January 4, 2024
It is a classic Jackson Browne song of course, but a “stay” in court terminology is an order of a court directing that a prior court order not be enforced until some later time, usually the conclusion of an appeal. Stays may also be available where there is not a prior court order, to freeze enforcement rights under mortgages or leases, or for other reasons.
In Ontario, appealing an order automatically stops enforcement of a monetary judgment, but does not prevent enforcement of other provisions (such as a commercial eviction, or sale or possession of property), pending appeal. To obtain a stay of terms of an order other than for the payment of money, a motion must be brought.
A stay is a lot like a temporary injunction, so perhaps not surprisingly, the test is the same.
 In RJR-MacDonald Inc. v. Canada (Attorney General),  1 S.C.R. 311, at p. 334, the Supreme Court of Canada outlined a three-part test for obtaining a stay of a judgment pending appeal:
(1) a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried;
(2) it must be determined whether the applicant would suffer irreparable harm if the application were refused; and
(3) an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.
 These factors are not to be considered in isolation of each other. In other words, they are not watertight compartments. The strength of one may compensate for the weakness of another while considered against the backdrop of the overarching consideration: do the interests of justice call for a stay…
Each provision of this test leads to a history of complex prior decisions (precedents) that clarify what the test means, when it applies, and when it does not apply. Many of them expand upon general principles, while others are fact specific.
Ultimately, the catch-all “interests of justice” makes predicting when a stay will be granted more of an art than a science. Knowing this history and being able to apply it to YOUR situation however will improve your odds of obtaining, or opposing, a stay.
WHAT WEILERS LLP CAN DO TO HELP YOU
At Weilers LLP due to our combination of 75 years of labour injunctions plus commercial litigation, we bring substantial experience with injunctions to our litigation experience. We have a unique perspective that we can apply to a request for a stay.
If you think you need a stay or are confronted with a motion to stay your relief, give us a call, we may be the right lawyers for you.
If you already have a lawyer and they are hesitant to deal with a motion for a stay, we would be pleased to work with them as counsel to assist them, or to argue just the stay motion. We play well with others. Even other lawyers.