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.