Community Legal Assistance Society - BC Judicial Review Self-Help Guide

Without Notice Interim Stay Application

If your eviction date is less than 2 weeks away and you need an interim stay, you should do a without notice interim stay application, which means you will ask the court for an interim stay without giving the other parties any notice or warning of your application.

Using this approach you will:

  • Prepare and file your court documents as soon as possible;
  • Appear in front of a judge the same day you file the court documents and ask the judge for an interim stay; and
  • Serve the interim stay order (if you get it) on your landlord.

Please note that you should only make a without notice application if you are very close to being evicted. The court does not like granting orders if some of the parties haven’t had notice of the application. If you are applying for an interim stay without notice and there are still several days to go before you are evicted, the court might tell you to serve the documents on the other side quickly and then come back on a later date to ask for an interim stay. Even if you are making a without notice application for a stay, it is still a good idea to inform your landlord in advance and invite them to come to court. 

Also keep in mind that if the court does grant you an interim stay without notice, the other parties can always apply to set aside the interim stay.

Court documents for a without notice interim stay application

When you make a without notice interim stay application, you will need to prepare the following documents:

  1. Petition for judicial review;
  2. Affidavit in support of petition;
  3. Requisition for court fee waiver if you cannot afford to pay court fees;
  4. Affidavit in support of fee waiver if you cannot afford to pay court fees;
  5. Notice of application form; and
  6. Draft interim stay order.

The “notice of application” form tells the court, and the parties, that you are applying for an interim stay. It also sets a hearing date when you will ask the judge for the interim stay. The hearing date will be the date when you will be filing your documents.

This is a blank notice of application for interim stay form that you can download and fill in: Blank Notice of Application for Interim Stay

This is a sample without notice application for interim stay that you can look at as an example: Sample Notice of Application for an Interim Stay (Without Notice)

An “interim stay order” is the court’s formal document stating that the court has ordered that your eviction is put on hold. It is helpful to the court if you can prepare a draft of the interim stay order that you will eventually be asking for that the judge may use as a template. The order also leaves room for other orders the court may make. For example, the judge might order that you serve the other parties’ documents by a certain date and come back to the court in a few days to speak to the interim stay again.

This is a blank interim stay order that you can download and fill in: Blank Interim Stay Order

This is a sample without notice interim stay order that you can look at as an example: Sample Interim Stay Order (Without Notice)

The application record for the without notice interim stay application

Before you go to court to apply for a without notice interim stay, you will need to prepare and bring two copies of a binder called an “application record”.  This is a binder containing all the materials that the judge may want to look at in the interim stay application.  The goal of the application record is to make it easy for the judge to find documents and to understand your interim stay application. One copy of the application record will go to the judge and you will keep the other copy for your reference.

The registry will expect you to prepare an application record for a without notice interim stay application. However, if you do not have time to prepare an application record properly because your eviction will be taking place that day, go to the registry with your court documents for your application anyways. Tell the clerk that you have not been able to prepare the application record because your eviction is taking place that day and it is urgent that you go in front of a judge today. As an exception, the registry staff may allow you to make your application with only your court documents, but they may refuse to accept your court documents for filing and ask you to prepare the application record and then return.

Application records must contain:

  • Title page with the style of proceeding;
  • An index;
  • Copy of your filed notice of application;
  • Copy of any filed application responses;
  • Copy of every filed affidavit that you or the respondents will be referring to at your application for an interim stay;
  • Copy of your filed petition; and
  • If you wish, your application record may contain your draft interim stay order.

You cannot put the following in your application record:

  • Affidavits proving service;
  • Copies of legal authorities; or
  • Any other documents, unless all parties agree.

Put each copy of your application record in a 3 ring binder. Tape the title page to the front of the application record binder, and make the index the first page inside the binder. It is a good idea to use tabs and to put the tab numbers in the index so that each document is easy to find. Number all the pages of the petition record consecutively (do not restart numbering at each tab; if there are 40 pages in the entire application record, pages should be numbered 1 to 40).  Use copies of documents for the application record, not originals.

This is a blank application record title page that you can download and fill in: Blank Application Record Title Page

This is a sample application record title page that you can look at as an example: Sample Application Record Title Page

This is a blank application record index that you can download and fill in: Blank Application Record Index

This is a sample application record index that you can look at as an example: Sample Application Record Index

Filing without notice interim stay application documents

When you go to the court registry to file your documents, bring the following:

  1. Petition for judicial review (4 copies);
  2. Affidavit in support of petition (4 copies);
  3. Notice of application form (4 copies);
  4. Draft interim stay order;
  5. The application record binder; and
  6. Money to pay the $80 fee for filing your notice of application plus the $200 fee for filing your petition OR if you cannot afford to pay court fees the requisition for a fee waiver and the affidavit in support of fee waiver.

You should bring at least 4 copies of the petition, notice of application form, and any affidavit (enough for you, your landlord, the Director of the Residential Tenancy Branch, the Attorney General, and anyone else that was a party at the Dispute Resolution Hearing).

Go to the civil registry desk. When you get to the front of the line, tell the clerk at the desk that:

  • You are representing yourself in a judicial review;
  • You are also applying, without notice, for an interim stay of an order of possession; and
  • If applicable, also tell the clerk that you are requesting a fee waiver.

When you are at the registry, ask the registry clerk to review or “vet” your draft interim stay order.  If you are also applying for a fee waiver, you will have your draft order to waive fees to get “vetted” at the same time. The clerk might sign the order(s), which will speed things along when you eventually go in front of a judge.

The registry staff will tell you when you can speak to a judge. Depending on the registry, you might be able to speak to a judge right away, or you might have to wait. Make sure the registry understands that your situation is urgent.

After filing your documents, you should have the following:

  • Petition – at least 4 copies, stamped with a file number and a date stamp (usually inside a rectangle);
  • Affidavit in support of your petition – at least 4 copies, stamped with the file number and a date stamp (usually inside an oval);
  • Notice of application for an interim stay – at least 4 copies, stamped with the file number and a date stamp (usually inside an oval);
  • Order to waive fees, if you obtained a fee waiver – at least one copy, stamped with the file number and an “Entered” stamp; and
  • Draft interim stay order vetted by the registry.

If you applied for a fee waiver, you will probably have copies of the stamped requisition and affidavit for a fee waiver, too. Those are just for your records.

If you are applying for a fee waiver AND a without notice interim stay

There are two different approaches the registry might take if you are applying for a fee waiver and an interim stay without notice:

1. The registry might send you to a courtroom to deal with your fee waiver application and your without notice interim stay application at the same time. If the registry takes this approach, when you have your hearing in front of the judge you will have to tell the judge why you cannot afford the court filing fees as well as why you need an interim stay.

OR

2. The registry might (1) send you to a courtroom to deal with your fee waiver application so you can file your documents, and then (2) send you back to a courtroom, once your documents are filed, to deal with your without notice interim stay application separately. If the registry takes this approach you will first have to speak to a judge or master about your fee waiver application, and then after you file your documents you will have to speak to a judge again about why you need an interim stay.

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Site by the Community Legal Assistance Society. Content available under Creative Commons CC BY-NC licence. This guide is made possible by funding from the British Columbia Ministry of Justice and the Law Foundation of British Columbia. This guide was originally produced by David Mossop, Q.C.
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