14.48: Stay pending appeal

Case Summary

The Applicant sought a Stay pending the Appeal of a Judicial Review which found that a decision of the Complaint Review Committee (the “Committee”) of the College of Physicians and Surgeons of Alberta (the “College”) was reasonable. Feehan J.A. dismissed the Application for a Stay pending Appeal.

As contemplated by Rule 14.48, a single Court of Appeal Justice may hear an Application for a Stay pending Appeal. On such an Application, the Applicant must meet the tri-partite test outlined by the Supreme Court of Canada in RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311. The Applicant failed to do so here. Feehan J.A. was concerned by the Applicant’s intention to litigate by instalment. On a Rule 14.48 Application, litigation by instalment can be considered by the Court at the outset or under the RJR-MacDonald test.

Feehan J.A. noted that it is “inappropriate to short circuit an administrative process” by applying for Judicial Review mid-process. Such short circuits are reserved for rare and exceptional circumstances. The investigation by the Committee into the Applicant was in its early stage, and nothing in the present Application elevated it to the exceptional category. Further, the Court noted that investigated members of the College who seek Judicial Review at every step of the administrative process may be found to be litigating by installment, which can constitute an abuse of process.

On the first branch of the RJR-MacDonald test, Feehan J.A. held that it was up to the panel hearing this Appeal to determine whether the Applicant’s Appeal of the Judicial Review was premature or constituted litigation by installment. On the second branch of the RJR-MacDonald test, Feehan J.A. held that without more, administrative inconveniences did not qualify as irreparable harm. On the third branch of the RJR-MacDonald test, Feehan J.A. held that the balance of convenience did not favor the granting of the Stay. The Stay would prevent the College from fulfilling its legislative mandate, and it is against public policy to prevent the College from carrying out its regulatory function. Lastly, the balance of convenience weighed against litigation by installment.

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