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Civil and Administrative
Litigation Opinions
for Self-Reppers


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Ontario and Canada
Appeal Court Dicta

Stays - Setting Aside

. Padathe v. Lee

In Padathe v. Lee (Div Court, 2023) the Divisional Court considered a stay motion, this against a dismissal of a motion to extend time to appeal, which is heard on standard the RJR-Macdonald test:
Motion for a Stay

[14] The test for a stay is derived from the Supreme Court of Canada decision in RJR Macdonald Inc. v. Canada (A.G.), 1994 CanLII 117 (SCC), [1994] 1 SCR 311:
(a) is there a serious issue to be tried;

(b) will the moving party suffer irreparable harm if the stay is not granted?

(c) does the balance of convenience favour granting or refusing a stay?
[15] As noted above, I am satisfied that the moving party has established irreparable harm, and the landlord has conceded this point. Thus, this decision focuses on the first and third branch of the test for a stay.
. Kilian v. CPSO

In Kilian v. CPSO (Div Court, 2023) the Divisional Court cited a test for setting aside a s.106 stay [really a set-aside 'standard of review' (SOR)], which is the same as an SOR for discretionary decisions:
[37] The Applications Judge’s decision to impose a temporary stay on this matter was an exercise of discretion under section 106 of the CJA. In BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 518, the Court set out the standard that must be met to set aside a motions judge’s granting of a stay at paragraph 10:
[3] The remedy available under s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43, which provides that a court may stay any proceeding on such terms as are just, is discretionary. The motions judge’s decision will only be set aside if the exercise of his or her discretion is based upon a wrong principle, a failure to consider a relevant principle or a misapprehension of the evidence: Mobile Mini Inc. v. Centreline Equipment Rentals Ltd. (2004), 2004 CanLII 22309 (ON CA), 190 O.A.C. 149 (C.A.), at para. 2.


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