SANTORO v BANK OF MONTREAL, 2018 ABCA 264
14.48: Stay pending appeal
The Applicant, Santoro, applied to the Court of Appeal for a Stay pending the Appeal of an Order granted by the Chambers Justice. A Master had granted an Order of foreclosure on the Applicant’s home as well as an Order dismissing the Applicant’s Application to file a Counterclaim. The Chambers Justice dismissed the Applicant’s Appeals of both Orders.
The Respondent, Bank of Montreal, opposed the Application on the basis that the dismissal of the Applicant’s Stay Application by the Court of Queen’s Bench is a procedural bar to applying for the same relief from the Court of Appeal and also on the basis that the Applicant had not met the legal test for a Stay.
The Court stated that Rule 14.48 is a “full answer” to the Respondent’s first contention. Rule 14.48 states that a Stay Application can be made to a single Appeal Judge regardless of whether a previous Application has been made to a lower Court, and regardless of whether a previous Application was successful. The Court then stated the three-part test for obtaining a stay. The Court is to consider: (i) whether there is a serious question to be determined in the sense of a claim that is not frivolous or vexatious; (ii) whether the applicant would suffer irreparable harm if the stay is refused; and (iii) an assessment of the balance of convenience based on which party would suffer the most harm from the granting or refusal of a stay. The Court also clarified that a stay may be granted even where the test is not satisfied if “exceptional circumstances” exist. Applying the three-part test, the Court found that the first element was met; the Applicant’s claim on appeal was not frivolous or vexatious. The Applicant’s claim that the granting of an Order while she was not present was improper did have some legal authority underpinning it. Moreover, the Respondent’s claim that it was entitled to remedies beyond the land securing the debt was questionable.
However, the Court was less convinced that the Applicant would suffer irreparable harm if the Respondent was permitted to demand possession of the Applicant’s home. The Court stated that it was likely that any harm suffered by the Applicant would be compensable in damages. Nevertheless, the Court ruled that in the circumstances, a stay was warranted provided that the Applicant continuously complied with conditions including making regular mortgage payments to the Respondent. The Application was granted.View CanLII Details