The Respondent town passed a bylaw changing the zoning designation of certain lands, permitting their development. The Applicant objected to the re-zoning and applied for Judicial Review and an interim Stay of the operation of the bylaw was put in place. The Applicant sought an extension of the Interim Stay, pending the hearing of the Judicial Review Application. The Respondent cross applied under Rule 7.1 to have the Applicant’s Claim dismissed.

The parties agreed that the appropriate test under Rule 3.23 is the tripartite test articulated in RJR-MacDonald Inc. v Canada (Attorney General), 1994 CanLII 117 (SCC), 1994 CanLII 117. Under the first branch of the test, whether the issue is a serious question to be tried, the parties agreed that the threshold is low, only requiring a serious question, as opposed to a frivolous or vexatious one. Of the Applicant’s five grounds for Judicial Review, Rawlins J. found that all but one did not meet the low threshold required to constitute a serious issue, and thus, granted the Respondent’s Cross Application with respect to those grounds. Rawlins J. also held that, despite the Applicant’s interpretation of the bylaw being “strained” and his arguments weak, they were not frivolous and vexatious. Justice Rawlins reluctantly found that the Applicant met this portion of the test.

In considering whether a failure to grant the Stay would result in irreparable harm, the parties again agreed that the applicable standard is whether there is a clear and non-speculative risk of harm not compensable by costs. Rawlins J. held that irreparable harm would be suffered because the developer of the lands was prepared to proceed with the development.

Rawlins J. concluded that the balance of convenience favoured the Applicant, given the nature of the potential harm, and the fact that the Judicial Review hearing was scheduled for only 5 months from the hearing of the Stay Application. Accordingly, the Applicant satisfied the tripartite test, and the Stay was granted. The Respondent’s Cross Application with respect to this ground therefore failed.