2.2 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 may 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 the court grants a stay, the plaintiff can enforce the order for damages 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, the appellant 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, the person asking for the stay must show:
- that there is some merit to the appeal (i.e., that there is a serious question to be decided);
- that the applicant would suffer irreparable harm if the court does not grant the stay; and,
- 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) 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.
- 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.
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.
Application for security for costs
You may want to make an application for security for costs of the appeal, forcing the appellant to deposit money into Court if the appeal is not successful.
You must follow the procedure set out in Rule 58.
To bring a successful application for security for costs, you must show:
- 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 interests of justice require that the court not order security against them.
In general, the court will consider granting an order for security of the judgment or costs to prevent the appellant from pursuing a frivolous appeal at your expense. If the court grants you an order for security for costs, the judge will determine the amount of money the appellant must deposit. The appeal will usually be stayed until the security is posted.
You can also make an application to require the appellant 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 of a judge (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 appellant(s) 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 party.
- Not more than 14 days after filing the notice of application you must:
If the appellant(s) 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 you served them with your application book.
Similarly, if the appellant(s) make the application to vary and you wish to respond, you must file and serve a response book prepared using the completion instructions not more than 7 days after the appellant(s) served you with their application book.