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Appeal - Stay Pending Appeal to the Supreme Court of Canada (2). Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency)
In Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency) (Fed CA, 2025) the Federal Court of Appeal dismissed an application seeking to stay enforcement of HAA administrative orders (that had already been unsuccessfully subjected to both JR and Federal Court of Appeal proceedings), this pending "leave to appeal to the Supreme Court of Canada" [under s.65.1(2) of the Supreme Court Act].
Here the court considers this stay application on both the RJR stay-injunction test and Supreme Court Act s.65.1(2) (which adds other factors):B. Should this Court grant a stay under section 65.1 of the Supreme Court Act?
[14] The appellant must meet the requirements of the 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 [RJR-MacDonald]. Specifically, it must establish that there is a serious issue to be determined, that it will suffer irreparable harm if the stay is not granted, and that the balance of convenience favours granting the stay. There are important and considerable interconnections between these three factors, which form the framework within which the Court must assess whether a stay is warranted (Mosaic Potash Esterhazy Limited Partnership v. Potash Corporation of Saskatchewan Inc., 2011 SKCA 120). The fundamental question is whether granting a stay is just and equitable in all the circumstances of the case (Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, [2017] 1 S.C.R. 824 at para. 25). Nonetheless, while the strength in one factor may balance out weakness in another, a stay will not be issued where a prong of the test is not met (College of Physicians and Surgeons of Ontario v. Kilian, 2023 ONCA 281 at para. 8, citing Haudenosaunee Development Institute v. Metrolinx, 2023 ONCA 122 at para. 6).
[15] However, where an application for a stay is brought under section 65.1 of the Supreme Court Act, the framework to decide the application is adjusted by adding two preliminary or threshold steps and by adapting the requirement of a serious question to be tried in the RJR-MacDonald framework. Section 65.1 confers jurisdiction to grant a stay upon a judge of the court appealed from (Merck & Co. v. Nu-Pharm Inc., 2000 CarswellNat 747, 255 N.R. 383 at para. 3 [Merck]). In the case at bar, where the appellant has not yet filed an application for leave to appeal to the Supreme Court, that jurisdiction is conferred by subsection 65.1(2):"Stay of Execution"
"Sursis d’exécution"
"…"
"[…]"
"Additional power for court appealed from"
"Pouvoir de la juridiction inférieure"
"(2) The court appealed from or a judge of that court may exercise the power conferred by subsection (1) before the serving and filing of the notice of application for leave to appeal if satisfied that the party seeking the stay intends to apply for leave to appeal and that delay would result in a miscarriage of justice."
"(2)"" La juridiction inférieure ou un de ses juges, convaincu que la partie qui demande le sursis a l’intention de demander l’autorisation d’appel et que le délai entraînerait un déni de justice, peut exercer le pouvoir prévu au paragraphe (1) avant la signification et le dépôt de l’avis de demande d’autorisation d’appel." [16] The test to be met for granting a stay under subsection 65.1(2) was set out by Cromwell J.A., as he then was, in Nova Scotia (Minister of Community Services) v. F.(B.), 2003 NSCA 125, 2003 CarswellNS 613 at paras. 10-12 [F.(B.)]. Under this test, two preliminary steps precede consideration of the RJR-MacDonald factors.
[17] The first of these steps is a requirement that the appellant establish that it intends to seek leave to appeal the Judgment to the Supreme Court of Canada. Based on the affidavit evidence submitted by the applicant, I am satisfied that it intends to do so by October 3, 2025.
[18] Second, the appellant must demonstrate that delay – waiting to consider the stay application until after the leave application has been filed – would result in a miscarriage of justice. In F.(B.) at paragraph 16, Cromwell J.A. appears to adopt a test of irreparable harm in assessing whether a miscarriage of justice would result: "“if a stay is found to be appropriate, it could come too late [to avoid injustice] if delayed until after the leave application has been filed”" (see also Lamouche v. Calaheson, 2016 ABCA 227, 2016 CarswellAlta 1410 at para. 11). Assuming, without deciding, that this interpretation of miscarriage of justice – one that benefits the appellant – is correct, and for the reasons set out below in the analysis of irreparable harm, I conclude that destruction of the appellant’s ostriches before the leave application is filed would cause the appellant irreparable harm.
[19] Having fulfilled the preliminary steps, the appellant must satisfy the RJR-MacDonald factors, adapted to the context of an application for leave to appeal to the Supreme Court.
(1) Has the appellant demonstrated a serious issue to be tried?
[20] Since this is a stay application pending appeal to the Supreme Court of Canada, the appellant must demonstrate, under the first RJR-MacDonald criterion, that the appeal raises a serious or arguable issue considering the criteria for leave to appeal set out in subsection 40(1) of the Supreme Court Act (Merck at para. 11):"Appellate Jurisdiction"
"Juridiction d’appel"
"…"
"[…]"
"Appeals with leave of Supreme Court"
"Appel avec l’autorisation de la Cour"
"40 (1) Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from that judgment is accordingly granted by the Supreme Court."
"40 (1)"" Sous réserve du paragraphe (3), il peut être interjeté appel devant la Cour de tout jugement, définitif ou autre, rendu par la Cour d’appel fédérale ou par le plus haut tribunal de dernier ressort habilité, dans une province, à juger l’affaire en question, ou par l’un des juges de ces juridictions inférieures, que l’autorisation d’en appeler à la Cour ait ou non été refusée par une autre juridiction, lorsque la Cour estime, compte tenu de l’importance de l’affaire pour le public, ou de l’importance des questions de droit ou des questions mixtes de droit et de fait qu’elle comporte, ou de sa nature ou importance à tout égard, qu’elle devrait en être saisie et lorsqu’elle accorde en conséquence l’autorisation d’en appeler." [21] In other words, the appellant must show that the appeal raises "“an arguable issue of public importance, an important issue of law or mixed law and fact, or that the matter is otherwise of such a nature and significance as to warrant decision by the Supreme Court as required for leave to appeal to that Court under s. 40 of its ""Act”" (F.(B.) at para.11).
[22] As observed by the Alberta Court of Appeal, applying for a stay to the court appealed from under section 65.1 of the Supreme Court Act is "“somewhat of an awkward fit”":The dominant question on an application for leave to the Supreme Court, particularly in civil cases, is whether, in the opinion of that Court, the appeal presents an issue of public importance. I do not purport to know the opinion of the Supreme Court. I can only assess public importance through the lens of my own judgment. I must apply my own judgment; otherwise the “serious question” factor in the RJR analysis would reduce to one of theoretical possibility.
(Cabin Ridge Project Limited v. Alberta, 2025 ABCA 109 at para. 15) . Ahmed v. Abdelmoaein
In Ahmed v. Abdelmoaein (Ont CA, 2025) the Ontario Court of Appeal considered a stay pending leave to appeal (to the Supreme Court of Canada) motion, here in a family law Hague Convention context.
Here the court considers the stay pending leave to appeal, which is the standard RJR test with 3 additional factors: 1. it is a leave request, 2. it is brought in a family law child's 'best interest context', and 3. it is made to the Supreme Court of Canada:[24] The test for a stay pending appeal is set out in RJR-MacDonald v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, and requires the court to consider: whether there is a serious question to be argued on appeal; whether the applicant will suffer irreparable harm if the stay is refused; and, on a balance of convenience, which party would suffer greater harm from the granting or refusal of a stay: BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 283 O.A.C. 321, at para. 16; J.P.B. v. C.B., 2016 ONCA 996, 2 R.F.L. (8th) 48, at para. 14. The factors are not watertight compartments – the strength of one may compensate for weakness of another. The overarching consideration is whether the interests of justice require a stay: International Corona Resources Ltd. v. Lac Minerals Ltd. (1986), 21 C.P.C. (2d) 252 (Ont. C.A.).
[25] 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, and K.K. v. M.M., 2021 ONCA 407, at para. 17. The mandatory return provisions under the Hague Convention, subject only to limited exceptions, presume that a child’s best interests are usually aligned with their prompt return to the jurisdiction of their habitual residence: see F. v. N., 2022 SCC 51, 475 D.L.R. (4th) 387, commenting on analogous return provisions in provincial legislation. At the same time, the requirement of the Hague Convention to secure the “prompt return of children” in appropriate cases does not translate into a more stringent test for a stay: Maharaj v. Maharaj (2001), 2001 CanLII 4919 (ON CA), 146 O.A.C. 317, at para. 15.
Serious Issue to be Tried
[26] When the request is for a stay pending leave to the Supreme Court of Canada, the serious question component must be considered in light of two additional factors: the strict leave requirements of the SCC, under which the proposed appeal must present a question of public or national importance or raise an issue of legal importance; and that the decision of first instance has already been considered by an appellate court: Leis v. Leis, 2011 MBCA 109, 275 Man. R. (2d) 55, at paras. 4-5. As stated in Leis, at para. 6, “the threshold on the ‘serious question’ factor is much higher on applications for stay pending appeal to the Supreme Court of Canada than those for stay pending appeal to provincial appellate courts.” See also BTR GLobal, at para. 18; N. v. F., at paras. 24-25.
....
[28] In my view, the mother’s proposed appeal does not raise a serious issue to be tried in the context of a leave application to the Supreme Court. It raises questions of neither national nor legal importance. The law on the questions she raises is well-settled, with extensive direction already in place from the Supreme Court to guide lower courts. The mother’s proposed appeal seeks to re-argue factual findings that can only be displaced based on palpable and overriding error.
....
Irreparable Harm to the Applicant or the Child
[34] Irreparable harm is characterized by the nature, rather than the magnitude of harm. It is harm which either cannot be quantified in monetary terms or cannot be cured, usually because one party cannot collect damages from the other: RJR MacDonald Inc., at p. 341.
[35] A parent cannot engineer harmful circumstances and then rely on that “self-engineered harm” to indefinitely frustrate a return order: F. v. N., 2022 SCC 51, 475 D.L.R. (4th) 387, at paras. 82, 166.
....
Balance of Convenience
[39] Assessing the balance of convenience requires the court to determine which party will suffer greater harm from the granting or refusal of a stay, as determined on the unique facts of each case.
[40] Where a child’s interests are at the heart of the appeal, the child’s best interests are the overarching consideration.
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