Joy v. Canada (Attorney General)
The motion for a stay was dismissed because the impugned order lacked operative effect that could be stayed and the applicants were attempting to use a stay application to litigate the merits of their appeal; alternative procedural remedies were available and should be pursued.
Source-derived case information.
- Citation
- 2004 FCA 45
- Parties
- Appellant: Danny Joy; Appellant: Doris Gervais; Respondent: The Attorney General of Canada
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 29 January 2004
- Procedural Posture
- Motion for Stay Pending Appeal (judicial Review Proceedings) / Motion Before a Single Judge of the Federal Court of Appeal (teleconference)
- Outcome
- application for a stay dismissed
- Legal Topics
- Stay Pending Appeal, Expedited Hearing, Grievance, Institutional Decision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Danny Joy
Appellant
Doris Gervais
Appellant
The Attorney General of Canada
Respondent
Procedural Posture
Motion for Stay Pending Appeal (judicial Review Proceedings) / Motion Before a Single Judge of the Federal Court of Appeal (teleconference)
Legal Issues
- 1 Whether an order that does not require or permit any action is capable of being stayed
- 2 Whether the applicants were using a stay application to litigate the merits of their appeal before a single judge
- 3 Whether alternative remedies (grievance, expedited judicial hearings) were available and appropriate
Ratio Decidendi
The motion for a stay was dismissed because the impugned order lacked operative effect that could be stayed and the applicants were attempting to use a stay application to litigate the merits of their appeal; alternative procedural remedies were available and should be pursued.
Court Disposition
application for a stay dismissed
Orders
- The application for a stay is dismissed.
Full Case Text
Judgment text and source record
1 paragraphs
Joy v. Canada (Attorney General) Court (s) Database Federal Court of Appeal Decisions Date 2004-01-29 Neutral citation 2004 FCA 45 File numbers A-37-04 Decision Content Date: 20040129 Docket: A-37-04 Citation: 2004 FCA 45 Present: DÉCARY J.A. BETWEEN: DANNY JOY and DORIS GERVAIS Appellants and THE ATTORNEY GENERAL OF CANADA Respondent Heard by teleconference at Ottawa, Ontario, on January 29, 2004. Order delivered at Ottawa, Ontario, on January 29, 2004. REASONS FOR ORDER BY: DÉCARY J.A. Date: 20040129 Docket: A-37-04 Citation: 2004 FCA 45 Present: DÉCARY J.A. BETWEEN: DANNY JOY and DORIS GERVAIS Appellants and THE ATTORNEY GENERAL OF CANADA Respondent REASONS FOR ORDER DÉCARY J.A. [1] This motion is for an order to stay, pending appeal to this Court, the order of a Federal Court Judge to deny a stay of a decision of the Institutional Head at Drummond Institution until such time as the application for judicial review of the above decision is disposed of by the Federal Court. [2] For all practical purposes, therefore, the applicants are arguing through a stay application before a judge of this Court the very merit of their appeal which must be heard by three members of the Court. [3] I fail to see what it is that could be stayed by the within order. Assuming, for the sake of discussion, that I were to stay the impugned order, the applicants would be left with a decision of the Institutional Head that is attacked in a judicial review proceeding and with respect to which no stay has been ordered. I cannot conceive how an order which requires nor permits anyone to do, or to refrain from doing, anything under its authority is capable of being stayed (see Janssen-Ortho Inc. v. Minister of Health and the Attorney General of Canada, 2003 FCA 201 (Pelletier J.A.)). [4] The applicants had, and perhaps still have, an opportunity to seek a timely redress, through the filing of a grievance, a motion for an expedited hearing by the Federal Court of their application for judicial review or a motion for an expedited hearing by the Federal Court of Appeal of their appeal from the decision denying them a stay. [5] The application for a stay will be dismissed. "Robert Décary" J.A . FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-37-04 MOTION ON BEHALF OF THE APPELLANTS FOR A STAY OF A DECISION FROM THE INSTITUTIONAL HEAD AT DRUMMOND INSTITUTION MADE ON JANUARY 6, 2004 STYLE OF CAUSE: Danny Joy and Doris Gervais v. The Attorney General of Canada PLACE OF HEARING: Ottawa DATE OF HEARING: January 29, 2004 REASONS FOR JUDGMENT: Décary J.A. DATED: January 29, 2004 APPEARANCES: Ms. Diane Magas FOR THE APPELLANT Mr. Éric Lafrenière Mr. Marc Rubero FOR THE RESPONDENT SOLICITORS OF RECORD: Magas Law Office Ottawa, Ontario FOR THE APPELLANT Morris Rosenberg, Deputy Attorney General of Canada FOR THE RESPONDENT