The filing of an appeal or a request for judicial review cannot stop the execution of the order of the lower court or court.
In Ontario, whether a decision or order is stayed pending appeal or judicial review depends on a complex web of laws and rules of civil procedure.
Parties seeking or requesting leave to appeal or seek judicial review may be surprised to learn that there is no automatic stay of the underlying order, in which case a urgent request for such relief is required.
On the other hand, if the stay is automatic, the defendant may have good reason to want to lift it, pending the resolution of the appeal.
In navigating these rules, parties must take into account many key considerations. These include:
1. What is the effect of a stay?
A party seeking a stay pending an appeal, a motion for leave to appeal or an application for judicial review will want to consider its effect and determine whether it is worth it.
Generally, in Ontario, when an order is stayed, no action can be taken under the underlying order or for its enforcement, except by court order: see Civil Procedure Rules, RRO 1990, cC43 (the “rules”), at r. 63.03(1).
However, a stay does not prevent settlement of the underlying order, nor will it prevent the assessment of costs in the underlying case: see Rulesabove to rule 63.03(2).
In addition, a stay does not prevent the issuance of a writ of execution or the filing of the writ in a sheriff’s or land registry office: see Rulesabove to rule 63.03(3).
2. Is there an automatic call waiting hold?
Applicable law may provide for an automatic stay of the underlying order upon commencement of an appeal or judicial review. This is the first place the lawyer should look.
In Ontario, for appeals from lower court decisions, the general rule (with several notable exceptions) is that service of a notice of appeal automatically stays an order for “payment of money”, other than a support order. or an enforcement order: see Rules of Civil Procedure, RRO 1990, Reg. 194 to rule 63.01(1).
The automatic suspension of an order requiring the payment of a sum of money, other than alimony,[traduction]“secures the appeal process by preserving the appellant’s access to money to fund the appeal and continuing to have possession of it if the appeal is successful”: see Antunes v. Limen Structures Ltd., 2016 ONCA 61 at para. 11.
This general rule of automatic stay under rule 63.01(1), however, does not apply where leave to appeal is required or where the lower court has ordered non-monetary relief, in which case the appellant must seek the Court to suspend: see Rule 63.02(1)(b).
The automatic stay also does not apply to default judgment orders: see Rule 63.01(2).
As a respondent to an appeal, if the order you were successful in getting is automatically stayed pending the appeal, you may want to consider bringing a motion to “stay” the suspension.
Rule 63.01(5) allows a judge of the Court before which the appeal is brought to order that the automatic suspension does not apply.
As a general rule, motions to lift automatic stays should be limited to “cases of demonstrable and unusual hardship for the respondent and where a reasonable measure of protection can be granted to the appellant”. The Court considers the “general circumstances of the case” and gives weight to three factors:
- The financial difficulties of the defendant if the suspension is not lifted;
- The defendant’s ability to repay or provide security for the amount paid; and
- The merits of the appeal.
See SFC Litigation Trust (Trustee of) v. Chan, 2018 ONCA 710 at paras. 7-10.
3. Does the appellant need a conditional sentence order?
If there is no automatic stay, the appellant or plaintiff may need to determine whether the Court has jurisdiction to order a stay pending appeal or application for judicial review.
The applicable law, if it provides a right of appeal or judicial review, will usually state whether the Court has the power to stay the underlying order or decision.
For appeals or applications for judicial review to which the Legal Powers Exercise Act, RSO 1990, cS22 (the “LPCR”) applies, and where applicable law does not provide otherwise, or the tribunal or court does not otherwise order, an appeal from a decision of a tribunal to a court or another appeal body operates during the stay: see SPPAabove in para. 25(1).
However, the same does not apply to applications for judicial review, which are not considered “appeals” for the purposes of the stay provisions under the LLP: see SPPA, above in subsection 25(2).
For appeals from lower court decisions, Rule 63.02 grants the court whose decision is to be appealed, or the court hearing the appeal or the application for leave to appeal, to stay an interlocutory order “on terms righteous”: see Rule 63.02.
4. What is the criteria for an appeal pending stay / motion for leave to appeal / judicial review?
Where there is no automatic stay of the underlying order, the appellant (or applicant for judicial review) will need to bring a motion for a stay.
Where leave to appeal is required, an interim stay may be granted, without prejudice to the position of the parties on a motion for a stay of appeal pending appeal if leave to appeal is granted, where the party applicant can demonstrate:
- There is some merit (a serious matter to be judged) with respect to the leave petition;
- The plaintiff will suffer irreparable harm if a stay is not granted; and
- The balance of convenience favors the granting of a stay.
See Vecchio Longo Consulting Services Inc. v. Aphria Ltd., 2021 ONSC 5953, par. 3; Urbancorp Toronto Management Inc. (Re), 2021 ONCA 613 at para. 10, citing RJR-MacDonald Inc. v. Canada (PG),  1 SCR 311.
The above test, which is similar to the test applicable to interlocutory injunctions generally under the 1994 Supreme Court of Canada decision, RJR-MacDonald Inc. v. Canada (PG), supraalso applies to non-automatic suspensions pending appeal in Ontario, where leave to appeal is not required: see Budarick v. Brudenell, Lyndoch and Raglan (Township) (Integrity Commissioner), 2021 ONSC 8034, par. 4, citing Yaiguaje c. Chevron Corporation, 2014 ONCA 40, para. 3.
The same test also applies to motions for a stay pending an application for judicial review.: see Audio Visual Services (Canada) Corp. vs. Ontario (Labour Relations Board), 2019 ONSC 1167, para. 2.
Beware of unpaid appeal counsel
The risk of an unsophisticated lawyer making a fatal error as to the necessity, right or effect of a stay is high.
Some of the most common mistakes litigants make when seeking review of an underlying order involve ignoring:
- If a stay is automatic or if the authorization of the Court is required to obtain it;
- Does the applicable law give the Court the power to grant a stay? Where
- If the criterion of stay, if leave is required, is met.
The lawyer must approach all these questions with caution. An error could very well infringe the rights of your client. If necessary, attorneys should contact an experienced appellate attorney to determine what to do before a serious error is made.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.