This section will guide you through your interim stay hearing for both regular interim stay applications and without notice interim stay applications.
At your interim stay hearing, you will have to explain to a judge why it is fair for your eviction to be put on hold for a period of time.
To convince a judge to put your eviction on hold you will usually have to make these 3 points:
- Your judicial review raises a real problem with the Residential Tenancy Branch (RTB) decision that led to the order of possession. The Getting Started on a Judicial Review page of this site explains what kinds of problems with a RTB decision may be valid grounds for a judicial review. If there is no real problem with the RTB decision, then it is unlikely that you will get an interim stay.
- You will suffer some type of “irreparable harm” if the eviction goes ahead right away. This means harm that cannot be adequately compensated by money. Irreparable harm is more likely to occur if the eviction will force you to leave your home and you don’t have anywhere else to go right away. A judge may also be more likely to find irreparable harm if children or other vulnerable people are living at your rental unit, or if you are particularly vulnerable for some reason.
- The “balance of convenience” favours granting a stay. This means that, taking into account all sides of the situation, it is fairer to grant the stay than not to do so. Some points to consider:
- The balance of convenience is more likely to favour an interim stay if it will not inconvenience your landlord too much. For example, it is helpful if the landlord has not yet rented your place to a new tenant, and if you are willing and able to keep paying rent while the interim stay is in effect. If you are being evicted for non-payment of rent, then it is helpful if you can pay any arrears owing and then keep paying rent during the interim stay.
- The balance of convenience is also more likely to favour an interim stay if you can show that an immediate eviction will cause serious harm to you or others
- It is very helpful if you can ask the judge for an interim stay with a specific end date in mind (for example, asking for a two month interim stay). A judge may be less willing to give you a stay if you are just asking to have the eviction put off generally with no end date in sight.
Before you go to court for your interim stay application, think carefully about how each of these points applies in your case. Get ready to tell the judge why, with these points in mind, you should get an interim stay.
If you are making a without notice interim stay application
If you are applying for a without notice interim stay, you should also think about how to convince the judge it is fair to give you an interim stay without notice to your landlord. Here are some things to consider:
- Did you receive the order of possession very recently? (If you have had it for a while and have delayed in applying for an interim stay, the judge might be less willing to grant you the interim stay.)
- Is the eviction coming up so soon that you truly don’t have time to notify your landlord? (If the eviction is more than a few days away, the judge will probably not give you a without notice interim stay, and will instead ask you to serve the court documents on the other parties and then come back another day to ask for the interim stay.)
- Have you tried to talk to your landlord about putting off the eviction? (If you have not made a reasonable effort to talk to your landlord about the eviction, the judge might be less willing to grant you an interim stay.)
You should also try to let your landlord know about your application and the date and time you intend to go to court to speak to a judge about an interim stay. Even if you don’t have time to properly serve your landlord with all the court documents, the judge may be more likely to grant you an interim stay if you at least told your landlord about the application so he or she could attend the court hearing.
The day of the interim stay hearing
On the day of the interim stay application, make sure you bring your application record, your draft interim stay order, as well as all your other court documents and proof that you served the application record and index on the other parties. Also bring some spare paper and pens to take notes.
Regular: If you are making a regular interim stay application, your hearing will be scheduled for 9:45 am. When you get to the courthouse, look for a list of cases being heard that day “in chambers”. Your hearing should be on the list under the style of cause (the case name). Go to the courtroom where your hearing is scheduled. If you are having trouble finding where your hearing is scheduled, ask a sheriff or the registry staff.
Without Notice: If you are making a without notice interim stay application,the registry staff will tell you which courtroom to go to. They may tell you to carry your documents up to that court room or they may send them up for you.
When you get to the courtroom, if court is not in session go up to the clerk’s desk at the front of the courtroom and tell the clerk your name and that you are representing yourself. If court is already in session, go quietly up to the clerk’s desk and hand him or her a piece of paper with your name written on it, along with the application(s) you are making.
Other cases may be scheduled for the same courtroom, so once you have given the clerk your name, you may have to wait until your case is called. If this is the case, go sit in the gallery (the seats in the back of the courtroom) and wait. Be patient and do not disrupt the court if other cases are going first.
When the clerk calls your name, go up to the podium and hand the clerk your draft order(s). When everyone is ready, including the judge, introduce yourself and spell your last name slowly. Tell the judge that you are representing yourself and you are the petitioner in the judicial review. If any other parties are there, pause and let them introduce themselves as well.
The judge will then ask you to proceed with your application. You should then go through the following points:
- Tell the judge you are representing yourself in a judicial review of a Residential Tenancy Branch decision.
- Tell the judge that today you are applying for an interim stay of an order of possession. Tell the judge the date when you are going to be evicted.
- If you are making a regular interim stay application but the other parties are not there, tell the judge how and when you served the other parties with your court materials.
- If you are making a without notice interim stay application, tell the judge why you think it is appropriate that you are applying without notice.
- Tell the judge if you are applying for a fee waiver at the same time.
- Tell the judge why you think it is appropriate to grant an interim stay:
1. Explain how your judicial review raises a real problem with the RTB decision that led to the order of possession. Before you speak to the judge, think of a clear and concise way to explain this in a few sentences.
2. Explain what harm you will suffer if the eviction goes ahead right away.
3. Explain why it is not unfair to your landlord to grant you an interim stay.
The judge may interrupt you and ask you questions. Be patient and try to answer the questions honestly and simply. If you need a minute to find something, or if you don’t understand what is being asked, politely tell the judge.
Once you are finished, any other parties present will have a chance to present their reasons why they do not think you should get an interim stay. It is important to listen quietly and not interrupt, even if you disagree. Take notes on what they are saying. When they are finished, the judge may give you a brief time to reply to what they said.
This is a sample of what someone might say to a judge in an application for an interim stay: Sample Interim Stay Application Oral Presentation
The judge’s decision on the interim stay
On an interim stay application, the judge will most likely decide on the spot whether to give you an interim stay, and if so how long it will be.
If the judge grants you an interim stay, tell him or her that you have given the clerk a draft interim stay order, and that the registry has reviewed (“vetted”) it. Also tell the judge that there are spaces on the order that the judge can fill in if needed. The judge may then sign the draft interim stay order and give it back to you.
Note: If you did not prepare a draft interim stay order before the hearing, or if the judge is not happy with the draft order you prepared, you will have to prepare the order quickly after the hearing and go back to get it signed. Pay attention to what the judge is saying when the order is made, and try to write it all down. If you have a friend with you, ask him or her to write it down as well. Generally, listen for (1) whether the court has given you an interim stay; (2) what the timeline is on the interim stay; and (3) whether you are required to do anything during the interim stay period.
If you are making your application without notice, be aware that the judge may order you to serve your documents quickly on the other side and come back in the next day or two to apply again for an interim stay. Make sure you look at the order the judge signs: she or he may have filled in some of the blanks on the order, and it might require you to do specific things.
If you are also applying for a fee waiver at the same time, make sure that you get the signed fee waiver order back from the judge, take it back down to the registry and give it to the registry staff.
Assuming that the judge has filled in and signed the interim stay order and given it back to you, you should take it back down to the registry and give it to the registry staff. Ask the registry to enter the order urgently. The registry staff should be able to tell you when it will be ready for you to pick up, usually later that same day. In the meantime, ask the registry for a copy of the signed interim stay order for your records.
Do not leave the courthouse without a copy of the interim stay order stamped with the file number and an “Entered” stamp.