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Representations of the Lady of Justice in the Western tradition occur in many places and at many times. She sometimes wears a blindfold, more so in Europe, but more often she appears without one. She usually carries a sword and scales. Almost always draped in flowing robes, mature but not old, no longer commonly known as Themis, she symbolizes the fair and equal administration of the law, without corruption, avarice, prejudice, or favor.

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Tuesday, January 01, 2013

Is the judgment I am appealing still in effect after I file an application for leave to appeal?

 

 

Is the judgment I am appealing still in effect after I file an application for leave to appeal?

 

In most cases, the judgment you are appealing remains in effect even after you have filed an application for leave to appeal. However, this is not always the case. Section 65.1 of the Supreme Court Act allows you to apply for a “stay” of the judgment until the application for leave to appeal is decided. An application for a stay must be made to the court of appeal.

A 'Stay' is a temporary stopping or suspension of a judgment by order of a court.

Section 65.1 (1) of Supreme Court Act (R.S.C., 1985, c. S-26) allows that "The Court, the court appealed from or a judge of either of those courts may, on the request of the party who has served and filed a notice of application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought, on the terms deemed appropriate". So the Motion may be made to the Provincial Court of Appeal or the Supreme Court of Canada. 

 Please find provided, herein below, an Example of a 'Motion for Stay of Proceedings' and supporting 'Affidavit' which was filed to Stay a Dismissal Order issued by the Court of Appeal of New Brunswick.

Notice of Motion and sporting Affidavit for a Stay of Proceedings

The above link is to a Supreme Court of Canada file which is:
number 34642,   Notice of Motion and sporting Affidavit for a Stay of Proceedings, Dated November 29, 2011, filed with Court of Appeal of New Brunswick, requesting Orders Staying the Impugned Order of Appellate Judge Richard Bell, who erroneously dismissed a Motion for Leave to Appeal to the Court of Appeal of New Brunswick



Please find below the relevant section of Supreme Court Act (R.S.C., 1985, c. S-26):

 Section 65.1
Stay of execution — application for leave to appeal
  • 65.1 (1) The Court, appealed from or a judge of either of those Courts may, on the request of the party who has served and filed a: 'Notice of Application for Leave to Appeal', for that reason may order that proceedings be stayed, with respect to the judgment, from which leave to appeal is being sought, on any terms deemed appropriate.
  • Marginal note:Additional power for court appealed from
    (2) The court appealed from or a judge of that court may exercise the power conferred by subsection (1) before the serving and filing of the notice of application for leave to appeal, if satisfied that the party seeking the stay intends to apply for leave to appeal and that delay would result in a miscarriage of justice.
  • Marginal note:Modification
    (3) The Court, appealed from or a judge of either of those courts may modify, vary or vacate a stay order made under this section.

 Reference:
http://laws-lois.justice.gc.ca/eng/acts/S-26/page-15.html#docCont
Posted by at 11:30

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