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3.2 Common applications

Application for leave to appeal

Applications for leave to appeal are discussed in section 2.1.

Application for an extension of time

Applications for an extension of time are discussed in section 1.6.

Application for an order that no fees are payable

Applications for an order that no fees are payable are discussed in section 1.5.

Application for a stay of proceedings

The commencement of an appeal does not stop proceedings declared by the court or tribunal below. In general, the successful party is entitled to move forward according to the earlier judgment, even if the appeal has commenced. For example, if the plaintiff in a Supreme Court trial got a judgment that he was 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 judgment is reviewed by the Court of Appeal. 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. 18).

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, you must apply to the court that granted the order (either the Provincial Court or the Supreme Court) for a stay.

To bring a successful application for a stay of proceedings, you must show:

  1. that there is some merit to the appeal (i.e., that there is a serious question to be decided); and
  2. that the applicant would suffer irreparable harm if the stay were not granted.

Application for security for costs

The respondent may want to make an application for security for costs of the appeal, forcing the appellant to deposit money into Court to cover the respondent’s costs if the appeal is not successful.

To bring a successful application for security for costs, the respondent must show:

  1. the appeal does not have merit (i.e., is not likely to be successful);
  2. the appellant does not have adequate financial resources;
  3. the respondent would have difficulty collecting costs of the appeal; and
  4. the timeliness of the application (i.e., the appeal proceedings are not too far advanced).

In general, the court will consider granting an order for security of costs to prevent the appellant from pursuing a frivolous appeal at the respondent’s expense. If the respondent is granted an order for security for costs, the judge will determine the amount of money to be deposited. The appeal will usually be stayed until the security is posted.

Review Applications

If your application is dismissed and the judge does not grant you the order you wanted, you can apply to have the judge's decision reviewed by a division of three judges. To do this, you have to bring an application within 7 days of when your application was dismissed. Prepare an Application to Vary (Form 15) and an affidavit.

File at least 6 copies of the application and affidavit – 4 for use by the court, one copy for your own use, and one copy for each respondent. Serve a filed copy on each respondent.

Within 14 days of filing your application to vary the order, prepare a motion book (Form 16). File at least 6 copies – 4 for use by the court, one copy for your own use, and one copy for each respondent. Serve a filed copy on each respondent.

It is a good idea to ask the other party when they are available for the hearing. Then, ask the registrar to set a date for the hearing of your application and advise the respondent of the scheduled date.

Within 7 days of receiving your motion book, the other party must prepare a reply book. They must file at least 4 copies and serve a filed copy on each of the other parties.

For more information, see Rule 34.

For information on how to respond to an application, please see the previous page.

Legally reviewed: 2020/ Apr