Eisler Estate v GWR Resources Inc 2020 BCCA 111 deals with the criteria involved when the Court of Appeal decides that there should be a stay of execution ordered pending appeal that prevents the successful litigant at trial from immediately becoming entitled to the fruits of their judgment.
The authority for a grant of stay of execution in’s found in sections 10(2) and 18 of the Court of Appeal act.
This power is discretionary and should only be exercised to prevent irremediable harm to the applicant, to preserve the subject matter of the litigation, or where other special circumstances arise. Roe, McNeil v McNeil (1994) 49 BCCA 247 at para.6
Since the successful litigant is presumptively entitled to the benefits of their judgment, the onus lies on the applicant and establish the right of a stay of execution Bancroft-Wilson v Murphy 2008 BCCA 498.
The question of whether to grant a stay of execution is determined through application of the three stage test set out in RJR-MacDonald Inc. v Canada ( 1994) one SCR 311:
- That there is some merit to the appeal in the sense there is a serious question to be determined;
- That irreparable harm would be occasion to the applicant. If the stay was refused; and
- On the balance, the inconvenience to the applicant. If the stay was refused would be greater than the inconvenience to the respondent of the stay was granted.
The ultimate question on any application for a stay of execution concerns the interests of justice. Cobum Nagra 2001 BCCA 607.
In determining whether the appeal is with or without merit, or has no reasonable prospect of success, the court is held that the threshold is a low one is generally met if the court is satisfied that the issues on appeal are neither frivolous and vexatious.
Balance of Convenience:
The balance of convenience stage involves a determination of which of the two parties will suffer the greater harm from the granting or the refusal to grant a stay of execution. Mission Creek Mortgage v Angleland holdings Inc. 2013 BCCA 146 at paragraphs 36 – 37