What is the test for an application to appeal against release pending appeal under Section 1(1)(b) of the NWTCA?

Yukon, Canada

The following excerpt is from Tan v. Yukon (Government of), 2005 YKSC 19 (CanLII):

S1(1)(b) also requires the applicant to demonstrate that his claim is not “frivolous”. Vertes J.A. interpreted that standard in Kolausok v. H.M.T.Q., 2004 NWTCA 1, a criminal case involving release pending appeal, where the applicant similarly had to establish that his appeal was not frivolous. At paragraph 3, Vertes J.A. said this is a low threshold, where it is unnecessary to show a likelihood of success, and continued as follows: It is simply a requirement to show that there are grounds of appeal that are at least arguable. An appeal that is frivolous is one that has no hope of success. This is not synonymous, however, with a little likelihood of success. The threshold is met if there is at least some prospect of success.

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