Are All Orders Automatically Stayed on Appeal?

If you’re new to an appeals practice, it may be a good idea to familiarize yourself with the rules around “stays” of an Order under appeal.

Are All Orders Automatically Stayed on Appeal?

The answer is no.

In accordance with Rule 63.03(1) of the Rules of Civil Procedure, the delivery of a notice of appeal automatically stays, until the disposition of the appeal, any provision of the order for the payment of money (with the exception of a provision that awards support or enforces a support order).

That means that any other aspect of an Order under an appeal is not automatically stayed and can only be stayed by a further Order of the Court. That Order can be sought by way of a motion to (i) the Court whose decision is being appealed; or (ii) a Judge of the Court to which a motion for leave to appeal has been made or to which an appeal has been taken (see Rule 63.02(1)).

What is the test on a motion for a stay?

Whether an Order is to be stayed is determined by a holistic consideration of the factors identified in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, for assessing whether an interlocutory injunction should be granted, namely:

1. A preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried

Here, the Judge must be satisfied that the application is “neither vexatious nor frivolous” but the threshold is a “low one” and a judge should not engage in an extensive review of the merits.

2. It must be determined whether the applicant would suffer irreparable harm if the application were refused

“Irreparable” refers to the nature of the harm suffered rather than its magnitude. It is harm that cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.

3. An assessment of the balance of convenience must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision of the merits.

The three factors are not each pre-conditions that need to be satisfied. The factors also need not be analyzed independently. As the Ontario Court of Appeal put it in Zafar v. Saiyid, 2017 ONCA 919: “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…”

At the same time, the Ontario Court of Appeal also stated in Warren Woods Land Corporation v. 1636891 Ontario Inc. 2012 ONCA 12, that the factors of the test are interrelated and should be assessed holistically and that the “overriding question is whether granting the stay is in the interests of justice.”

Conclusion

Ultimately, a decision of whether to bring a motion for a stay should not be made lightly as to the extent that the motion is unsuccessful, any negative treatment from the Court (particularly in the first prong of the test) can be damaging to the overall appeal. Accordingly, the pros and cons must be carefully weighed before moving forward with a motion for a stay.