The recent case, Stewart Estate v Stewart, 2025 ONCA 575, provides guidance on the test for a stay pending appeal.  In Stewart, the deceased, William, executed a last will and testament (the “Will”) in 1989.  William died five years later.  He was survived by his wife, Edith, and their 13 children.  The Will gave a life estate to Edith, after which William’s two farms were to be transferred to his sons, Robert and Winfield.  These ‘gifts’ were subject to the sons paying specified amounts for their respective farm properties (Robert was to pay $50,000 for his farm, and Winfield was to pay $90,000 for his farm).

Edith survived William by nearly 25 years.  In that time, the value of the two farms skyrocketed.  The farm that was to go to Robert was valued at $617,500, and the farm that was to go to Winfield was valued at $1,120,000.  The value of the farms therefore dwarfed the specified amounts that Robert and Winfield were required by the Will to pay for the farms.

William’s estate (the “Estate”) was subject to significant tax liabilities (approximately $600,000).  The CRA noted that should the liabilities go unpaid, it may seize and sell the lands owned by the Estate to pay the liabilities.  The estate trustee went to court and obtained an order authorizing her to sell the farms and use the proceeds to pay the Estate’s debts.  Lynn (Robert’s widow) and Winfield appealed the order.  In the meantime, they sought a stay of the order, as they did not want the estate trustee to sell the farms on the open market pending the appeal.

In considering whether to grant a stay of the order, the court considered the tripartite test set out in RJR-MacDonald Inc v Canada (Attorney General).  This test requires the court to determine whether a stay is in the interests of justice considering the following three factors:

1. A preliminary assessment of the merits to ensure there is a serious question to be tried;
2. Whether the applicant would suffer irreparable harm if the application were refused; and
3. Assessment of the balance of inconvenience as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

The Court refused to grant the stay.  First, Lynn and Winfield had not articulated a serious question to be determined on appeal for which a stay was required.  In large part, this was because Lynn and Winfield had not filed a factum, which “impaired” the court’s assessment of the first factor.  Second, Lynn and Winfield had not demonstrated that they would suffer irreparable harm if the stay were not granted.  In particular, the farms were not “unique” properties.  As such, the harm faced by Lynn and Winfield was purely financial.  Third, the balance of convenience favoured the estate trustee.  Further delay risked further expenses for the Estate and a further risk that the CRA would seize the farms to satisfy the tax liability.

Takeaway

Stewart speaks to the importance of articulating a serious issue to be tried when asking the court to grant a stay.  In this case, had the moving parties filed a factum on their motion, they may have been able to better articulate the issue which they thought was serious enough to warrant a stay.  Stewart also demonstrates that irreparable harm, for the purposes of a stay pending appeal, must usually amount to more than mere financial harm or loss.