The City of Edmonton applied for a Stay of an Order which, amongst other things, severed a Claim for a permanent Injunction preventing the closure of the Edmonton City Centre Airport from other relief sought by the Edmonton Flying Club pending the hearing of an Appeal. Justice Bielby noted that the test for a Stay of Execution or Stay of Proceedings pending Appeal was analogous to the tripartite test considered on an Application for an Interlocutory Injunction.

The Respondents conceded that the first part of the test was met. There was a serious issue arising on the underlying Appeal.

Regarding the second factor, the City argued that it would suffer irreparable harm if the Injunction proceeded to Trial prior to the damages Claim because of the risk of duplicate Questioning in the separate Action by the Flying Club. The City also argued that potentially different findings of fact and liability on the same issues might be made in separate proceedings and the issue of a permanent Injunction might become moot. Bielby J.A. rejected the City’s arguments and held that the risk of overlapping Questioning or joint Case Management was one of avoiding expense, rather than irreparable harm. Further, the Court noted that the risk of conflicting findings of fact on the same issue was always a concern; however, the Court stated that the chance of that occurring prior to the resolution of this Appeal was virtually nil.

On the third part of the test, the City argued that the balance of convenience favoured the imposition of the Stay. The City might be Questioned on the same issues twice and, if the Appeal was successful, time and cost inefficiencies were likely. The Court noted that if the Flying Club was successful when the Appeal was heard, and it obtained a permanent Injunction, there would be no damages action Trial, given that the Flying Club had undertaken to abandon that Claim if it obtained the Injunction. Bielby J.A. noted that the Appeal was set to proceed within six weeks and, considering the time typically required for document disclosure and Questioning, the latter would likely be at a preliminary stage by the date the Appeal was resolved. Based on this, it was held that the balance of convenience favoured the refusal of a Stay. The Application for a Stay of the Order of the Chambers Judge was dismissed.