DOUS v VISKAT TUBULAR TECHNOLOGIES INC, , 2023 ABCA 216
14.48: Stay pending appeal
14.8: Filing a notice of appeal
The Applicant filed a Notice of Appeal of Decision dismissing an Amended Statement of Claim (the “Dismissal”) as against the Respondents. The Court of Appeal Case Management Office informed the Applicant to file an Application for extension of time to Appeal as he had filed outside of the Appeal period. Subsequently, the Chambers Judge issued a Costs Award arising from the Dismissal. The Applicant filed an Amended Civil Notice of Appeal with respect to both the Dismissal and the Costs Award under Rule 14.8. The Applicant also filed an Application to Stay the Costs Award pending the outcome of the Appeal under Rule 14.48.
The Court considered the factors in Cairns v Cairns, 1931 CanLII 471 (AB CA), for an Application to extend time to file a Notice of Appeal. The Applicant submitted that the action of filing the initial Notice of Appeal mere days after the expiry period and the fact that he ordered the transcripts of the Chambers Judge decision were indicative of his bona fide intention to Appeal. Justice Ho concluded that the Applicant had established a bona fide intention to Appeal and met the relatively low threshold of having “some merit” to his Appeal. The extension of time to Appeal was granted.
The Court considered the Application to stay the Costs Award under Rule 14.48 and noted that the legal test to be met for a Stay is outlined in RJR-MacDonald Inc v Canada (AG), 1994 CanLII 117 (SCC),  1 SCR 311 at 334-335. The Applicant submitted that he would suffer irreparable harm if a Stay of the Costs Award is not granted because of his poor financial circumstances. The Respondents submitted that they were legally entitled to the benefits of the Costs Award and a Stay would deprive them of the ability to enforce the Cost Awards. Justice Ho concluded that the Applicant had not demonstrated that he would suffer irreparable harm if a Stay was not granted. Additionally, Justice Ho also noted that the Applicant had not provided meaningful documentary or third-party evidence substantiating his claims about his financial position and the implications of enforcement of the Costs Award. Therefore, the Applicant’s request for a Stay of the Costs Award pending Appeal under Rule 14.48 was denied.View CanLII Details