KNELSEN SAND & GRAVEL LTD v HARCO ENTERPRISES LTD, 2021 ABCA 362
14.48: Stay pending appeal
14.68: No stay of enforcement
The Applicant applied for a Stay of Enforcement of a money judgment in favour of the Respondent pending the Applicant’s appeal of that decision.
Rule 14.48 allows a party seeking a Stay of Enforcement of a decision to apply to the Judge who granted the decision or to a single Appeal Judge. Rule 14.68 states that filing an Appeal or an Application for Permission to Appeal does not operate as a Stay of Enforcement unless otherwise ordered under Rule 14.48.
The Court set out the test for a Stay of Enforcement, which considers whether the:
1. Applicant’s claim presents a serious issue to be tried;
2. Applicant would suffer irreparable harm if relief were not granted; and
3. Applicant would suffer greater harm than the Respondent if relief were denied or would the harm to the Respondent from granting the Application exceed it.
The Court determined the Applicant met the elements of the three-part test. The Applicant raised a serious issue to be tried as it challenged a significant portion of the damages awarded at trial and sought judgment on its Counterclaim. The Applicant could suffer irreparable harm if the Stay were not granted if the Respondent seized specialized equipment that the Applicant needed to conduct its business. The Court also found that the balance of convenience favoured the Applicant and therefore granted a Stay of Enforcement pending Appeal.View CanLII Details