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.