The moving parties sought to vacate a stay pending appeal after the Divisional Court held that the regulatory definition of "spouse" under social assistance legislation violated s. 15 of the Charter and was not saved by s. 1.
The Court of Appeal held that the governing test for a stay required the party seeking the stay to establish irreparable harm if relief was refused.
Because the prior motion judge had found, on evidence reasonably supporting that conclusion, that the Crown would not suffer irreparable harm, the Crown was not entitled to a stay pending appeal.
The motion to vary was granted, the stay was set aside, and costs were awarded to the moving parties.
