What are the considerations used in settling an application for leave to appeal rule 38 of the Court of Appeal?

Newfoundland and Labrador, Canada


The following excerpt is from Bank of Montreal v. Mercer, 1998 CanLII 18098 (NL CA):

In Langor v. Spurrell, I stated that in dealing with an application for leave to appeal the "overriding consideration ought to involve a balancing of the impact on the efficient operation of the trial process if the appeal were to be dealt with immediately, against whether it would be unjust to require the appellant to await the outcome of the trial before appealing." Applying the considerations listed in Langor, it appears that there are no conflicting decisions on the principles to be applied in settling rule 38 applications that require clarification and there are no significant points of law that require clarification on the merits of the appeal that mandate intervention at this stage. Furthermore, the essence of the complaint with the applications judge's decision is with the manner of the exercise of his discretion rather than the claimed misapplication of a settled principle.

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