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Appeal - Stay Pending Appeal (4). Universal Ostrich Farms Inc. v. Canada (Canadian Food Inspection Agency)
In Universal Ostrich Farms Inc. v. Canada (Canadian Food Inspection Agency) (Fed CA, 2025) the Federal Court of Appeal allowed an stay pending appeal motion regarding an order "made by the Canadian Food Inspection Agency (CFIA) under section 48 of the Health of Animals Act" (for culling ostriches).
On the RJR stay test the court commented:[3] To succeed in its motion, the appellant must demonstrate that it meets the requirements of the conjunctive tripartite test for granting a stay or interlocutory injunction set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311. Specifically, the appellant must establish that the appeal raises a serious issue, that it will suffer irreparable harm if the stay is not granted, and that the balance of convenience favours granting the stay.
[4] Regarding the first element of the test, the appellant raises several grounds of appeal in the notice of appeal. In particular, the appellant submits that the Federal Court erred in its analysis of the CFIA’s "“stamping-out”" policy and the CFIA’s mandate, that it improperly deferred to the CFIA’s expertise in conducting its reasonableness review and failed to fully consider the consequences of the decisions on the appellant, the ostrich herd and the public interest in scientific research, and that it erred in refusing to consider relevant evidence relating to the CFIA’s decisions to restrict or deny testing and in concluding that the CFIA’s dealings with the appellant met the requisite degree of procedural fairness. The appellant further asserts that the Federal Court’s decision should be set aside due to the "“ineffective assistance”" of the appellant’s former counsel at the hearing of the applications.
[5] The threshold for establishing a serious issue is generally a low one and will be met if the issues raised in the notice of appeal are not frivolous or vexatious (RJR-MacDonald at 348). I am satisfied that the appellant has established that the appeal raises a serious issue.
[6] With respect to the second element of the test, the appellant submits that it will suffer irreparable harm if the stay is not granted. The appellant alleges that the disposal of the ostriches would mean the closure of the appellant’s 25-year-old business, the loss of the appellant’s decades-long efforts in cultivating a unique flock of ostriches and the end of the appellant’s scientific and commercial ventures to harvest antibodies from the ostriches’ blood or eggs to create a biomedical product for treating or diagnosing avian influenza.
[7] As the Supreme Court of Canada noted in RJR-MacDonald, irreparable harm refers to the nature of the harm suffered, as opposed to its magnitude. It is "“harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other”" (RJR-MacDonald at 341). The Supreme Court of Canada provided that such harm could include instances where the party seeking the stay will be put out of business by the court’s decision or will suffer permanent market loss or irreversible damage to its business reputation (RJR-MacDonald at 341).
[8] I accept that the depopulation of the appellant’s farm will have a real and negative impact on the appellant. It will undoubtedly seriously disrupt the appellant’s business operations and cause the appellant severe economic loss. Although the appellant may be entitled to compensation under the Compensation for Destroyed Animals and Things Regulations, S.O.R./2000-233, the compensation for an ostrich is limited to a maximum of $3,000 per animal, an amount that is lower than the alleged average price of approximately $7,500 per ostrich. This Court held in David Hunt Farms Ltd. v. Canada (Minister of Agriculture) (C.A.), 1994 CanLII 3464 (FCA), [1994] 2 FC 625, that where the "“amount of the recoverable loss is restricted by statute, and that amount is significantly less than the actual loss to be incurred if the injunction does not issue, irreparable harm is established” "(David Hunt Farms at 633).
[9] Likewise, I accept that a refusal to grant the stay will likely render the appeal moot as the very subject matter of the appeal will be destroyed.
[10] I am therefore satisfied that the appellant will be exposed to irreparable harm if the stay is not granted.
[11] With respect to the third element of the test, I note that a stay was granted by the Federal Court on February 1, 2025, and that the respondent has agreed not to proceed with the disposal of the ostriches pending the determination of the stay motion. That said, I accept that further delay can potentially increase the risks posed by the HPAI virus and cause harm to Canada’s international trade agreements. I also agree that the public interest in the CFIA being able to carry out its mandate of mitigating risks posed by infectious animal diseases is of central importance in determining the balance of convenience. Conversely, the appellant is also entitled to a meaningful right of appeal. I am satisfied that in this case, an expedited hearing of the appeal can achieve an appropriate balance between these two competing interests.
[12] Accordingly, an expedited hearing will be ordered and the stay will thus be granted, but only in respect to the notice dated December 31, 2024, requiring the appellant to dispose of the ostriches pursuant to subsection 48(1) of the HAA. The other two orders sought by the appellant are denied. The stay will be in effect pending the disposition of the appeal, or until another date should the Court order otherwise. . Diallo v. Bah
In Diallo v. Bah (Ont Divisional Ct, 2025) the Divisional Court grants a stay with respect to an interim order "permitting the respondent mother to relocate with the parties' two young children to Winnipeg, pending final determination of the issue".
The court considers FLR and RCP provisions, and the (RJR) test, regarding stays pending appeal - here of interlocutory orders:[11] The parties agree that the court has jurisdiction to grant a stay pending determination of the appeal and/or the motion for leave to appeal. Section 35 of the Family Law Rules provides:(35) A temporary or final order may be stayed on any conditions that the court considers appropriate, (a) by an order of the court that made the order; (b) by an order of the Superior Court of Justice. [12] Section 63.02(1) of the Rules of Civil Procedure provides:63.02 (1) An interlocutory or final order may be stayed on such terms as are just, (a) by an order of the court whose decision is to be appealed; (b) by an order of a judge of the court to which a motion for leave to appeal has been made or to which an appeal has been taken. [13] The case law sets out a three-part test for the court to consider when determining whether to exercise its discretion and grant a stay of the order. The considerations are as follows:(a) That there is some merit to the appeal in the sense that there is a serious question to be determined. Where leave to appeal is required, the test is modified, in that there must be a serious question to be determined on the motion for leave to appeal;
(b) That irreparable harm would be occasioned to the Appellant if the stay was refused (although when the case involves children, the irreparable harm is considered vis a vis the children); and
(c) That on balance, the inconvenience to the Appellant if the stay was refused would be greater than the inconvenience to the Respondent if the stay was granted. [14] As with all decisions involving children, the overriding principle is the best interest of the children when considering the factors above, not those of the parties. . Royal Bank of Canada v. John
In Royal Bank of Canada v. John (Ont Divisional Ct, 2025) the Divisional Court considered a motion for a stay pending appeal [under R63.02]:[11] A court may grant a stay pending an appeal under Rule 63.02 of the Rules of Civil Procedure. However, leave to appeal has not been granted. In any event, this Court has a general authority, pursuant to s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43, to stay any proceeding on such terms as are just.
[12] The principles related to the granting of the stay of an Order pending an appeal were described in SS&C Technologies Canada Corp. v. The Bank of New York Mellon Corporation, 2022 ONCA 373, and are equally applicable in a case, such as this one, where leave to appeal has not been granted. Lauwers J.A. described the applicable principles as follows:23 The applicable law on staying a judgment pending appeal is found in RJR-MacDonald Inc. v. Canada (A.G.) 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, applied by analogy. The test for a stay is whether: (1) there is a serious issue to be tried; (2) the appellants will suffer irreparable harm if the stay is not granted; and (3) the balance of convenience favours a stay pending the appeal. "These three criteria are not watertight compartments," Laskin J.A. observed in Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674, at p. 677, because: "The strength of one may compensate for the weakness of another". He noted that "[g]enerally, the court must decide whether the interests of justice call for a stay", citing International Corona Resources Ltd. v. LAC Minerals Ltd. (1986) 21 C.P.C. (2d) 252 (Ont. C.A.).
24 The overarching consideration is the interests of justice. I am mindful of the caution expressed by Robert J. Sharpe in his text Injunctions and Specific Performance, loose-leaf, (Toronto: Canada Law Book, 2021), at para. 2:6: "The weight to be placed upon the preliminary assessment of the relative strength of the plaintiff's case is a delicate matter which will vary depending upon the context and circumstances". This caution applies with necessary modifications to a stay pending appeal in the context of an allegation of judicial bias. [13] Whether there is a "serious issue to be tried" requires a preliminary assessment of the strength of the moving party’s case. It only requires proof that the appeal is neither frivolous nor vexatious. In this case leave to appeal has not been granted and thus there may not be any issue to be tried. In particular, an allegation of a reasonable apprehension of bias only raises a serious issue if there is a “real likelihood or probability of bias beyond a mere suspicion”: SS&C Technologies Canada Corp., para. 47. That is not the case here. To be clear, I am not determining the merits of the motion for leave to appeal. However, on a preliminary assessment of the strength of this appeal, I find that the strength of the issues to be tried are weak.
[14] Irreparable harm is harm which either cannot be quantified in monetary terms or which cannot be cured. The defendant states that he will suffer irreparable harm if this stay is not granted as he believes that the motion for summary judgment will be granted and the judgment will be enforced. In my view, the risk described by the defendant is not irreparable harm. RBC states that the granting of a stay would likely further delay the adjudication of the RBC’s claim and reduce the chances of recovery. There is no evidence to suggest that RBC’s chances of recovery will be any worse if the motion for summary judgment is delayed by several months.
[15] I find that the balance of convenience does not favour a stay pending the leave motion.
[16] I find that the interests of justice favour a dismissal of the motion for a stay of the Order. . 1995636 Ontario Inc. C.O.B. 2B Developments v. 5010729 Ontario Inc. C.O.B. as Astute Capital Corp.
In 1995636 Ontario Inc. C.O.B. 2B Developments v. 5010729 Ontario Inc. C.O.B. as Astute Capital Corp. (Ont Divisional Ct, 2024) the Ontario Court of Appeal allowed an appeal from a dismissed motion to stay [under R63.02(1)], here of an order discharging a CA lien.
The test for such a stay is the 'RJR-MacDonald stay (and 'interlocutory injunction') test:[4] As stated in Carvalho Estate v. Verma, 2024 ONCA 222, at para. 4:The overarching consideration is whether a stay is in the interests of justice: Sase Aggregate Ltd. v. Langdon, 2023 ONCA 644, at para. 10. This is determined by a consideration of the factors in RJR-MacDonald Inc v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at pp. 347-49:(a) whether the appeal raises a serious question to be tried;
(b) whether the moving party would suffer irreparable harm if the stay were refused; and
(c) the balance of convenience, namely which of the parties would suffer greater harm from the granting or refusal of the stay. [5] The Court of Appeal further stated that: “The relative strengths of these factors need not be equal. One factor may favour a stay more strongly than another.”
[6] All three factors must be satisfied for a stay to be granted: R. v. Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 S.C.R. 196, at para. 12.
Does the appeal raise a serious issue to be tried?
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[8] At this stage of the appeal, this court must be satisfied that the appeal is neither frivolous, that is, devoid of merit or has little prospect of success, or it is vexatious, meant to annoy or embarrass. See Carvalho at para. 7. It is a low threshold.
[9] The standard of review at the appeal is not a re-hearing of the merits but whether there has been an error of law or a palpable and overriding error of fact.
....
[40] At para. 19 in Warren Woods Land Corporation v. 1636891 Ontario Inc., 2012 ONCA 12, at para. 19, the court stated that “Irreparable harm is harm that cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other”. However, the lien holds specialized relief and is significant right under the Act and if a stay is not granted, it will be lost forever.
....
[49] In Morguard Residential v. Mandel, 2017 ONCA 177, at para. 18 the court stated that a stay is a discretionary remedy and hence the court must consider the “clean hands” doctrine. At para. 29, the court found that the Landlord and Tenant Board’s finding of bad faith on the part of the moving parties militated against the exercise of the court’s discretion to stay the order. . A.A. v. Z.M.
In A.A. v. Z.M. (Ont CA, 2024) the Ontario Court of Appeal granted a CJA s.7(5) panel motion, this to set aside a denied single judge set aside motion order, this against a denial of a stay pending appeal motion.
In these quotes the court considered the stay pending appeal RJR test:[17] The test for a stay pending appeal is well-established. First, the moving party must show that on a preliminary assessment of the merits of the case, there is a serious question to be tried; second, the moving party must show that she will suffer irreparable harm if the stay is not granted; and third, she must show that the balance of convenience favours granting the stay: r. 63.02(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334. The criteria are not watertight compartments, and the strength of one may compensate for the weakness of another: Circuit World Corp v. Lesperance, 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674, at para. 8. In cases involving children, “the overriding consideration … is the best interests of the child. In other words, the court must be satisfied that it is in the best interests of the child to grant a stay”: N. v. F., 2021 ONCA 688, 158 O.R. (3d) 565, at para. 36, citing D.C. v T.B., 2021 ONCA 562, at para. 9; K.K. v. M.M., 2021 ONCA 407, at para. 17.
[18] Every decision on a stay motion involves a discretionary balancing of factors and is entitled to significant deference. On a review, a panel may only interfere where the motion judge failed to identify the applicable principles, erred in principle, or reached an unreasonable result: Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th) 228, at para. 18; Yaiguaje v. Chevron Corporation, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 21.
[19] In my view, the stay motion judge erred in principle in refusing to grant the stay. The existence of serious questions on appeal, the possibility of significant irreparable harm to the mother and/or child from not granting the stay, and the balance of convenience all augured in favour of granting the stay. Applying the “justice of the case” test as articulated in Oliveira v. Oliveira, 2022 ONCA 218, and considering all the relevant factors, I would set aside the order of the stay motion judge and grant the stay pending the disposition of the appeal.
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