Case: Watts v. Mountain Country Property Management Ltd., 2022 BCCA 133 (CanLII)

Keywords: stay pending leave to appeal to the Supreme Court of Canada; B.C. (Milk Marketing Board) v. Grisnich (1996), 1996 CanLII 883 (BC CA); ss. 10(2)(b) and 18(1) of the Court of Appeal Act, R.S.B.C. 1996, c. 77; s. 65.1(1) of the Supreme Court Act, R.S.C. 1985, c. S-26

Synopsis:

The Appellant rents a suite in Whistler, B.C.

The landlord posts a ten-day notice to end tenancy for unpaid rent on October 6, 2020. The Appellant files a dispute with the British Columbia Residential Tenancy Branch (“RTB”). The Appellant’s dispute is dismissed; the RTB terminates his tenancy on December 16 and 21, 2020.

The Appellant then commences a judicial review proceeding in the British Columbia Supreme Court, obtaining “stays or adjournments at various times between December 29, 2020 and February 5, 2021”. (See para. 5). A Chambers Judge orders that the matter proceed. A hearing is scheduled for February 18, 2021. The Appellant seeks a further adjournment which is denied; the Court provides oral reasons which determine the RTB decision is “neither procedurally unfair nor potentially unreasonable”. (See para. 6).

The Appellant appeals to the Court of Appeal for British Columbia, which dismisses the appeal in oral reasons for judgment dated October 18, 2021. (See para. 8). The Appellant next seeks leave to appeal to the Supreme Court of Canada. On January 12, 2022, the Appellant files a notice of motion to stay the order dismissing his appeal, pending disposition of the leave application.

The Court of Appeal for British Columbia dismisses the Appellant’s application for a stay. (See para. 28).

Importance:

This case provides a helpful summary of the legal framework applicable to applications for stay pending an application for leave to the Supreme Court of Canada.

The Court of Appeal described its jurisdiction or authority to order a stay as being found at ss. 10(2)(b) and 18(1) of the Court of Appeal Act, R.S.B.C. 1996, c. 77. These sections address the powers of a justice and stay of proceedings powers, respectively. The Court of Appeal also noted that s. 65.1(1) of the Supreme Court Act, R.S.C. 1985, c. S-26 provides jurisdiction to the Supreme Court of Canada as well as the court below to order a stay pending an application for leave to appeal. (See para. 15).

According to the Court of Appeal, the same principles govern the stay application, regardless of whether the application is made pursuant to the Court of Appeal Act or the Supreme Court Act. In either case, an applicant for a stay must satisfy the following three-part test:

  • that there is some merit to the appeal in the sense that there is a serious question to be determined;
  • that irreparable harm would be occasioned to the applicant if the stay was refused; and
  • that, on balance, the inconvenience to the applicant if the stay was refused would be greater than the inconvenience to the respondent if the stay was granted. (See para. 16; see also B.C. (Milk Marketing Board) v. Grisnich (1996), 1996 CanLII 883 (BC CA) at para. 7; Lee v. Dawson, 2006 BCCA 344 at para. 14).

By way of explanation for the three-part test, the Court of Appeal observed that the merit threshold is “a low one” (i.e. “serious question to be tried”). Despite this, the Court of Appeal says that when the stay is sought pending leave to appeal to the Supreme Court of Canada, a judge must consider this factor in light of the “stringent leave requirements” set out in s. 40 of the Supreme Court Act. (See para. 17; see also Williams v. British Columbia (Attorney General), 2019 BCCA 112 at para. 26).

For the Court of Appeal, then, consideration of the merit factor involves examining whether the issues raised on appeal are matters of public importance that the Supreme Court of Canada might grant leave on – in other words, what is the likelihood that the Supreme Court of Canada will grant leave? (See para. 17; see also Byatt International SA v. Canworld Shipping Company Ltd., 2013 BCCA 558 at para. 12).

In the circumstances of this case, the Court of Appeal determined there was “little, to any spectre, of an issue of public importance” and that the Appellant’s arguments with regarding procedural fairness and reasonableness “militate strongly against leave being granted”. (See para. 24).

Counsel for the Appellant: Ty Watts, appearing in person

Counsel for the Respondents: no one appearing on behalf of the Respondents

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