LYMER (RE), 2018 ABCA 368


1.3: General authority of the Court to provide remedies
1.5: Rule contravention, non-compliance and irregularities
14.5: Appeals only with permission

Case Summary

The Applicant sought permission to appeal two Orders: (1) an Order declaring the Applicant a vexatious litigant and imposing Court access restrictions (the “Vexatious Litigant Order”); and (2) a sanction Order of 30 days’ imprisonment, consequent to an earlier contempt finding (the “Sanction Order”) (collectively, the “Orders”). In his Memorandum of Argument, but not in his Application (filed the same day), the Applicant sought stays of both of the Orders (the “Stay Requests”). The Respondents submitted that because the Applicant failed to properly set out the Stay Requests in the Notice of Application, the Stay Requests were not properly before the Court.

Justice Schutz noted that, when dealing with the preliminary issue of the Applicant’s failure to specify the Stay Requests in his Application, such irregularities are not fatal to an Application provided there is no surprise or prejudice to the responding party: Rules 1.3(2) and 1.5(4). Her Ladyship found that in this instance, there was no surprise or prejudice to the Respondents given that the Applicant’s Memorandum was filed the same day as the Application, and clearly set out the Stay Requests.

Schutz J. found that the test for permission to appeal the Orders under Rule 14.5 requires that (a) there is an important question of law or precedent, (b) there is a reasonable chance of success on Appeal, and (c) the delay will not unduly hinder the progress of the Action or cause undue prejudice. Without a review of these factors, Justice Schutz found that the Applicant had met the test for permission to appeal.

Turning to the test for granting a Stay pending Appeal, Justice Schutz enumerated the threefold test, namely: (1) there is an arguable issue to be determined on Appeal; (2) the Applicant will suffer irreparable harm if the stay is not granted; and (3) the balance of convenience favours granting a stay. The Applicant’s counsel advised that he would not be pressing for a Stay of the Vexatious Litigant Order but that if a Stay was not granted in respect of the Sanction Order, the Applicant would have no recourse for the time spent in custody if that decision was ultimately overturned on Appeal. Schutz J. agreed and noted that the Applicant had met the test for a Stay pending Appeal, and that if the Stay was not granted, the Appeal of the Sanction Order would be rendered nugatory. As such, Justice Schutz ordered that the Applicant be released from the Edmonton Remand Centre as soon as practicably possible.


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