The Applicants applied for a Stay pending Appeal an Order of a Case Management Justice. In that Order, one of the two Applicants was required to submit for Questioning, while the other Applicant, the Office of the Child and Youth Advocate (the “OCYA”), was required to produce records from 2004. The OCYA was not a party to the underlying Action. 

The Applicants argued that the Case Management Justice erred in law by: (1) concluding that the provisions in the Child and Youth Advocate Act, SA 2011, c C-11.5 (the “CYAA”) regarding production of records and Questioning did not apply retroactively; and (2) misapplying Rules 5.13 and 5.17(d), which address production of third party records and the right to question a party respectively.

In dismissing the Respondents’ argument that the Appeal was frivolous, the Court found that the Applicants had raised serious questions as to whether the procedural provisions in the CYAA applied to the Respondents’ requests for records and Questioning, and whether Rules 5.13 and 5.17(d) were properly applied. Further, the Court found that the Applicants had established a likelihood of irreparable harm as the Appeal would be moot if the Applicants were required to comply with Questioning and production requirements, which could not be undone. The Court also found that the Stay was not significant and that the balance of convenience favoured the granting of a Stay considering all of the circumstances.

Based on the above analysis, the Court granted the Application.