Simon's Megalomaniacal Legal Resources

Judicial Review - Stay Pending JR

. Tariq v. Toronto Metropolitan University

In Tariq v. Toronto Metropolitan University (Div Court, 2024) the Divisional Court considered a 'stay pending JR' issue:

[4] ... A stay is not granted to award a party the ultimate relief he seeks in the proceeding, but rather to preserve a reasonable state of affairs until this court may decide the underlying proceeding on the merits. Where, as here, there is no right of appeal, the presumed finality of the impugned decision weighs in the balance of factors to be considered when weighing the totality of circumstances. We see no reason to interfere with the conclusion of Myers J. that there would be no irreparable harm to the moving party from the absence of a stay during the period required to bring this case to a hearing in this court, nor in the conclusion of Myers J. that the balance of convenience weighed in favour of respecting the authority of the University Senate’s autonomy in managing academic affairs within the university. The hearing of the application will be delayed longer than Myers J. had envisaged, but the fault for that delay lies with the moving party, and so the additional delay does not commend itself as a changed circumstance that would lead us to vary the order of Myers J.

. Sayers Foods Ltd. v. Gay Company Limited

In Sayers Foods Ltd. v. Gay Company Limited (Div Court, 2024) the Divisional Court grants a consent stay action against Construction Act (CA) adjudicator's decision, here in the course of a CA 'prompt payment' JR.

Here the court favourably considers the applicant's (novel?) argument that a portion of the RJR stay test was satisfied by the prior 'leave to JR' test:

[4] The Applicant takes the position that it satisfies a test for a stay. It argues that (a) when it obtained leave to commence this application, it satisfied the low threshold on the merits for obtaining a stay pending the hearing; (b) it will suffer irreparable harm if required to pay the determination, in that it may have no way in which to recover the funds if it prevails in the adjudication; and (c) the balance of convenience favours granting a stay in that (i) the hearing has been expedited and is scheduled for early November, (ii) it has a meritorious claim for delay against the Responding Party that exceeds the value of any amount it may owe the Responding Party; and (iii) the Responding Party’s claims are already fully secured by way of lien claims registered against title to the Moving Party’s property.

[5] In light of the circumstances of this case, it is not necessary to review and expound upon the principles involved in considering a stay request in the context of applications for judicial review of prompt payment adjudications under the Construction Act. Accepting, as I do, that there are arguable grounds for the application on the merits (which will usually be the case, given the stringent test for leave), I am not satisfied that the Moving Party has established irreparable harm (if the money is paid into court, as agreed by the Responding Party), and the balance of convenience weighs strongly in favour of requiring payment into court of the full amount in issue.

. Law Society of Ontario v. A.A.

In Law Society of Ontario v. A.A. (Div Court, 2024) the Divisional Court allowed a stay pending JR motion (heard on the RJR test), where the JR was of the Law Society Tribunal (Appeal Division)'s dismissal of an appeal of the Law Society Tribunal's finding that the respondent was of good character:

[5] This is a motion for a stay of the Appeal Division’s decision pending the hearing of the Law Society’s judicial review application. In the alternative, if a stay is not granted and the Law Society is required to license AA before its judicial review application is heard, the Law Society is seeking an order allowing it to disclose AA’s identity to anyone who inquires about his status.

[6] The burden is on the Law Society to establish that it is in the interests of justice to grant a stay of the Appeal Division’s decision. The Law Society must show

a. there is a serious issue to be determined on its judicial review application;

b. irreparable harm will occur if the stay is not granted; and

c. the balance of convenience favours the imposition of a stay.

. Guillaume v. Chief Animal Welfare Inspector

In Guillaume v. Chief Animal Welfare Inspector (Div Court, 2023) the Divisional Court considered a motion to stay [under CJA s.106] administrative decisions from the PAWS Animal Care Review Board (ACRB), pending a JR:

Test for a Stay and Mootness

[4] Because there is no statutory right of appeal of a decision of the ACRB, the automatic stay provision of the Statutory Powers and Procedures Act, R.S.O. 1990, c. S.22 (SPPA) does not apply.

[5] The test for a stay requires that the moving party show that:

(a) the application raises a serious question;

(b) irreparable harm will result if the stay is not granted; and

(c) the balance of convenience favours the granting of a stay.

RJR MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] S.C.J. No. 17 paras. 43, 78-80.

. Sioux Lookout (Municipality) v Clace

In Sioux Lookout (Municipality) v Clace (Div Court, 2023) the Divisional Court considered (and denied) a JR application to permanently stay an HRTO hearing, here for the unusual reason that undue delay in scheduling was caused (in part) by "lack of resources". In these quotes the court considers the test for stay pending JR:

[17] The test for a stay pending judicial review is not disputed:

(i) Is there a serious issue to be tried on the merits;

(ii) Would the applicant suffer irreparable harm if the stay is not granted; and

(iii) Does the balance of convenience favour granting the stay?

. Windrift Adventures Inc. et al. v Chief Animal Welfare Inspector

In Windrift Adventures Inc. et al. v Chief Animal Welfare Inspector (Div Court, 2023) the Divisional Court considered (and granted) a motion for a stay of a 'statement of account' under the PAWS legislation pending a judicial review - here in the course of a multi-proceeding, multi-dog seizure:

The test for granting a stay

[10] To obtain a stay pending appeal, the applicants must satisfy the three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334, that: (1) there is a serious issue to be tried; (2) the applicants will suffer irreparable harm if the stay is not granted; and (3) the balance of convenience favours granting the stay.

[11] It is well-accepted that the factors are not rigid “watertight compartments” or a series of independent hurdles, but are “interrelated in the sense that the overriding question is whether the moving party has shown that it is in the interests of justice to grant a stay.” Strength in meeting one part of the test “may compensate for the weakness of another”: Louis v. Poitras, 2020 ONCA 815 at para. 16.