The Ontario Court of Appeal’s decision in Antunes v. Limen Structures Ltd. explores different aspects of appellate practice, principally surrounding stays pending appeal.

Background

The respondent-plaintiff was awarded damages for wrongful dismissal, pre-judgment interest, costs, and the value of 5% of the shares of the appellant-defendant (“Limen Structures”). The appellant originally appealed only the award for the value of the shares. After the respondent brought a motion to lift the stay pending appeal in respect of the other damages, the appellant filed a “supplementary notice of appeal” challenging the wrongful dismissal damages. Although appealing this award would normally have required an extension of time, Rule 68.08 of the Rules of Civil Procedure entitles an appellant to amend a notice of appeal without leave before the appeal is perfected.

Lifting the Stay

Justice Lauwers, in Chambers, nonetheless lifted the stay on the collection of the damages for wrongful dismissal, pre-judgment interest and costs. He explained the law surrounding the lifting of stays pending appeal:

[14] This court described the test for lifting the stay in SA Horeca Financial Services v. Light, 2014 ONCA 811 (per Weiler J.A. (In Chambers)), at para. 13:

Rule 63.01(5) gives an appellate court judge discretion to lift a stay imposed by rule 63.01(1) “on such terms as are just.” In considering whether to lift a stay, the court should have regard to three principal factors: i) financial hardship to the respondent if the stay is not lifted; ii) the ability of the respondent to repay or provide security for the amount paid; and iii) the merits of the appeal.

[15] In Keays v. Honda Canada Inc. […] Armstrong J.A. (In Chambers) considered lifting the stay in a wrongful dismissal action pending appeal to the Supreme Court of Canada. He partially lifted the stay on the basis that the respondent had made out a significant case for financial hardship if the stay were not lifted. He recognized that it was very unlikely that the respondent would be able to repay or provide security for any amount paid to him.

[16] While Armstrong J.A. expressed difficulty in assessing the merits of the appeal in Keays, because he was not provided with a list of the grounds, he noted, at para. 23, that the decision on liability for wrongful dismissal “is based on findings of fact made by the trial judge which were subject to appellate review on the basis of palpable and overriding error – a very difficult standard to meet.”

[17] In Keays, Armstrong J.A. lifted the stay to the extent of $60,000 while the appeal proceeded in the Supreme Court of Canada. […]

Justice Lauwers held that the stay in this case should be lifted as:

  • the respondent had suffered financial hardship as a result of the wrongful dismissal and subsequent litigation;
  • there was reason to believe that the appellant may be insolvent by the time the appeal had resolved, a fact that was not helped by its “scorched earth” approach to litigating this claim;
  • for the appellant to succeed on its appeal with respect to the wrongful dismissal damages, it would have to demonstrate palpable and overriding error – a “very difficult standard to meet”; and
  • while the respondent would likely be unable to repay any award to the appellant, the interests of justice nonetheless favoured granting the stay – though the risk of non-repayment could be mitigated by the respondent’s counsel holding in trust funds collected as a result of lifting the stay, Justice Lauwers did not require this.

Costs of the motion were reserved to the panel hearing the appeal.