This was an Application to stay two Court of King’s Bench Orders pending an anticipated Application for Leave to Appeal to the Supreme Court of Canada. The Applicant’s Appeals to the Alberta Court of Appeal had been struck for failure to meet filing deadlines, and an Application to restore them was dismissed.

The Court noted that Applications to Stay enforcement of an Order pending Appeal are commonly brought under Rule 14.48. However, the Court held that Rule 14.48 is confined to Appeals to the Alberta Court of Appeal, as confirmed by Rule 14.1(1)(a), which defines “Appeal” for the purpose of Part 14. Because the underlying Appeals had been struck and no live Appeal was before the Court, Rule 14.48 did not apply.

Instead, Justice Grosse considered Section 65.1 of the Supreme Court Act, RSC 1985, c S-26, which authorizes either a Judge of the Supreme Court of Canada or a Judge of the Court appealed from to grant a Stay of proceedings pending a Leave Application. Under s. 65.1(2), a Stay may be granted before a Notice of Application for Leave is filed, but only where the party intends to apply for Leave and where delay would result in a miscarriage of justice. The Court emphasized that both elements must be supported by evidence.

Applying s. 65.1(2), Justice Grosse found the Applicant had not demonstrated a genuine intention to seek Leave, having filed no sworn evidence, providing no information about the questions on which he intended to seek leave, and offering no explanation for the delay, nor had he shown that any delay in obtaining a Stay would cause a miscarriage of justice. The Court further noted that the timing of the Leave Application was within the Applicant’s control, undermining any claim of prejudice arising from delay.

The Court also observed that, even if s. 65.1 applied, the Applicant would still need to satisfy the tripartite test governing Stays pending Appeal: (a) a serious question to be determined, (b) irreparable harm, and (c) balance of convenience. The Applicant failed to establish any arguable merit, irreparable harm, or new evidence supporting his allegations.

Accordingly, the Court held that neither Rule 14.48 nor s. 65.1 provided a basis for relief on the record before it, and dismissed the Stay Applications.