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Injunctions - RJR - General. Deeb v. Canadian Investment Regulatory Organization
In Deeb v. Canadian Investment Regulatory Organization (Ont Div Ct, 2026) the Ontario Divisional Court considered the RJR interlocutory stay pending test, and it's elements:[17] In RJR-MacDonald, the Supreme Court of Canada set out a three-part test for determining whether a court should exercise its discretion to grant an interlocutory stay: (1) is there a serious issue to be tried; (2) would the person applying for the stay suffer irreparable harm if the stay were not granted; and (3) is the balance of convenience in favour of granting the interlocutory stay or denying it. See RJR-MacDonald at 334.
[18] While the three parts of the test are factors to consider, they are not prerequisites. The three factors are not watertight compartments, and the strength of one may compensate for the weakness of another. The ultimate test for granting a stay is the interests of justice. Thus, the fundamental question is whether the granting of a stay is just and equitable in all of the circumstances of the case. This will necessarily be context-specific. See Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 at para. 25, M & M Homes Inc. v. 2088556 Ontario Inc., 2020 ONCA 134 at para. 42, and Zafar v. Saiyid, 2017 ONCA 919 at para. 18.
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[23] At the first stage of the test, the judge is to undertake a preliminary investigation of the merits. However, a prolonged examination of the merits is generally neither necessary nor desirable. Once satisfied that the case on the merits is neither frivolous nor vexatious, the judge should proceed to consider the second and third stages of the test, even if the judge is of the opinion that the plaintiff is unlikely to succeed at trial. See RJR-MacDonald at 337-338, 348.
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[38] In RJR-MacDonald, the Supreme Court of Canada stated that the “irreparable harm” factor refers to the nature of the harm suffered rather than its magnitude. It includes harm that cannot be quantified in monetary terms. Quantifiable financial loss may also be considered irreparable harm so long as it is unclear that such loss could be recovered at the time of a decision on the merits (e.g., because one party cannot collect damages from the other). The Supreme Court of Canada gave the following examples of irreparable harm: where one party will be put out of business by the court’s decision, and where one party will suffer permanent market loss or irrevocable damage to its business reputation. See RJR-MacDonald at 341, 348.
[39] The Respondents rely on Sazant, a decision on a stay motion involving a doctor whose right to practice had been revoked following disciplinary proceedings. In Sazant, La Forme J.A. held that evidence of irreparable harm must be clear and not speculative, and that a professional’s financial loss as a result of revocation was far from being dispositive. See Sazant at para. 11. La Forme J.A. suggested that the type of harm that was almost always present in proceedings related to regulated professionals was insufficient to show irreparable harm and that something more was required. He found that Dr. Sazant had not established that his practice would be lost forever. Ultimately, he concluded that Dr. Sazant had not met the second part of the test.
[40] The Respondents also rely on Kitmitto, a decision of this Court, which applies the principles set out in Sazant in a stay motion regarding sanctions imposed by the Tribunal in relation to violations of the Securities Act. Kitmotto reiterates that the mere possibility of harm is not enough to satisfy the irreparable harm test, and that some financial loss is not irreparable harm. See Kitmitto at paras. 13-14, 19, 20, 26, 27.
[41] The Applicant has referred to a number of cases that appear to adopt a more flexible approach to irreparable harm than in Sazant and Kitmitto. See, e.g., International Steel Services Inc. v. Dynatec Madagasgar S.A., 2016 ONSC 2810 at paras. 51-52, 60 and EVS (Edge Value Solutions) Canada Ltd. v. Nestle Canada Inc., 2022 ONSC 7003 at para. 50, where it was held that a plaintiff is only required to establish a meaningful risk of irreparable harm or a meaningful doubt as to the adequacy of damages if the stay is not granted.
[42] I note that the Court of Appeal has recently cited Kitmotto and stated that “[t]he mere possibility of financial harm, and even bankruptcy, is not enough to satisfy the irreparable harm test”. The Court of Appeal also stated that an applicant for a stay cannot rely on speculative evidence about irreparable harm, and must establish that there is a high degree of probability that permanent and non-compensable harm will in fact occur. See Ontario Securities Commission v. Cacoeli Asset Management Inc., 2025 ONCA 465 at paras. 18, 30 (“Cacoeli”).
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[48] Under the last branch of the test, the court must determine which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory stay pending a decision on the merits. The factors to be considered at this stage are numerous and will vary in each individual case. See RJR-MacDonald at 342-343.
[49] Where the authority of a law enforcement agency is challenged, no interlocutory stay should issue to restrain that authority from performing its duties to the public unless, in the balance of convenience, the public interest is taken into consideration and given the weight it should carry. See RJR-MacDonald at 343 and Cacoeli at para. 41.
[50] In Kitmitto, this Court found that it is necessary for the public to have confidence in the integrity of the capital markets, and confidence that the laws regulating the markets will be rigorously enforced. See Kitmitto at para. 33. See also Azeff v. Ontario Securities Commission, 2016 ONSC 1279 at paras. 16-17. In this case, serious findings of professional misconduct have been made against Mr. Deeb.
[51] As stated above, I was prepared to assume that, based on a flexible approach to irreparable harm, Mr. Deeb will suffer irreparable harm if a stay is not granted. However, the weight to be given to this “irreparable harm” must be determined at this stage. Among other things, although the magnitude of the harm is not a proper consideration under the irreparable harm branch of the test, it is a proper consideration at the balance of convenience stage.
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[55] .... significant weight must be given to the public interest in this case given the serious findings of professional misconduct made by the CIRO panel. There is no question that the Liability and Sanctions Decisions were made pursuant to CIRO’s duty to act in the public interest, including the public interest in the protection of investors, the effective regulation of securities markets, and the confidence of the public in fair and efficient capital markets.
[56] Given the substantial weaknesses in the evidence regarding the harm suffered by Mr. Deeb and the important consideration that must be given to the public interest in this case, I find that the balance of convenience does not favour the granting of a stay. . West Carleton Community Alliance v. The City of Ottawa et al
In West Carleton Community Alliance v. The City of Ottawa et al (Ont Div Ct, 2026) the Ontario Divisional Court partially granted a motion, here seeking a stay of a by-law amendment's "implementation pending the hearing of its application" and further, the striking of "portions of the application and portions of the Applicant’s record" - these within a JR brought "to quash both the Amendment and the MSR" ["Municipal Support Resolution"].
Here the court considers the stay RJR-McDonald test:[10] The parties agree that the stay motion is governed by the three-part test in R.J.R.-Macdonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311: Is there a serious issue to be tried? Would the Applicant suffer irreparable harm if the stay is not granted? Does the balance of convenience favour a stay?
[11] Although strength in one part of the test may make up for weakness in another, the Applicant must meet all three prongs of the test in order to succeed: Haudenosaunee Development Institute v. Metrolinx, 2023 ONCA 122, at para. 6.
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[14] The parties agree that the threshold on this part of the test for a stay is a low one. The court is to make a preliminary assessment of the merits of the case. If the court is satisfied that the application is not frivolous or vexatious, it is to go on to consider the second and third parts of the test, even if the court believes the application is unlikely to succeed. The court is not to engage in a prolonged assessment of the merits unless the stay would have the effect of determining the issue on a final basis, or the question at issue is one of law alone: R.J.R.-Macdonald Inc.
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ii) Will the Applicant suffer irreparable harm if there is no stay?
[27] Irreparable harm refers to the nature, not the magnitude, of the harm suffered: R.J.R.-Macdonald Inc.. The Court in R.J.R.-Macdonald Inc. included the “permanent loss of natural resources” as an example of harm that may be irreparable. The evidence is required to be clear and not speculative.
[28] In a case involving environmental damage, the court should not insist on irrefutable evidence of irreparable harm. Evidence that would support a finding that irreparable harm would be suffered is sufficient. Ottawa (City) v. Ottawa (City) (Chief Building Official), (2003) 2003 CanLII 64304 (ON SC), 67 O.R. (3d) 490 (S.C.), at para. 24. . Royce Presidential Investments Inc. v. Valour Group Inc.
In Royce Presidential Investments Inc. v. Valour Group Inc. (Ont CA, 2025) the Ontario Court of Appeal dismissed a motion for a stay pending appeal, here in an appeal against an "order striking out their statement of defence" for non-compliance with earlier orders.
Here the court considers the RJR test elements:[20] The relevant criteria for a stay sought under r. 63.02(1) of the Rules of Civil Procedure are not controversial. The overarching consideration is whether the justice of the case warrants the requested stay. Informing that consideration are the following factors that the moving party must satisfy on a balance of probabilities: 1) the appeal raises a serious issue to be determined on the appeal; 2) the moving party will likely suffer irreparable harm; and 3) the balance of convenience favours the granting of the requested stay: Hermina Developments Inc. v. Epireon Capital Limited, 2025 ONCA 559, at paras. 11-12; 2642948 Ontario Inc. v. Jonny’s Antiques Ltd., 2025 ONCA 381, at para. 17.
[21] None of these factors are watertight categories; the strength of one may compensate for the weakness of the others: Zafar v. Saiyid, 2017 ONCA 919, at para. 18. However, all three factors must be satisfied for a stay to be granted: Carvalho Estate v. Verma, 2024 ONCA 222, 170 O.R. (3d) 781, at para. 5. . Rappaport v. Law Society Ontario [stay pending appeal]
In Rappaport v. Law Society Ontario (Div Court, 2024) the Divisional Court granted a stay pending appeal, here of a decision of the Appeal Division of the Law Society Tribunal that "imposed a five-month suspension" for professional misconduct:[4] The onus is on Mr. Rappaport to demonstrate that it is in the interest of justice to grant him a stay of the Appeal Division’s decision pending the outcome of his appeal in this Court: Louis v. Poitras, 2020 ONCA 815at para. 16. When considering whether it is in the interest of justice to grant a stay, I must consider three interrelated factors: (1) whether there is a serious issue to be determined on the appeal; (2) whether Mr. Rappaport will suffer irreparable harm if the stay is not granted; and (3) whether the balance of convenience favours granting or denying the stay: RJR-MacDonald Inc. v. Canada (Attorney General, 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334, Kitmitto et al. v. Ontario Securities Commission, 2023 ONSC 1739 at para. 5.
[5] For the following reasons, I grant Mr. Rappaport’s motion.
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[7] The threshold for establishing a serious issue on appeal is low. My task is not to engage in a thorough analysis of the merits of Mr. Rappaport’s appeal. So long as I am satisfied that some of the grounds Mr. Rappaport advanced in his Notice of Appeal are neither vexatious nor frivolous, I should consider the second and third elements of the tests, even if I think he is unlikely to succeed on his appeal.
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C. Irreparable Harm
[13] Irreparable harm is a harm that cannot be quantified in monetary terms or a harm that cannot be cured: RJ-MacDonald Inc. v. Canada, 1994 CanLII 117 (SCC), [1994] 1 SCR 311 at p. 341. Evidence of possible, or likely, harm is not enough to satisfy this element of the test. The evidence must show that the party will suffer irreparable harm: Kitmitto et al v. Ontario Securities Commission, 2023 ONSC 1739 (Div. Ct.) at para. 13. Similarly, something more is required to establish irreparable harm than the usual financial loss, loss of professional identity or reputational loss that results from the suspension or revocation of a licence to practise a regulated profession: Kitmitto, at para. 14.
[14] In his affidavit, Mr. Rappaport describes the harm he will suffer if he is required to serve the five-month suspension before his appeal is heard. First, he says he will lose all his clients because, as a sole practitioner, he will have to refer all his clients to another lawyer. Second, he argues he will suffer significant financial harm if he loses his income for five months but has to continue paying his business expenses. Mr. Rappaport was not cross-examined on his affidavit.
[15] The Law Society argues the type of harm Mr. Rappaport describes in his affidavit does not meet the test for “irreparable harm.” The Law Society relies on the decision of this Court in Kitmitto et al v. Ontario Securities Commission, 2023 ONSC 1739 in support of its position. In that case, the three appellants were found to have committed insider trading contrary to the Securities Act, RSO 1990, c.S.5. The Capital Markets Tribunal banned each appellant from market participation for 10 years or more and ordered them to pay financial penalties ranging from $600,000 to $1,000,000. Justice Schabas was not satisfied that denying the appellants a stay of the Tribunal’s decision pending their appeals to the Divisional Court would cause them irreparable harm. Two of the appellants, Kitmitto and Vannatta, argued that they may have to declare bankruptcy if a stay was not granted. Justice Schabas found that their evidence did not establish irreparable harm because bankruptcy was only a possibility, not a certainty. The third appellant, Goss, argued that the trading ban would cause him irreparable harm because he would lose his clients and that would have a devastating impact on his own sense of identity and self-worth. Justice Schabas did not accept Goss’s evidence. Justice Schabas was not convinced that Goss would lose all, or even most, of his clients because other advisors in Goss’s firm could manage his accounts until the appeal was decided.
[16] In my view, Kitmitto is distinguishable on its facts from Mr. Rappaport’s case for two reasons. First, I accept Mr. Rappaport’s evidence that he will lose all or most of his clients if he is required to serve his five-month suspension now. Mr. Rappaport is a sole practitioner who practises family and estates law in Ottawa. His affidavit states that most of his clients have upcoming court appearances. Unlike in Kitmitto, Mr. Rappaport does not have partners or associates who can manage his files or appear on behalf of his clients during his suspension. Mr. Rappaport’s clients will have to be referred to other lawyers while Mr. Rappaport is serving his suspension. I accept that few, if any, of those clients will return to Mr. Rappaport five months later.
[17] Second, if the Appeal Division’s decision is not stayed, Mr. Rappaport will likely have served the entire five-month suspension before his appeal can be heard and decided. That was not true in Kitmitto where the appellants would only have served a fraction of their market ban while the appeal was ongoing. In my view, fully serving an administrative suspension before an appeal can be heard is the sort of harm that cannot be quantified and could be cured if Mr. Rappaport is ultimately successful on his appeal.
[18] I am, therefore, satisfied that Mr. Rappaport will suffer irreparable harm if the Appeal Division’s decision is not stayed.
D. Balance of Convenience
[19] Under the third branch of the test, I must consider which party will suffer greater harm by granting or refusing a stay: Urbancorp Toronto Management Inc, at para. 20.
[20] I have already found that Mr. Rappaport will suffer irreparable harm if he is denied a stay.
[21] On the other hand, granting a stay could damage the reputation of the legal profession and the public confidence in the Law Society’s ability to regulate its members. Mr. Rappaport has been found to have committed professional misconduct by failing to serve his clients and by failing to encourage respect for the administration of justice and ordered to serve a suspension. While Mr. Rappaport was granted a stay of the suspension pending his appeal to the Appeal Division of the Law Society Tribunal, that appeal has now been dismissed and the original finding has been upheld.
[22] The Law Society Act specifically states that filing an appeal does not stay the decision of the Law Society Tribunal unless this court orders otherwise: Law Society Act, s. 49.41(1). The Law Society argues that there is a public interest in Mr. Rappaport serving his suspension without delay. The Law Society also argues granting a stay will undermine the reputation of the profession and the public’s confidence in the Law Society’s ability to fulfil its regulatory role. Finally, the law society argues the public interest outweighs Mr. Rappaport’s private interest in delaying his suspension.
[23] In my view, the harm Mr. Rappaport will suffer if a stay is not granted is greater than the potential harm to the public confidence in the Law Society’s ability to regulate the profession. There is no evidence of any ongoing concerns about Mr. Rappaport’s competence or professionalism. The allegations all relate to one family law matter in 2018. If Mr. Rappaport is unsuccessful on his appeal, he will serve his suspension, thus satisfying the public interest in ensuring professional misconduct is properly sanctioned by the Law Society. However, if Mr. Rappaport is successful on his appeal, he could not be compensated for serving a suspension that has been overturned. I, therefore, find that the balance of convenience favours granting Mr. Rappaport a stay of the suspension pending the appeal. . Platinum Cars Inc. v. Registrar, Motor Vehicle Dealers Act, 2002
In Platinum Cars Inc. v. Registrar, Motor Vehicle Dealers Act, 2002 (Div Court, 2024) the Divisional Court denied a motion for a stay pending appeal, here where the appellant appealed a LAT order "directing the Respondent Registrar to carry out a Notice of Proposal" to revoke both a car dealer and motor vehicle salesperson MVDA registration:[25] Their application has been updated, and includes a proposal for terms and conditions that would include maintaining a fund at $50,000 to respond to customer complaints, and supervision by a prior motor vehicle official who assists registrants with their obligations. The motion material includes a forebearance agreement from the security holder of the Appellants’ credit facility, which permits the dealership to continue its financial arrangements if a stay is granted.
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Applying the Test for a Stay Pending Appeal
[29] The parties agree that the test on a motion to stay an order under r. 63.02(1)(b) is that in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 at p. 334 as follows:1. Is there a serious issue to be tried?
2. Will the moving party suffer irreparable harm if the stay is not granted?
3. Does the balance of convenience favour granting the stay? [30] The factors are interrelated and the strength of one factor may counterweigh a weaker factor: Louis v. Poitras 2020 ONCA 815 at para. 16.
[31] The overarching question is whether the moving party has demonstrated it is in the “interests of justice” to grant a stay: BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 283 O.A.C. 321, at para. 16. . Power Workers' Union v. Canada (Attorney General)
In Power Workers' Union v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered a preliminary motion for interim and interlocutory injunctions [under Federal Rules R373] in the course of an appeal of an unsuccessful union JR against a "regulatory document issued by the Canadian Nuclear Safety Commission", here on constitutional grounds. The policy in the impugned document, which the injunction would suspend if granted, established policy regarding "pre-placement and random alcohol and drug testing of safety-critical workers employed by the respondent employers at Class I high-security nuclear power plants".
This motion is essentially a stay pending appeal, and as such is heard under the RJR-MacDonald doctrine:[15] The test for obtaining an interlocutory injunction is set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 at 334, 111 D.L.R. (4th) 385 [RJR-MacDonald]. The moving party must establish that: (1) there is a serious issue to be tried; (2) it will suffer irreparable harm if the injunction is not granted; and (3) the balance of convenience, taking into account the public interest, favours granting the injunction.
[16] The moving party has the burden of satisfying each branch of the test, on a balance of probabilities (Canada (Attorney General) v. Robinson, 2021 FCA 39 at para. 17, citing Novopharm Limited v. Janssen-Ortho Inc., 2006 FCA 406). . Sase Aggregate Ltd. v. Langdon,
In Sase Aggregate Ltd. v. Langdon, (Ont CA, 2023) the Court of Appeal considered the RJR stay pending appeal test:(2) Test for Granting a Stay
[9] In RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334, the Supreme Court of Canada outlined a three-part test for obtaining a stay of a judgment pending appeal:(1) a preliminary assessment must be made of the merits of the case to ensure that there is a serious question 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. [10] These factors are not to be considered in isolation of each other. In other words, they are not watertight compartments. The strength of one may compensate for the weakness of another while considered against the backdrop of the overarching consideration: do the interests of justice call for a stay: BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, at para 16; Livent Inc. v. Deloitte & Touche, 2016 ONCA 395, at para. 5; and Thunder Bay (City) v. Canadian National Railway Company, 2018 ONCA 919, at para. 35.
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