Stays Pending Appeal And Judicial Review: What You Need To Know

• Published date: 27 May 2022
• Subject Matter: Litigation, Mediation & Arbitration, Court Procedure, Trials & Appeals & Compensation, Civil Law
• Law Firm: Torkin Manes LLP
• Author: Mr Marco P. Falco

The commencement of an appeal or application for judicial review may not stop the enforcement of the lower Court or tribunal's order.

In Ontario, the issue of whether a decision or an order is stayed pending an appeal or judicial review depends on a complex web of statutes and civil procedure rules.

Parties who seek to, or seek leave to, appeal or begin an application for judicial review, may be surprised to learn that there is no automatic stay of the underlying order, in which case an urgent motion for such relief is required.

On the other hand, if a stay is automatic, the respondent 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, motion for leave to appeal, or application for judicial review will want to consider its effect and whether it is worth the effort.

Broadly speaking, in Ontario, where an order is stayed, no steps may be taken under the underlying order or for its enforcement except by Court Order: see Rules of Civil Procedure, R.R.O. 1990, c.C.43 (the "Rules"), at Rule 63.03(1).

However, a stay does not prevent the settling of the underlying order, nor will it prevent the assessment of costs of the underlying matter: see Rules, supra at Rule 63.03(2).

Further, a stay does not prevent the issuance of a writ of execution or the filing of the writ in a sheriff or land registry's office: see Rules, supra at Rule 63.03(3).

2. Is There an Automatic Stay Pending Appeal?

The governing statute may provide for an automatic stay of the underlying order upon the commencement of an appeal or judicial review. This is the first place counsel should look.

In Ontario, for appeals from lower Court decisions, the general rule (with several notable exceptions) is that the service of a notice of appeal automatically stays an order for the "payment of money", other than a support order or support enforcement order: see Rules of Civil Procedure, R.R.O. 1990, Reg. 194 at Rule 63.01(1).

The automatic stay of an order requiring the payment of money, other than support payments, "safeguards the appeal process by preserving the appellant's access to the money to fund the appeal and continued possession of it in the event that the appeal is successful": see Antunes v. Limen Structures Ltd., 2016 ONCA 61 at para. 11.

This general automatic stay rule under Rule...