3.2 Common applications
Application for leave to appeal
Application for an extension of time
Application for an order that no fees are payable
Application for a stay of proceedings
Beginning an appeal does not stop the proceedings or the decisions that the court or tribunal below made. In general, the successful party is allowed to move forward according to the earlier judgment, even if the appeal has begun.
For example, if the plaintiff in a Supreme Court trial got a judgment that they were entitled to damages arising out of a motor vehicle accident, the defendant may want to apply to the Court of Appeal and ask that the previous order be “stayed” (stopped) until the Court of Appeal reviews that decision. Until a stay application is granted, the order for damages may be enforced according to the usual process.
A judge in chambers has the discretion to grant a stay of proceedings when it is necessary to preserve the subject matter of the litigation (e.g., property that otherwise would be sold) until the Court of Appeal has made its final decision in the case (Court of Appeal Act, s. 33).
However, the Court of Appeal does not have jurisdiction to order a stay under the Family Law Act. Pursuant to s. 234 of that Act, you must apply to the court that granted the order (either the Provincial Court or the Supreme Court) for a stay.
To bring a successful application for a stay of proceedings, you must show:
- That there is some merit to the appeal (i.e., that there is a serious question to be decided)
- That you would suffer irreparable harm if the stay were not granted.
- That the balance of convenience favours the court granting the stay.
To apply for a stay of proceedings, you must:
- Obtain a hearing date for your application from the registry. It is a good idea to communicate with the respondent(s) or other parties first to find a date that works for everyone.
- Prepare a notice of application (Form 4) and indicate that you are seeking a stay of proceedings;
- Prepare an application book using the completion instructions.
- File the notice of application and application book at least 5 business days before the date set for your application (note that these materials must be filed 10- business days before the date set for your application if an application for leave to appeal will be heard at the same time.)
- Pay the court filing fee when you file your notice of application.
Serve a copy of the filed materials on the respondent at least 5 business days before the date set for your application. Or, at least 10 business days before the date set for the application if the application for leave to appeal will be heard at the same time.
Serve or Service of Documents: The delivery of a document, which has been filed with the court to another party to the proceeding, in accordance with the Rules.
An application for a stay of proceedings is often brought together with an application for leave to appeal (discussed in section 2.2). In that case, you only need to file one notice of application and one application book for use in both applications. However, you will need to follow the timeline for bringing an application for leave to appeal: the notice of application and the application book must be filed and served within 30 days of filing your notice of appeal or at least 10 business days before the date set for your application, whichever is earlier.
Application for security for costs
The respondent may want to make an application for security for costs of the appeal, forcing the appellant to deposit money into Court to cover the respondent’s costs if the appeal is not successful.
The respondent must follow the procedure set out in Rule 58.
To bring a successful application for security for costs, the respondent must show why a payment of security should be ordered based on the following:
- The merits of the appeal
- The timeliness of the application (i.e., the appeal proceedings are not too far advanced)
- Whether it is in the interests of justice to order security for costs.
The appellant must show that the interests of justice require that security not be ordered against them.
In general, the court will consider granting an order for security of costs to prevent the appellant from pursuing a frivolous appeal at the respondent’s expense. If the respondent is granted an order for security for costs, the judge will determine the amount of money to be deposited. The appeal will usually be stayed until the security is posted.
An application may also be made to require you to deposit money to cover the amount of the judgment appealed from. The application for such an order is like an application for security for costs. The onus, however, is on the respondent to show that it is in the interests of justice to require the posting of security for the trial costs.
Applications to vary or cancel an order (Review Applications)
If the judge dismisses your application or does not grant you the order you wanted, you can apply to have the judge's decision reviewed by a division of three judges.
A review is not a new hearing of your application – you will not get to re-argue your original application. Instead, you will need to show that the judge who denied your application made a mistake in law or misunderstood an important fact.
How to apply to vary an order
- Not more than 7 days after the date the chambers judge made the order you wish to have varied, you must:
- Obtain a hearing date from the registry for your application to vary the judge’s order. It is a good idea to communicate with the other parties first to find a date that works for everyone.
- Prepare a notice of application to vary an order of a justice (Form 8).
- File the notice of application.
- Pay the court filing fee when you file your application.
- Serve a copy of the notice of application on each respondent.
- Not more than 14 days after filing the notice of application you must:
If the respondent wishes to respond to your application, they must file and serve a response book prepared using the completion instructions not more than 7 days after being served with your application book.
Similarly, if the application to vary is being made by the respondent(s) and you wish to respond to the application, you must file and serve a response book prepared using the completion instructions not more than 7 days after being served with the respondent(s) application book.