FREDERICO v CABRAL, 2026 ABCA 251

The Applicant husband applied for permission to appeal a Court of King's Bench decision overturning an Arbitration Award determining spousal support. If the permission to appeal was granted, the Applicant also sought a stay of the decision pending Appeal, pursuant to Rule 14.48(b).

Having determined the applicable test was met, the Court of Appeal granted the Application for permission to appeal.

Turning to the stay, Feth J.A. reviewed the RJR MacDonald test: (1) whether there was a serious question to be determined; (2) whether the Applicant would suffer irreparable harm if the Stay was not granted; and (3) whether the balance of convenience favoured granting the stay.

The Court granted a partial stay. Feth J.A. found that the test was met for a stay of the direction remitting the Arbitration issues to a new Arbitrator. In the permission to appeal analysis, Feth J.A. had already determined that the questions raised in the Appeal were reasonably arguable and that the Appeal was likely of interest to other persons or was generally important. These findings were sufficient to establish that there was a serious issue to be tried.

On the second and third legs of the test, the Court found that both parties would suffer irreparable harm if the stay was not granted and that the balance of convenience favoured the stay. Forcing the parties to proceed with a new Arbitration before the Appeal was decided would create unnecessary expense and effort that could be wasted if the Appeal succeeded and might heighten conflict between the parties.

However, Feth J.A. refused to stay the Appeal Costs Award or the setting aside of the Arbitration Costs Award. The Court found the Applicant failed to show irreparable harm. There was no evidence he would suffer any financial hardship if required to pay, or that the wife would not be able to repay the Costs Awards if the Appeal succeeded.