3.23: Stay of decision

Case Summary

The Minister of Agriculture and Forestry (the “Minister”) had put guidelines (the “Guidelines”) into place to protect caribou and control forest harvest by the lumber industry. The Guidelines affected ANC Timber Ltd. (“ANC”) licenses for forest harvest and ANC’s paper mill business. ANC made an Application to stay the Guidelines.

The Court attempted to define ANC’s Application, but ultimately found that the Application could not proceed. The Court found that interim injunctions were not an available against the Crown pursuant to section 17 of the Proceedings Against the Crown Act, RSA 2000, c P-25. The Court held that stay of proceedings and interlocutory injunctions are of the same nature and therefore, a mandatory interlocutory stay is also not an action that can be taken against the Crown. The Application was therefore dismissed.

Despite that the Application could not be made against the Crown, the Court then alternatively considered whether ANC had met the onus to establish a stay as an appropriate remedy set out in Rule 3.23. Rule 3.23 gives the Court the ability to stay the operation of a decision or act pending the outcome of an originating Application for Judicial Review. In order to obtain a stay, the Applicant bears the burden of meeting the tests from R v Canadian Broadcasting Corp, 2018 SCC 5 (CanLII) (“CBC”), which provides that where an Applicant seeks a mandatory injunction, the Applicant must establish a strong prima facie case; and RJR MacDonald v Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311 (“RJR”), which provides that when an Applicant seeks a prohibitive injunction, the Applicant must establish (1) a strong prima facie case or there is a serious question to be tried; (2) the Applicant will suffer irreparable harm if the stay is refused; and (3) on a balance of convenience, the Applicant will suffer greater harm without the stay.

The Court considered the test in CBC and found that ANC had not established a strong prima facie case.

As for the elements of the test from RJR, the Court found that ANC had met the “low threshold” of the first element of the test. In determining whether an Applicant would suffer irreparable harm (the second part of the test), the Court stated that ANC must show they would suffer actual harm which could not be compensated by damages, but acknowledged this did not require complete impossibility of compensation by damages. The Court was unconvinced by ANC’s argument, which the Court found was mere speculation or conjecture, and ANC failed the second part of the test. The Court then considered the third aspect of the test, considering the public interest and the status quo. As noted in RJR, the Minister has a low bar to meet to show harm to public interest. The Guidelines and changes to ANC’s operations were put forward in response to threats to the caribou population and an effort to exercise sustainable forest management principles. The balance of convenience favoured the Minister when considering the public interest factor. The Court also considered the status quo argument put forward by ANC, but the Court found that they could not identify what would be the status quo and hence this factor was neutral in regard to the balance of convenience. The Court therefore found that a stay pursuant to Rule 3.23 would also not be appropriate.

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