Appealing from a court order pertaining to an estate administration typically will not prevent an estate trustee from continuing to administer the estate pursuant to the original court order. For example, the Ontario Court of Appeal’s recent decision in Stewart Estate v Stewart, 2025 ONCA 575 confirms that if a court order has been granted which authorizes an estate trustee to sell estate property, the estate trustee may act on that order, even if an appeal has been filed.* It is only if a stay is granted pending appeal that an estate trustee will be unable to act on the original court order regarding the estate administration.
While a stay was sought in Stewart Estate, the fact that the application was dismissed by Justice Lauwers affirms that such relief is far from automatic. It should not be a foregone conclusion that a stay which would affect an estate administration will be granted simply because an appeal has been launched. To the contrary, a high bar must be satisfied in order to obtain a stay.
The Legal Framework
A court may grant a stay pending appeal “on such terms as are just” under rule 63.02 of the Rules of Civil Procedure. This is a discretionary remedy – the court’s “overarching consideration on a motion for a stay pending appeal is whether a stay is in the interests of justice”: see Fontaine v. Canada (Attorney General), 2021 ONCA 313. The British Columbia Court of Appeal recently noted in Liang v. Nguyen, 2023 BCCA 67 that a stay will be appropriate where, for example, “it is necessary to preserve the subject matter of the litigation pending final decision of the Court or to prevent irremediable damage, or where there are other special circumstances.”
The test which must be satisfied to obtain a stay was established by the Supreme Court of Canada more than 30 years ago in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117. An applicant must satisfy the following three criteria:
A serious question to be tried must be established;
The applicant must demonstrate that they will suffer irreparable harm if the stay is not granted; and
The balance of convenience must favour granting a stay.
- 1. A serious question to be tried must be established;
- 2. The applicant must demonstrate that they will suffer irreparable harm if the stay is not granted; and
- 3. The balance of convenience must favour granting a stay.
1. Serious Question to Be Tried
The threshold for the “serious question” requirement has been described as “low” – for example, the Court of Appeal noted in Fontaine that the appeal must be neither frivolous nor vexatious. Despite being a low threshold, it must be arguable that an error was made by the original trier of fact. In fact, the Court of Appeal cautioned in McArthur v. McArthur, 2001 CanLII 8576 that the court will be reluctant to grant a stay where no obvious error has been made.
More recently in Janicek v. Janicek, 2018 ONSC 2772, Justice Mitchell held:
“The court must assume that the order under appeal is correct and that the relief granted by the application judge was properly granted. The onus is on the moving party to displace that assumption. Simply alleging an error without analysis as to how the error arose is insufficient to meet this branch of the test. The appellant must provide persuasive evidence and/or law establishing either a failure of the application judge to correctly apply or consider the relevant legal principles relative to the findings of fact made or an error on the part of the application judge having made findings of fact unsupported by the evidentiary record[.]”
2. Irreparable Harm
If a serious question is established, the applicant must then show that they will suffer irreparable harm if a stay is not granted. In RJR-MacDonald, the Supreme Court indicated that at this stage of the analysis, the question is whether refusing to grant a stay “could so adversely affect the applicants’ own interests that the harm could not be remedied” if the applicant were to succeed on appeal. The court went on to hold that the term “‘[i]rreparable’ refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured.”
In the context of an estate administration, a court order which permits the estate trustee to sell estate assets may not constitute irreparable harm, as demonstrated by the court’s decision in Stewart Estate. In this case, because the estate property was not “unique,” Justice Lauwers held that any loss suffered by the applicants if a stay were not granted would be purely monetary and thereby reparable.
3. Balance of Convenience
Finally, the court must determine which party would suffer greater harm if the request for a stay is granted or refused. The factors informing this analysis will vary on a case-by-case basis, depending on the nature of the order the applicant seeks to stay.
Satisfying the Test: A Caveat
If an order is obtained that affects an estate administration, a stay will only be granted if the RJR-MacDonald criteria are met. However, it is worth noting that the three requirements are not “watertight compartments.” In fact, the Ontario Court of Appeal remarked in Circuit World Corp. v. Lesperance, 1997 CanLII 1385, and reaffirmed in Fontaine, that the strength of one criterion may help offset the weakness of another criterion, meaning that an application for a stay may be granted even if the strength of the evidence put forward to satisfy each requirement is not evenly balanced. The fact that the court may take such a nuanced approach when determining whether or not to grant a stay simply verifies that this is a truly discretionary remedy.
Thank you for reading, and have a fantastic day!
Ian.
* To learn more about the Court of Appeal’s decision in Stewart Estate, see our blog post, When Intentions Meet Liabilities: The Stewart Estate Decision.