In civil litigation, the ultimate goal is to obtain a final order granting a remedy for the successful party. But what if the final order is under appeal, and the appellant stands to suffer prejudice from the order’s effects while they wait for their day in appeals court? What recourse is available to appellants to limit their harm from an order that, in their view, was incorrect in the first place?
The Ontario Court of Appeal was recently tasked with answering this question in Temagami (Municipality) v. Temagami Barge Limited, 2024 ONCA 859. The respondents successfully brought an application for a permanent injunction which prohibited the appellants from conducting certain commercial activities on their property. While the parties’ appeal was waiting to be heard before the Ontario Court of Appeal (the “Court”), these prohibitions would remain in effect, to the detriment of the appellants’ business. As such, the appellants brought a motion to the Court to stay the application judge’s order pending the hearing of their appeal.
The Court began its analysis by setting out the following test, which must be satisfied on a motion to stay an order pending appeal:
[7] The test for staying an order pending appeal is the same as the test for an interlocutory injunction. The court should consider whether the moving party has shown that: (1) there is a serious issue to be determined; (2) if a stay is not granted, the moving party will suffer irreparable harm; and (3) the balance of convenience favours a stay.
[8] After considering these factors, the court will determine whether the overall interests of justice call for a stay. The strength of the moving party’s argument on one stage may compensate for its weakness on another. [citations omitted]
In this case, the Court found that the appellants satisfied stage one of the test set out in paragraph 7, above. However – the Court held that the appellants’ evidence before it regarding the second and third stages was less compelling. Upon considering this evidence and its application to the relevant legal principles, the Court found that the overall interests of justice did not favour a stay of the order giving rise to this appeal, particularly if it was heard on an expedited basis. The Court therefore dismissed the appellants’ motion, but ordered an expedited hearing of their appeal.
Parties who are appealing an order that will have an interim adverse effect on themselves or their businesses should consider a motion to stay the order pending their appeal. The test on a motion to stay an order pending appeal is a relatively high bar to meet, but parties to an appeal should be aware that this interim remedy is available.
The lawyers at Gilbertson Davis LLP have experience with business litigation and injunctions and urgent remedies. Please contact us for an initial consultation.
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