The Applicant sought, and the Court granted, a Stay of a development permit (the “Development Permit”) pursuant to Rule 14.48.

Citing RJR MacDonald, Strekaf J.A. stated that, to be granted a stay pending appeal, the Applicant must establish that: (1) there is a serious question 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.

Strekaf J.A. held that a stay pending an appeal is a discretionary remedy, and the fundamental question is whether a stay is just and equitable in all the circumstances of the case. It may be granted if exceptional circumstances exist.

With respect to the first part of the test, the Court noted that the threshold to establish a serious question to be determined on appeal is low. Strekaf J.A. held that the threshold was met as the Applicant had been granted permission to appeal.

The second part of the test requires that the applicant demonstrate they will suffer irreparable harm if a stay is not granted. Irreparable refers to the nature of the harm, not its magnitude. It is harm that cannot be quantified in monetary terms or cannot be cured. The Court noted that irreparable harm is generally demonstrated if benefit sought in the appeal would be permanently lost in the absence of a stay. Strekaf J.A. was satisfied that the Applicant had established he would suffer irreparable harm if the development proceeds and the Development Permit was ultimately set aside.

The final factor requires that the Court consider whether the balance of convenience favoured granting the stay. Having considered the parties’ submissions, Strekaf J.A. was satisfied that the balance of convenience favoured the granting of the stay, and moreover that it was just and equitable to grant the stay pending Appeal.