Civil Appeals/Chapter 8/MOTIONS FOR INTERIM RELIEF

CHAPTER EIGHT

8:0000 INTERLOCUTORY APPELLATE MOTIONS GENERALLY

8:1000 STAYS PENDING APPEAL

8:1100 Overview

8:1200 The Nature of a Stay Pending Appeal

8:1300 Availability of a Stay

8:2000 JURISDICTION TO GRANT A STAY PENDING APPEAL

8:2100 The Supreme Court of Canada

8:2110 Automatic Stay Pursuant to Section 65

8:2120 Stays by Order

8:2121 Stay Pending Determination of Leave Application

8:2122 Scope of Section 65.1

8:2200 The Federal Courts

8:2300 The Provincial Appellate Courts

8:2310 British Columbia and the Yukon

8:2320 Alberta, Northwest Territories and Nunavut

8:2321 Alberta

8:2322 Northwest Territories and Nunavut

8:2330 Saskatchewan

8:2340 Manitoba

8:2350 Ontario

8:2351 Overview

8:2352 Division of Jurisdiction Between the Trial Judge and the Appellate Court

8:2353 Stays of Administrative Proceedings

8:2360 Quebec

8:2370 The Maritime Provinces

8:2371 New Brunswick

8:2372 Prince Edward Island

8:2373 Nova Scotia

8:2374 Newfoundland and Labrador

8:3000 STAYS BY ORDER

8:3100 The Tripartite Test

8:3200 Exceptional Circumstances Test

8:3300 Discretion in Ordering a Stay Pending Appeal

8:3310 Conduct of the Applicant

8:3320 Other Discretionary Considerations

8:3330 Attaching Terms and Conditions

8:3331 Security For Judgment or Costs as a Condition for Granting a Stay

8:3332 Payment of Judgment

8:3333 Expediting the Appeal

8:3334 Undertakings

8:3335 Other Terms

8:3340 Partial Stays

8:3400 Step One: Does the Appeal Raise A “Serious Question”?

8:3410 Metropolitan Stores and RJR-MacDonald

8:3420 The Several Formulations of the Test

8:3430 Materiality, Relevance, and Particularity

8:3440 Standard of Appellate Review

8:3450 Exceptions to the “ Serious Issue” Threshold Test

8:3451 Final Determinations and Pure Questions of Law

8:3452 Stays of Injunctions No Longer Exceptions

8:3500 Step Two: Irreparable Harm to the Appellant

8:3510 Generally

8:3520 Meaning of “Irreparable Harm”

8:3530 Proof of “Irreparable Harm”

8:3540 No Irreparable Harm Found

8:3550 Irreparable Harm Found

8:3600 Step Three: Determining the Balance of Convenience

8:3610 Generally

8:3620 Weighing the Merits

8:3630 Taking Account of the Public Interest

8:3632 Public Interest Overriding

8:3633 Public Interest Not Overriding

8:3700 Determination of the Balance of Convenience in Particular Contexts

8:3710 Family Litigation

8:3711 Custody and Access

8:3712 Support Payments

8:3713 Division of Matrimonial Assets

8:3720 Commercial Litigation

8:3721 Generally

8:3722 Creditor-Debtor

8:3730 Monetary Judgments

8:3731 Generally

8:3732 Partial Stays

8:3740 Professional Discipline Appeals

8:3750 Interlocutory Orders

8:3751 Stay Denied

8:3752 Stay Granted

8:3800 Lifting and Varying Stays By Order

8:4000 AUTOMATIC STAYS PENDING APPEAL

8:4100 Automatic Stay Pursuant to Section 65 of the Supreme Court Act

8:4200 Rule 63.01 of the Ontario Rules of Civil Procedure

8:4210 Overview

8:4220 Order for the Payment of Money

8:4230 Lifting an Automatic Stay Generally

8:4231 Financial Hardship to the Respondent if Stay Not Lifted

8:4232 Ability to Repay

8:4233 Nature and Merits of the Appeal

8:4234 Other Discretionary Considerations

8:4240 Lifting a Stay in Family Property Cases

8:4300 Rule 15 of the Saskatchewan Court of Appeal Rules

8:4310 Overview

8:4320 Lifting the Automatic Stay

8:4321 The Factors to be Considered

8:4322 Custody Cases

8:4323 Division of Matrimonial Assets

8:4324 Sale and Preservation of Property

8:5000 SECURITY PENDING APPEAL

8:5100 Security for Costs Pending Appeal

8:5110 Purpose of Securing Costs of an Appeal

8:5120 Authority to Order Security for Costs

8:5130 The Supreme Court Act

8:5140 The Federal Courts

8:5150 The Provincial Courts’ Authority to Award Security for Costs

8:5151 British Columbia and The Yukon

8:5152 Alberta, the Northwest Territories and Nunavut

8:5153 Saskatchewan

8:5154 Manitoba

8:5155 Ontario and Prince Edward Island

8:5156 New Brunswick

8:5157 Nova Scotia and Newfoundland

8:5158 Quebec

8:5200 The Factors to Be Considered on a Motion for Security for Appeal Costs

8:5210 Overview

8:5211 Balancing the Competing Interests

8:5212 The Burden Of Proof

8:5220 The Financial Circumstances of the Appellant

8:5221 Generally

8:5222 Evidence of the Appellant’s Inability to Pay Costs of Unsuccessful Appeal

8:5223 Appeal by A Corporate Shell or Nominal Plaintiff

8:5224 Non-Residents

8:5230 Merits of the Appeal

8:5231 Where Posting Security Would Frustrate an Appellant’s Appeal

8:5232 The Merits Threshold

8:5233 Consideration of Merits in Setting Amount of Security

8:5240 Other Considerations in the Exercise of Discretion

8:5241 Conduct of Appellant

8:5242 Delay in Applying and Other Countervailing Conduct By a Respondent

8:5250 Amount of Security

8:5260 Non-Compliance with an Order to Provide Security for Costs on Appeal

8:5300 Security for Trial Costs

8:5310 Authority to Order Security for Costs of Trial

8:5320 Circumstances in which Security for Trial Costs Will Be Ordered

8:5321 Exceptional Nature of Such an Order

8:5322 Security of Trial Costs Ordered

8:5400 Security for Judgment Under Appeal

8:5410 Jurisdiction to Order Security for Judgment

8:5420 Factors to be Weighed

8:5421 Security for Judgment Ordered

8:5422 Security for Judgment Not Ordered

8:6000 OTHER INTERIM RELIEF

8:6100 Overview

8:6200 Interim Equitable Relief

8:6300 Interim Relief in Family Matters

8:6310 Generally

8:6320 Interim Maintenance Pending Appeal

8:6330 Custody and Access Pending Appeal

8:6400 Interim Relief From Incarceration

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