The Applicant, one of the Plaintiffs, Access Mortgage Investment Corporation (2004) Limited (Access Mortgage), brought an Application under Rule 14.48 for a Stay Pending an Appeal of the Order of a Justice which vacated an earlier Order of the Court of Queen’s Bench. Access Mortgage and a number of other persons were investors in a syndicated loan arranged by the Defendant, Arres Capital Inc (Arres). Arres managed the collection of loan repayments but the investors determined that substantial improper deductions were made, and the investors commenced an Action against Arres to recover those funds. An Order was sought and obtained without any notice to the investors which, amongst other things, directed that remaining condominium units be sold. The issue on the Appeal was whether either of the Undertakings as to Damages were sufficient as a matter of law, given the factual matrix of the case.

Justice McDonald noted that Rule 14.48 is the successor to Rule 508 of the former Rules. The Court observed that a Stay Pending Appeal may only be granted if the Applicant satisfies the Court that: there is an arguable issue to be determined on Appeal; that the Applicant will suffer irreparable harm if the Stay is not granted; and that the balance of convenience favours the granting of the Stay. In the result, McDonald J.A. held that the Applicant satisfied the three requirements of the tripartite test, and granted an Order to stay the Court of Queen’s Bench Order pending the determination of the Appeal.