The Defendant College of Pharmacists decided to amend their Code of Ethics to prohibit inducements and loyalty programs at pharmacies across Alberta. The Plaintiffs sought an Interim Order staying the Defendant’s decision to amend their Code of Ethics pending the hearing of the Plaintiffs’ Application for Judicial Review of that decision. Justice Gill considered the test for granting a Stay in such circumstances. Gill J., citing Rule 3.23, noted that the test for granting a Stay pending determination of a Judicial Review had not been changed from that under former Rule 753.15(1). Justice Gill stated that the test to be applied under the prior Rule was the tri-partite test for an interim injunction as set out by the Supreme Court of Canada in RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311 at 334:

1.      A preliminary assessment must be made of the merits of the case to ensure there is a serious issue to be tried;

2.      It must be determined whether the applicant would suffer irreparable harm if the application were refused; and

3.      An assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

His Lordship noted that the threshold on the first part of the test is low, and there are no specific requirements which must be met to satisfy it. The Court should make a preliminary assessment of the merits without a prolonged examination. Gill J. noted that it was not necessary for the Court to make a preliminary assessment of the outcome of the Judicial Review. Justice Gill was satisfied that the Plaintiffs had met the relatively low threshold for a establishing that there was serious question to be tried. With respect to the second element, irreparable harm, Justice Gill stated that the term “irreparable” referred to the nature of the harm suffered rather than its scale. Gill J. was satisfied that the Plaintiffs would suffer irreparable harm if the Court were to dismiss the Application. With respect to the third branch of the test, the balance of convenience, Justice Gill observed that, in assessing the balance of convenience, the Court must determine which party will suffer greater harm from granting a refusal of the stay pending a decision on the merits. The factors will vary in each case. His Lordship noted that the inducement provisions must be assumed to benefit the public interest and the Court should take that into account when considering the Stay. Upon weighing the balance of convenience, Justice Gill held that the balance favoured granting the Stay. Accordingly, the Plaintiffs met the test for the Stay and the implementation of the inducement prohibitions was stayed pending the resolution of the Judicial Review Application.