To establish irreparable harm, the appellants must adduce clear and non-speculative evidence that irreparable harm will follow if the motion for the stay is denied. It may not be simply based on assertions (United States Steel Corporation v. Canada, 2010 FCA 200, 191 A.C.W.S. (3d) 707, at para. 7).

[20] Instead, "“there must be evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted”" (Glooscap Heritage Society v. Canada (National Revenue), 2012 FCA 255, at para. 31 [Glooscap]; see also Dywidag Systems International, Canada, Ltd. v. Garford Pty Ltd., 2010 FCA 232 at para. 14; Canada (Attorney General) v. Canada (Information Commissioner), 2001 FCA 25, 268 N.R. 328 at para. 12; Laperrière v. D. & A. MacLeod Company Ltd., 2010 FCA 84, 402 NR 341 at para. 17; Janssen Inc. v. Abbvie Corporation, 2014 FCA 176, 242 ACWS (3d) 11 at para. 46).
. Volk v. Volk

In Volk v. Volk (Ont CA, 2020) the Court of Appeal sets the test for whether a stay should be granted pending appeal:
[9] The question whether a stay should be ordered is governed by the three inquiries set out in RJR-Macdonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311. The moving party must show that:
a) There is a serious question to be tried;

b) The moving party will suffer irreparable harm if the stay were refused; and

c) The balance of convenience favours granting the stay.


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