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Federal Court - Appeals - Stay Pending Appeal. Salt River First Nation #195 v. Heron
In Salt River First Nation #195 v. Heron (Fed CA, 2024) the Federal Court of Appeal dismisses a motion to stay an order pending appeal:[5] The parties agree that (i) paragraph 50(1)(b) of the Federal Courts Act, R.S.C. 1985, c. F-7, provides the authority for this Court to grant a stay where "“it is in the interest of justice that the proceedings be stayed”", and (ii) Rule 398(1)(b) of the Federal Courts Rules, S.O.R./98-106, provides that "“[o]n the motion of a person against whom an order has been made, … (b) where a notice of appeal of the order has been issued, a judge of the court that is to hear the appeal may order that it be stayed.”"
[6] The parties also agree that the legal test applicable to SRFN’s motion (with regard to both the stay and the injunction it seeks) is as contemplated in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385 (RJR-MacDonald). The moving party must establish (i) a serious question to be tried, (ii) that it will suffer irreparable harm if the stay (or the injunction) is not granted, and (iii) that the balance of convenience favours granting the stay.
[7] The threshold for establishing a serious question to be tried is generally a low one. The Court must be satisfied that the appeal is not frivolous or vexatious: RJR-MacDonald at 348.
[8] With regard to irreparable harm, the moving party must adduce clear, compelling and non-speculative evidence to establish, on a balance of probabilities, that it will suffer "“harm which either cannot be quantified in monetary terms or which cannot be cured”": RJR-MacDonald at 341; Sheldon M. Chumir Foundation for Ethics in Leadership v. Canada (National Revenue), 2023 FCA 242 at paras. 6–8.
[9] The issue of the balance of convenience involves "“a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits”": RJR-MacDonald at 342.
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[15] Firstly, bearing in mind that evidence of irreparable harm must be clear, compelling and non-speculative, I am not convinced that there is admissible (non-hearsay) and compelling evidence to support the assertion that the harmful effects of the previous political upheaval at SRFN are happening again. Though the ingredients may be present, and such effects might occur, I find the assertion to be speculative and not compelling. I also note that the SRFN even acknowledges that its reputation recovered in time. Accordingly, it is not clear to me that any harm of the kind asserted by SRFN would be irreparable. . Bell Canada v. Beanfield Technologies Inc.
In Bell Canada v. Beanfield Technologies Inc. (Fed CA, 2023) the Federal Court of Appeal moves (unsuccessfully) for a stay pending leave to appeal against a CRTC decision temporarily ordering Bell to provide internet facility access to competitors. This motion is heard on the RJR-McDonald test [fully assessed at paras 19-41]:[16] As noted, Bell seeks to stay the Decision until the disposition of its application for leave to appeal the Decision, and if, leave is granted, until the appeal is decided. If Bell’s motion is granted, Bell would not be required to provide its competitors with temporary access to its FTTP facilities over aggregated wholesale HSA within Ontario and Quebec until this Court rules on Bell’s motion for leave to appeal the Decision, and if, leave is granted, until the appeal is decided.
[17] TekSavvy, QMI, and CNOC oppose the motion.
[18] The test for the granting a stay in a case like this is well-known and requires the moving party to establish that: (1) their appeal raises a serious issue; (2) they would suffer irreparable harm if the stay were not granted; and (3) the balance of convenience favours granting the stay: RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 at 334 (RJR-MacDonald); Canada v. Canadian Council for Refugees, 2008 FCA 40, 2008 CarswellNat 150 at para. 18 (Canadian Council for Refugees). All three of the foregoing criteria must be met for a stay to be issued by a court.
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[41] Given that the RJR-MacDonald test is conjunctive, Bell’s inability to establish that it will suffer irreparable harm means that its motion for stay must be dismissed. It is therefore unnecessary for me to comment on the third factor in the RJR-MacDonald test, being that of the balance of convenience. . Wilson v. Meeches
In Wilson v. Meeches (Fed CA, 2023) the Federal Court of Appeal considered a federal stay pending appeal - and their practical remedy if they lost their motion:[2] The parties agree that the requirements for a stay pending appeal are as set forth in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311: (i) a serious issue to be tried; (ii) irreparable harm to the moving party if no stay is ordered, and (iii) the balance of convenience favouring the moving party. All three requirements must be met, and omission of any one is fatal to the motion for the stay: Bombardier Recreational Products Inc. v. Arctic Cat, Inc., 2020 FCA 116 at para. 10.
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[14] There are at least two options available to the appellants if they remain concerned about continuing exposure to irreparable harm. First, they may seek to expedite the present appeal (I note that no party has raised this option to date). This Court can respond positively to such a request in appropriate circumstances. Second, the appellants may move again for a stay in the event that the circumstances change such that they do stand to suffer irreparable harm if a stay is not granted.
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