Esmail v. Petro-Canada, [1997] 2 SCR 3

Esmail v. Petro‑Canada, [1997] 2 S.C.R. 3

Tajdin Esmail                                                                                     Applicant

v.

Petro‑Canada                                                                                     Respondent

Indexed as:  Esmail v. Petro‑Canada

File No.:  25095.

1996:  February 8.

Present:  Sopinka J.

application for an interim stay

Appeal ‑‑ Supreme Court of Canada ‑‑ Stay pending leave to appeal ‑‑ Court of Appeal judge dismissing application for stay without prejudice to renewal of application before Supreme Court judge ‑‑ Rationale of recent amendment to s. 65.1(1)  of Supreme Court Act  being to enable parties to apply to judge of court appealed from ‑‑ Successive applications should be permitted only in special circumstances ‑‑ Application for stay before Supreme Court judge dismissed ‑‑ Supreme Court Act, R.S.C., 1985, c. S‑26, s. 65.1 .

Statutes and Regulations Cited

Rules of the Supreme Court of Canada, SOR/83‑74, r. 27.

Supreme Court Act , R.S.C., 1985, c. S‑26 , s. 65.1(1)  [en. 1990, c. 8 s. 40; repl. 1994, c. 44, s. 101].

APPLICATION for an interim stay pending leave to appeal.  Application dismissed.

Raj Anand, for the applicant.

Susan Adam Metzler, for the respondent.

The following is the order delivered by

1                        Sopinka J. ‑‑ This is an application under s. 65.1  of the Supreme Court Act , R.S.C., 1985, c. S‑26  (as amended by S.C. 1994, c. 44, s. 101), and Rule 27 of our rules for an interim stay pending leave to appeal.  This relief was previously refused by Weiler J.A. who concluded that there was no serious question to be tried:  (1996), 88 O.A.C. 124.  The dismissal of the application was without prejudice to the renewal of the application before a justice of this Court.

2                        In enacting s. 65.1(1) to give judges of the court appealed from jurisdiction to grant a stay, Parliament did not intend that successive applications be routinely permitted.  The purpose of the amendment was to enable litigants to apply to the court that had recently dealt with the matter.  Often the court appealed from is more conveniently located so as to permit the matter to be dealt with more expeditiously.  It is only in special circumstances that successive applications to a judge of the court appealed from and a judge of this Court should be permitted.

3                        In this case, Weiler J.A. dismissed without prejudice to this application being renewed in this Court.  There are no special circumstances that would warrant a re‑examination by me of the decision of Weiler J.A. that there is no serious question to be tried.  My interpretation of the reason for the dismissal without prejudice is that Weiler J.A. had in mind that if this Court granted leave then there would be good reason to reconsider her finding that no serious question is presented in the proposed appeal.  I would therefore dismiss the application.  The application for leave will be expedited.^*  The application for a stay may be renewed before the panel hearing the application for leave. I make no order as to costs.

Application dismissed.

Solicitors for the applicant:  Scott & Aylen, Toronto.

Solicitors for the respondent:  Miller Thomson, Toronto.