​Top 4 Considerations When Seeking A Stay Pending Appeal, Judicial Review

• Published date: 31 May 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Civil Law
• Law Firm: Torkin Manes LLP
• Author: Mr Marco P. Falco

In Ontario, the issue of whether a decision or order is stayed pending an appeal or judicial review depends on the interaction of several 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. By contrast, where a stay is automatic, the respondent may have good reason to want to lift it, pending the resolution of the appeal.

In deciding how or whether to seek a stay, parties must take into account some key considerations. These include:

1. What will obtaining a stay accomplish?

A party seeking a stay pending an appeal, motion for leave to appeal, or application for judicial review will want to consider its overall effect.

Broadly speaking, in Ontario, where an order is stayed, no steps may be taken pursuant to the underlying order or for its enforcement except by court order: 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: 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's or land registry's office: Rules, supra at Rule 63.03(3).

2. Is the stay automatic?

The governing statute may provide for an automatic stay of the underlying order upon the commencement of an appeal or judicial review.

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' (SFC Litigation Trust(Trustee of) v. Chan, 2018 ONCA 710, at para. 7).

The automatic stay under Rule 63.01(1) does not apply, however, where leave to appeal is required or where the lower court ordered non-monetary relief, in which case the appellant must apply to court for a stay: see Rule 63.02(1)(b).

Nor does the...