In his April 13, 2015 decision in Abuzour v. Heydary, Justice Huscroft of the Ontario Court of Appeal held that an that an Order for the payment of money is not automatically stayed pending the appeal of an Order that refused to vary the original Order. However, he nonetheless granted a stay of such an original Order pending the appeal of an Order refusing to vary it. In addition to being a helpful reminder of when appeals will be stayed as of right and in the interests of justice, the decision also addresses the question of standing to bring a motion pending appeal.

Facts

On October 28, 2014, the Superior Court ordered that LAWPRO “pay to the Abuzours the available proceeds of the 2013 insurance policy of the Respondents, Javad Heydary and Heydary Hamilton Professional Corporation” (“October Order”). That Order was not appealed. However, third parties (the “Third Parties”), who asserted they were affected by the October Order, sought to vary the October Order. The Third Parties’ motion was dismissed on January 29, 2015 (“January Order”). The January Order was appealed.

LAWPRO brought a motion for directions, asking, first, whether the October Order was automatically stayed pending the appeal of the January Order. Second, in the event that the October Order was not stayed pending appeal of the January Order, LAWPRO asked whether it should be stayed in the interests of justice.

Standing

Justice Huscroft rejected the Abuzours’ argument that LAWPRO did not have standing to bring the motion as it had “not appealed either the [October Order] or the [January Order] and is an interpleader rather than a party.” He held that, as a respondent affected by both the October Order and the January Order, LAWPRO was entitled to bring the motion seeking directions.

No Automatic Stay of the October Order

Rule 63.01(1) of the Ontario Rules of Civil Procedure states “the delivery of a notice of appeal from an interlocutory or final order stays, until the disposition of the appeal, any provision of the order for the payment of money, except a provision that awards support or enforces a support order.”

While the October Order was clearly an order for the payment of money, it was not the Order under appeal. The Third Parties argued that the practical effect of the January Order, however, was that LAWPRO would pay the money to the Abuzours, to the Third Parties’ detriment. Moreover, they could not appeal the October Order because they were not parties to the Order. This did not change the fact that the rule did not apply:

[19]      … these considerations do not affect the operation of the rule, which has always been interpreted narrowly: Longley v. Canada (Attorney General) […]. The [January Order] contains no provisions requiring the payment of money and cannot properly be characterized as an order for the payment of money. It cannot be stayed automatically under rule 63.01(1) without undermining one of the primary purposes of the rule itself, which is to provide a measure of certainty. It would be counterproductive to encourage litigation over whether a particular order is tantamount to an order to pay money. It is appropriate that the rule is interpreted narrowly.

[20]      I appreciate that, in the circumstances of this case, the Abuzours’ failure to provide notice to [the Third Parties] of the motion resulting in the [October Order] not only occasioned further proceedings and expense, but also has the effect of denying them the benefit of an automatic stay that would have obtained had they received notice. In my view, this is a relevant consideration in determining whether a discretionary stay should be ordered. I consider this matter below.

Stay in the Interests of Justice

In these circumstances, applying the well-known test from RJR-Macdonald Inc. v. Canada, Justice Huscroft granted the stay, bearing in mind that the overriding consideration in applying the RJR test is determining whether a stay is in the interests of justice. First, he held that the Third Parties’ “appeal is neither vexatious nor frivolous, and that is enough at this stage to allow me to conclude that there is a serious issue to be tried.” Second, he held that the Third Parties may experience irreparable harm if the stay were not granted as they may “be left without any professional liability insurance to defend against claims that may be brought against them by the Abuzours.” Third, turning to balance of convenience and considering “basic fairness”, Justice Huscroft granted the stay. It was clear that he was not impressed that the Third Parties had not received notice of the original motion:

 [37]      The strongest argument in favour of granting a stay is one of basic fairness. The problem at the heart of these proceedings results from the failure of the Abuzours to provide proper notice to [the Third Parties] of the first motion before Penny J. Had notice been provided, they would have been able to appeal the [October Order] and that order would have been stayed automatically pursuant to rule 63.01(1).

 [38]      In my view, the overall justice of this case requires the grant of a stay. [The Third Parties] should not end up in a worse position than they would have been had they received proper notice of the first motion. Accordingly, the [October Order] is stayed pending appeal of the [January Order].