The Ontario Court of Appeal's decision in Antunes v. Limen
Structures Ltd. explores different aspects of appellate
practice, principally surrounding stays pending appeal.
The respondent-plaintiff was awarded damages for wrongful
dismissal, pre-judgment interest, costs, and the value of 5% of the
shares of the appellant-defendant ("Limen Structures").
The appellant originally appealed only the award for the value of
the shares. After the respondent brought a motion to lift the stay
pending appeal in respect of the other damages, the appellant filed
a "supplementary notice of appeal" challenging the
wrongful dismissal damages. Although appealing this award would
normally have required an extension of time, Rule 68.08 of the
Rules of Civil Procedure entitles an appellant to amend a
notice of appeal without leave before the appeal is perfected.
Lifting the Stay
Justice Lauwers, in Chambers, nonetheless lifted the stay on the
collection of the damages for wrongful dismissal, pre-judgment
interest and costs. He explained the law surrounding the lifting of
stays pending appeal:
 This court described the test
for lifting the stay in SA Horeca Financial Services v.
Light, 2014 ONCA 811 (per Weiler J.A. (In Chambers)), at para.
Rule 63.01(5) gives an appellate court judge discretion to lift
a stay imposed by rule 63.01(1) "on such terms as are
just." In considering whether to lift a stay, the court should
have regard to three principal factors: i) financial hardship to
the respondent if the stay is not lifted; ii) the ability of the
respondent to repay or provide security for the amount paid; and
iii) the merits of the appeal.
 In Keays v. Honda Canada
Inc. [...] Armstrong J.A. (In Chambers) considered lifting the
stay in a wrongful dismissal action pending appeal to the Supreme
Court of Canada. He partially lifted the stay on the basis that the
respondent had made out a significant case for financial hardship
if the stay were not lifted. He recognized that it was very
unlikely that the respondent would be able to repay or provide
security for any amount paid to him.
 While Armstrong J.A. expressed
difficulty in assessing the merits of the appeal in Keays,
because he was not provided with a list of the grounds, he noted,
at para. 23, that the decision on liability for wrongful dismissal
"is based on findings of fact made by the trial judge which
were subject to appellate review on the basis of palpable and
overriding error – a very difficult standard to
 In Keays, Armstrong
J.A. lifted the stay to the extent of $60,000 while the appeal
proceeded in the Supreme Court of Canada. [...]
Justice Lauwers held that the stay in this case should be lifted
the respondent had suffered financial hardship as a result of
the wrongful dismissal and subsequent litigation;
there was reason to believe that the appellant may be insolvent
by the time the appeal had resolved, a fact that was not helped by
its "scorched earth" approach to litigating this
for the appellant to succeed on its appeal with respect to the
wrongful dismissal damages, it would have to demonstrate palpable
and overriding error – a "very difficult standard to
while the respondent would likely be unable to repay any award
to the appellant, the interests of justice nonetheless favoured
granting the stay – though the risk of non-repayment could be
mitigated by the respondent's counsel holding in trust funds
collected as a result of lifting the stay, Justice Lauwers did not
Costs of the motion were reserved to the panel hearing the
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