Procedure - Stay of Proceeding in the Court of Appeal.

A concise statement of the argument, law, and authorities relied upon;

Stay of Proceedings

1.                       Rules of Court, Rule 62.26, is the Rule used for a Stay of Proceeding in the Court of Appeal.

62.26 Stay of Proceedings

(1) Unless ordered otherwise, an appeal does not

(a) operate as a stay of execution or of proceedings under the decision or order appealed from, or

(b) invalidate any intermediate act or proceeding.

(2) A motion for a stay of execution or a stay of proceedings may be made before the judge appealed from, the Court of Appeal or a judge of the Court of Appeal.

(3) On a motion for a stay of execution or a stay of proceedings, the Court of Appeal or judge may

(a) if a question arose at the trial or hearing which is appropriate for submission to the Court of Appeal,

grant a stay,

(b) if a stay of execution or a stay of proceedings may cause the respondent to lose the benefits of the verdict

or judgment, impose terms to secure the respondent’s interests, and

(c) impose any other terms necessary to prevent prejudice to the

respondent.

2.                       In C.D. v. A.B., 2004 CanLII 43691 (NB CA) J.C. MARC RICHARD, J.A. Court of Appeal of New Brunswick provided the following regarding Stay of Proceedings, which was restated in DHP v PLP (M), 2012 CanLII 78463 (NB CA), M.W.M. v. H.L.M., 2009 CanLII 74704 (NB CA) and Bourque v. Bourque, 2005 CanLII 26694 (NB CA):

[26]                                   Courts generally determine whether it is just and equitable to grant a stay pending appeal “by applying the well-known three-prong test formulated in  Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), 1987 CanLII 79 (SCC), [1987] 1 S.C.R. 110 … and RJR-MacDonald Inc. and Imperial Tobacco Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311: (1) Does the appeal pose a serious challenge to the decision in the court below? (2) Will the applicant suffer irreparable harm without a stay? (3) Does the balance of convenience favour the order sought?”: see Moncton (City) v. Steldon Enterprises Ltd. et al., [2000] N.B.R. (2d) (Supp.) No. 3 (C.A.) per Drapeau J.A. (now Chief Justice of New Brunswick) who then observed that “[t]he first branch of the test is referred to in Rule 62.26, while the second and third branches have been formulated by the courts to provide a principled framework for the exercise of discretion contemplated by the rule.”

 [30]                                   …. irreparable harm in the sense of the term as set out by Sopinka and Cory JJ. in RJR-MacDonald at p. 341: 

“Irreparable” refers to the nature of the harm suffered rather than its magnitude.   It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.

C.D. v. A.B., 2004 CanLII 43691 (NB CA) para 26 and 30

Now one must explain/answer the following questions to the Court so that a judgement may be rendered in one’s favor: 

(1) Does the appeal pose a serious challenge to the decision in the court below? 

(2) Will the applicant suffer irreparable harm without a stay? 

(3) Does the balance of convenience favour the order sought?”