The Applicants sought Judicial Review of decisions of the Respondent. The Respondent investigated and found evidence suggesting the Applicant’s facility contravened certain Regulations. That determination was sent to a hearing of an administrative panel, and was found to be accurate. The Applicants sought Judicial Review of the hearing decision, along with a Stay of the decision under review, pursuant to Rule 3.23.

The Court noted that the test under Rule 3.23 is the same as a test for an interlocutory Injunction arising out of RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311. The Respondent argued that the Stay Application was, in fact, seeking a mandatory Injunction, as the decision cancelled the Applicants’ permit, which would then have to be reinstated. Therefore, the more stringent test set out in R v Canadian Broadcasting Corp, 2018 SCC 5, should apply. However, Justice Friesen highlighted that the fundamental question before the Court is always fairness. That is, whether the relief sought would be just and equitable in all the circumstances. The Court found that no unfairness would result from applying the higher test. The Applicants were therefore required to prove a strong prima facie case that their Judicial Review was likely to succeed. They failed to do so and, therefore, the Court denied the Stay Application.