Case: Jaymat Limited v. Trichilo, 2025 ONCA 854 (CanLII)
Keywords: lifting the automatic stay pending appeal; summary judgment; s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43
Synopsis:
The Moving Party advances over $2M to support the expansion of the Responding Party’s restaurant chain. The parties leave the legal characterization of these advances (e.g., were they loans or equity?) unresolved. Eventually the Responding Party signs a promissory note consolidating the advances as loans. When the Responding Party defaults on repayment, the Moving Party brings a motion for summary judgment to recover the outstanding amounts. Stevenson J. grants judgment to the Moving Party for $2.1M plus interest. (Jaymat Limited v. Vivo Pizza Pasta Franchising Inc. et al, 2025 ONSC 1038 (CanLII) at paras. 1, 7, 39-44, 126). The Responding Party appeals. The Moving Party brings a motion to lift the automatic stay pending appeal. Trotter J.A. refuses to lift the stay; the Moving Party thereafter seeks a panel review of that order. (See para. 1). The Court of Appeal (Paciocco, George, and Monahan JJ.A.) dismisses the motion. (See para. 2).
Importance:
What do you do when summary judgment (e.g., in the amount of $2.1M) has been granted against you? Rule 63 of the Rules of Civil Procedure provides that, under certain circumstances, the delivery of a notice of appeal will stay “any provision of the order for the payment of money”. The Responding Party herein took that procedural step. Importantly, however, Rule 63 also provides that a judge of the court to which the appeal is taken – here, the Court of Appeal for Ontario – can lift the stay (i.e., “order, on such terms as are just, that the stay…does not apply”). The Moving Party herein took that step, but the motion was dismissed.
Therefore, a further practical question arises: what options are available in circumstances where the judge declines to ‘lift the stay’? Section 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides as follows: “[a] panel of the Court of Appeal may, on motion, set aside or vary the decision of a judge who hears and determines a motion”.
The decision of the Court of Appeal clarifies the role of the panel in these circumstances. For the Court of Appeal, panel reviews are not de novo determinations. (See para. 3; Machado v. Ontario Hockey Association, 2019 ONCA 210, at para. 9). On review of a discretionary decision of a single judge of the Court of Appeal, the standard of review is “deference”:
A reviewing panel may only intervene if the chambers judge erred in principle or reached an unreasonable result, or if the chambers judge’s decision reflects legal error or a misapprehension of material evidence. (See para. 3; Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, at para. 18).
Before Trotter J.A., the Moving Party’s position was that, unless the stay was lifted, the Respondent would “dissipate their assets”. For the Court of Appeal panel, it was open to Trotter J.A. to find that this submission was “speculative and not rooted in the evidence”. (See para. 4).
Bottom line: there is a range of procedural options available to both parties in an appeal. In circumstances where an appellate judge declines to lift the automatic stay pending appeal, a further panel review of that decision is available – though the scope of review, affirmed herein, is narrow.
Counsel for the Moving Party: Kevin Sherkin and Mark De Sanctis (Miller Thomson, Toronto & Vaughan)
Counsel for the Respondent: Jacob Damstra (Lerners LLP, London)