No Harm, No Stay: Court of Appeal Rejects Stay of Divisional Court Judgment
The Ontario Court of Appeal recently released its decision on a motion to stay a judgment pending an appeal of a Divisional Court decision, in Sorrentino v. Certas Home and Auto Insurance Company, 2025 ONCA 835. The decision comes on the heels of a brief Oral endorsement of the Divisional Court ordering the payment of $365,257.00 with “immediate effect” and the refusal to remit the matter back to the LAT due to what the Divisional Court deemed to be “exceptional circumstances”.
The decision serves as both a reminder of the test for a discretionary stay of judgment pending appeal in accordance with rule 63.02 of the Rules of Civil Procedure, but also an analysis of the case specific factors the Court will consider in making a determination regarding a stay pending appeal.
Brief Recounting of the Facts and History
The respondent in the application, Ms. Sorrentino, was 83 years old when she was involved in a motor vehicle accident in April of 2016. Her injuries were severe enough that, during the course of her accident benefits claim with Certas Home and Auto Insurance Company (“Certas”) she was deemed to have suffered a catastrophic impairment.
During her claim, Ms. Sorrentino identified the need for home modifications in order for her to continue to live safely and independently. Ms. Sorrentino submitted a treatment plan totalling $388,082.53 for modifications to be made to her daughter’s home so that she could live there. Certas approved only $22,835.53, the amount it deemed reasonable for the renovation of Ms. Sorrentino’s condominium, where she resided at the time.
At the License Appeals Tribunal, Certas successfully argued that it did not have an obligation to modify another home, if modifications could be made to the claimant’s current residence. This decision was upheld in a reconsideration hearing at the LAT.
The matter was appealed to the Divisional Court, which as of this time, has not released its full reasons for its decision. However, Justice Corbett, speaking for the court, advised orally that the appeal was allowed and further added:
In the exceptional circumstances of this case, we would not send the case back to the LAT, and instead we would order that the Appellant is entitled to the costs of the disputed plan in the amount of $365,257.00, with immediate effect.
The Appellant is 92 years old. She requires the money to move forward with her life. If we were to remit the matter back, it is reasonably foreseeable that justice would come too late to do her any good at all. As it is, the Appellant has suffered another injurious fall and cannot return to her condominium.[1]
Justice Corbett further stated that by “immediate effect” the court meant that the decision was not stayed pending proceedings to seek leave to appeal to the Ontario Court of Appeal, absent a stay order expressly granting that relief.
Certas brought a motion at the Court of Appeal for a stay of the Divisional Court judgment pending appeal.
Motion to Stay
The motion to stay the judgment of the Divisional Court was heard by Justice Paciocco. The test for determining if a stay of a judgment is appropriate was set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC).
In brief, the test is whether or not it is in the interest of justice to grant a stay, with specific consideration given to three key factors:
- Whether there is a serious question to be tried.
- Whether the moving party would suffer irreparable harm if the stay is not granted.
- The balance of convenience favours the granting of the stay.
The onus lies with the party requesting the stay to prove that the requested stay is in the interest of justice.
A Serious Question to Tried
In this matter, there was a unique snag in determining whether there was a serious question to be tried, in that the motion to the Court of Appeal took place prior to the release of the reasons of the Divisional Court for allowing the appeal of Ms. Sorrentino. As a result, the precise issues to be determined on appeal were unknown at the time of the motion to stay the judgement.
Justice Paciocco determined that in this situation where there is a lack of underlying reasoning, it is acceptable to determine that the criterion favours allowing the motion to stay. This was in line with a previous Court of Appeal decision in Reynolds v. Alcohol and Gaming (Registrar), in which Justice Nordheimer considered the Divisional Court’s decision to reserve its decision as a factor in favour of meeting the serious issue test.[2]
Irreparable Harm
It was the position of Certas that, should they be made to pay the judgement now, there was a substantial risk that the amount of money paid would not be recoverable should they be successful upon the appeal. However, evidence was not lead regarding the ability of the respondent to repay the amount or that it would be without restitution remedies if it was left to attempt to recover the costs of the improvements made to the daughter’s home. It was determined by Justice Paciocco that Certas was relying on a speculative risk of irreparable harm and therefore had not met its burden in establishing irreparable harm would be caused by the dismissal of the stay request.
Balance of Convenience
Justice Paciocco determined that the balance of convenience favoured the denial of the stay. The Justice considered “which of the parties would suffer greater harm from the granting or refusing of the stay” and determined:
If Certas pays but later obtains leave, and prevails, there is a possibility, but not a certainty, that they may have paid money that cannot be recovered. In contrast, the harm in granting a stay pending the motion for leave to appeal is considerable. Ms. Sorrentino is now at least 92 years of age. It is not disputed she is in poor health. It is not disputed that she is in a long-term care facility and requires significant assistive care. There is a serious risk that if the Divisional Court order is stayed pending appeal, Ms. Sorrentino will never enjoy the SABS benefits that are in contention. There will be significant inherent delay in waiting for the Divisional Court’s reasons for decision; determining the leave application; perfecting, scheduling, and hearing the appeal; and issuing a decision on merits. The essence of the dispute is about modifications to Ms. Sorrentino’s proposed place of residence to accommodate her care for the remainder of her life. There is a real probability that this stay request will be the determining issue on whether Ms. Sorrentino will enjoy the benefits of the insurance contract that are in contention.[3]
Based on his review of the three conventional factors above, Justice Paciocco determined that the granting of a stay pending appeal was not appropriate. He further commented that another factor would be the nature of the SABS regime, and the importance that SABS benefits should not be delayed by payment dispute litigation, which would be contrary to public policy.
Conclusion and Takeaways
The decision of Court of Appeal in this matter is interesting for a number of reasons. Beyond serving as a reminder of the test for seeking a stay, this case also shows that these matters are extremely case specific. In this matter, it is clear from the reasons that the fact that the respondent was an elderly woman in poor health substantially lent itself to the determination that a stay of the payment would not be in the interests of justice, as every delay would jeopardize Ms. Sorrentino’s ability to utilize the benefits awarded by the Divisional Court.
Additionally, the importance of establishing an evidentiary foundation for motion submissions is made clear in the Court’s analysis of the irreparable harm issue. Although it might not have changed the outcome, it is clear that Certas did not present the evidence necessary to establish the allegation that they would not be able to recover the funds should they be successful on an appeal. The amount in dispute is a substantial amount of money for almost any individual person, but the evidence was not present to prove it was the case that the means did not exist to repay it.
Finally, although said in obiter, it is important to note that Justice Paciocco considered the specific nature of the underlying accident benefits claim being a further reason for the refusal to grant a stay in this matter, specifically noting that SABS payments exist to provide benefits without delay due to litigation.
This dispute remains ongoing, and it will be interesting to see the underlying reasons provided by the Divisional Court for overturning of the initial LAT adjudicator’s decision, as well as any appeal that stems from that decision.
[1] Sorrentino v. Certas Home and Auto Insurance Company, 2025 ONSC 5518 (CanLII), https://canlii.ca/t/kfnsv at paras 1-2.
[2] Reynolds v. Alcohol and Gaming (Registrar), 2019 ONCA 788 (CanLII), https://canlii.ca/t/j4qq5 at para 7.
[3] Sorrentino v. Certas Home and Auto Insurance Company, 2025 ONCA 835 (CanLII), https://canlii.ca/t/kgsqc at para 15.