2.2 What to do if leave to appeal is required
Do you need leave to appeal?
Beginning an appeal does not stop the proceedings or the decisions that the court or tribunal below made. In general, the successful party is allowed to move forward according to the earlier judgment, even if the appeal has begun.
For example, if the plaintiff in a Supreme Court trial got a judgment that they were entitled to damages arising out of a motor vehicle accident, the defendant may want to apply to the Court of Appeal and ask that the previous order be “stayed” (stopped) until the Court of Appeal reviews that decision. Until a stay application is granted, the order for damages may be enforced according to the usual process.
A judge in chambers has the discretion to grant a stay of proceedings when it is necessary to preserve the subject matter of the litigation (e.g., property that otherwise would be sold) until the Court of Appeal has made its final decision in the case (Court of Appeal Act, s. 33).
However, the Court of Appeal does not have jurisdiction to order a stay under the Family Law Act. Pursuant to s. 234 of that Act, the appellant must apply to the court that granted the order (either the Provincial Court or the Supreme Court) for a stay.
Read the Rules
s.234 Order under appeal remains in effect, Family Law Act
To bring a successful application for a stay of proceedings, the person asking for the stay must show:
- That there is some merit to the appeal (i.e., that there is a serious question to be decided)
- That you would suffer irreparable harm if the stay were not granted.
- That the balance of convenience favours the court granting the stay.
Read the Rules
Rule 20 sets out the procedure for applying for a stay of proceedings.
To apply for a stay of proceedings, you must:
- Obtain a hearing date for your application from the registry. It is a good idea to communicate with the respondent(s) or other parties first to find a date that works for everyone.
- Prepare a notice of application (Form 4) and indicate that you are seeking a stay of proceedings;
- Prepare an application book using the completion instructions.
- File the notice of application and application book at least 5 business days before the date set for your application. (note that these materials must be filed 10 business days before the date set for your application if an application for leave to appeal will be heard at the same time.)
- Pay the court filing fee when you file your notice of application.
Find The Form
The appellant will serve a copy of the filed materials on the respondent at least 5 business days before the date set for the application or, if the application for leave to appeal will be heard at the same time, at least 10 business days before the date set for the application.
