GRANTING A STAY PENDING APPEAL

When deciding whether to grant a stay, generally, the courts are to apply the same three-stage test as they do when deciding whether to order an interlocutory injunction.

RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334. 

This test requires the court to:

1.    make a preliminary assessment of the merits of the case to ensure that there is a serious question to be tried;

2.    determine whether the moving party would suffer irreparable harm unless the stay were granted; and

3.    determine which of the parties would suffer greater harm from the granting or refusal of the stay.

Because a stay is a discretionary remedy, the court may also consider the “clean hands” doctrine when deciding whether to order the stay:

 Authorson (Litigation Guardian of) v. Canada (Attorney General), 2006 CarswellOnt 9418 (C.A.), at para. 9; see also Morguard Residential v. Mandel, 2017 ONCA 177

In Morguard Residential v. Mandel, 2017 ONCA 177, a finding of bad faith on the part of the moving parties militated against the exercise of the court’s discretion to stay the Divisional Court Order.

Does the Court of Appeal have the Inherent Jurisdiction to Hear an Appeal of an Interlocutory Order?

The Court of Appeal for Ontario has no jurisdiction to hear an appeal from an interlocutory order.

In P.M. v. M.A., 2017 ONCA 6, the Court of Appeal rejected counsel’s argument that the Court had inherent jurisdiction or some type of residual jurisdiction to hear the appeal of an interlocutory order of the Superior Court.

The concept of inherent jurisdiction has been described as follows:

The inherent jurisdiction of the court is a virile and viable doctrine, and  has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particularly to ensure the observation of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them

"The Inherent Jurisdiction of the Court" (1970), 23 Current Legal Problems 27-28. In Halsbury's Laws of England, 4th ed. (London: Lexis-Nexis UK, 1973 -) vol. 37,at para. 14

The Court in P.M. v. M.A., 2017 ONCA 6 held that there must be a statutory basis for the Court to hear an appeal and counsel could not point to any.