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Appeal Court Dicta

Stays - Stays Contrasted With Other Proceedings

. Flores v. Glegg

In Flores v. Glegg (Ont CA, 2022) the Court of Appeal comments on the stay provisions of CJA 106:
[31] The respondents sought dismissal or a permanent stay of the actions against them. The court’s inherent jurisdiction and s.106 of the Courts of Justice Act empower the application judge to stay the underlying actions permanently. Contrary to the appellant’s assertion that s.140 “does not provide any jurisdiction to outright stay a proceeding”, Ontario courts have accepted that s. 140 is not a “complete code” that precludes the court from making purposive ancillary orders: Peoples Trust Company v. Atas, 2018 ONSC 58, at para. 41, aff’d 2019 ONCA 359.
. Price et al v. Smith & Wesson Corp.

In Price et al v. Smith & Wesson Corp. (Div Ct, 2021) the Divisional Court considered whether the administrative doctrine of prematurity applies to civil court proceedings, finding that in this case the matter was best dealt with under stay principles (ie. RJR Macdonald preliminary injunction principles):
[23] Both parties have also put forward considerable law on the prematurity principles that this Court applies to appeals and judicial review applications arising from administrative tribunal decisions. The plaintiffs submit that the motion for leave to appeal is premature. The defendant submits that this is one of those exceptional cases that should proceed.

[24] This body of administrative law does not directly apply to this case. This case is civil litigation under the Courts of Justice Act, modified to some extent by the CPA. The question of when this Court will hear an appeal from an interlocutory decision is decided by applying the test for leave to appeal in Rule 62.02(4). That is the motion that the plaintiffs seek to stay.

[25] There is certainly some overlap between the considerations that arise in the prematurity law put forward by the parties and the principles that apply to this motion. However, the request for a stay of proceedings is more properly framed under Rule 63.02(1)(b) and s. 106 of the Courts of Justice Act, which give the Court the jurisdiction to stay the proceedings in this Court on such terms as are just. As a general matter, the injunction test applies, as set out in RJR MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, specifically (1) whether there is a serious issue to be decided; (2) whether to proceed would result in irreparable harm; and, (3) whether the balance of convenience favours a stay.
. Prince Edward County Field Naturalists v. Ostrander Point GP Inc.

In Prince Edward County Field Naturalists v. Ostrander Point GP Inc. (Ont CA, 2014) the court made the following salutory comments on the contrasting natures of stays and interlocutory injunctions:
[8] Ostrander argued that PECFN is not truly requesting a stay of the order of the Divisional Court under Rule 63.02(1) of the Rules of Civil Procedure, but is, in reality, seeking an interlocutory injunction prohibiting the operation of the REA. While the criteria for obtaining a stay and for obtaining an interlocutory injunction have common elements, a party seeking an interlocutory injunction is additionally required to provide an undertaking as to damages. PECFN has not done so.


[12] The criteria for obtaining a stay of an order pending appeal or an application for leave to appeal are well-known and not contested. The moving party must show (a) that it has raised, or will raise if leave is granted, a serious issue for consideration on appeal; (b) that it will suffer irreparable harm if a stay is not granted; and (c) that the balance of convenience favours such an order: RJR-MacDonald v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311. For leave to appeal to be granted, the proposed appeal must raise an issue of some public importance: Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479 (C.A.).
. Canada (Citizenship and Immigration) v. Canadian Council for Refugees

In Canada (Citizenship and Immigration) v. Canadian Council for Refugees (Fed CA, 2020) the Federal Court of Appeal distinguished between a stay pending appeal under the Federal rules of court and a Charter s.52 suspension of a declaration of invalidity:

[10] The parties agree that this Court can stay the Federal Court’s judgment on the authority of RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385, a decision of the Supreme Court. This Court can do so if it is satisfied that a three-fold test is met: an arguable appeal is present, irreparable harm will be suffered if the judgment of the Federal Court is not stayed, and a comparison of the hardships associated with staying the judgment, as opposed to letting it take effect, supports a stay.

[11] At the outset, the respondents object to the jurisdiction of this Court to determine this motion. They say that the Federal Court—after full argument and after full study of the evidence before it—rejected the Ministers’ request for a twelve-month suspension and granted only six months. The respondents say that if the Ministers wanted an extension of the six-month suspension period, they had to go to the Federal Court—not this Court—and ask the Federal Court to vary or change its decision under Rule 399(2)(a).

[12] This Court dismisses the jurisdictional objection. This Court has jurisdiction.

[13] At the root of the respondents’ jurisdictional submission is a wrong assumption. The respondents assume that the two Courts perform the same task—deciding whether to suspend the declaration of invalidity—and so the Court that first decided the matter, here the Federal Court, should have an opportunity to decide if an extension of time should be given. In fact, the two Courts perform different, independent tasks under different, albeit overlapping, legal tests.

[14] The Federal Court suspended the declaration of invalidity under the remedial authority of section 52 of the Constitution Act, 1982: Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679, 93 D.L.R. (4th) 1. In exercising this power, the Federal Court considered the "“effect of an immediate declaration on the public”" such as harms that might be caused: Schachter at 715-717 S.C.R. The harms must be significant enough to outweigh the need to immediately vindicate the rights of the Charter complaints. The Court weighs the evidence before it and, if appropriate, sets a period of suspension. As counsel for the respondents fairly conceded in oral argument of this motion, setting the period of suspension is an unscientific, imprecise task.

[15] This Court has an independent power stemming from a different source. It is not changing the Federal Court’s remedy under section 52 of the Constitution Act, 1982. Rather, it is exercising a power given to it by Rule 398(1)(b): "“where a notice of appeal of [a Federal Court judgment] has been issued”", it can "“order that [the Federal Court judgment] be stayed”" under the RJR-MacDonald test.

[16] The appellants are entitled to ask this Court to exercise its power under Rule 398(1)(b). They do not have to go first to the Federal Court and ask it to change its remedy by extending the six-month period.

[17] It is true that, as the Federal Court did in setting the six-month suspension period, this Court must perform the unscientific, imprecise task of weighing the evidence under the balance of convenience branch of the RJR-MacDonald test. But under the RJR-MacDonald test, this Court must do more than the Federal Court did: it must ensure there is an arguable appeal and the presence of irreparable harm.


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