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Injunctions - RJR - 'Irreparable Harm'. 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.
Here the court considers the 'irreparable harm' element of the RJR test:[37] Moving to the question of irreparable harm, the Appellants allege significant financial harm if the stay is not granted. As the Divisional Court wrote in Yazdanfar v. College of Physicians and Surgeons of Ontario, 2012 ONSC 2422 (CanLII) at para 64. “evidence of irreparable harm must be clear, not speculative, and supported by evidence.” The Appellants are required to show a risk that is real, that there will be disastrous consequences beyond financial loss or inconvenience: Yazdanfar at para. 32. . Carvalho Estate v. Verma
In Carvalho Estate v. Verma (Ont CA, 2024) the Ontario Court of Appeal dismissed a novel 'stay pending appeal' motion where the main object of concern was a dog, Rocco. At the lower application stage the dog was held to be the property of the estate, and thus the dog was ordered returned to the estate trustee.
Here the court considers the element of 'irreparable harm', part of the standard 'stay pending appeal' test in RJR-MacDonald (SCC, 1994):[18] Further, irreparable harm in the context of a stay motion is harm that flows from the denial of a stay: Belton v. Spencer, 2020 ONCA 623, 58 C.P.C. (8th) 16, at para. 51. The evidence, including that of her health care providers, suggests that Ms. Verma’s anxiety is instead significantly related to the underlying litigation. In any event, Ms. Verma has known since the litigation began that she is in possession of the dog without the consent of Mr. Carvalho’s legal representatives. She has also known since the order under appeal was made, that absent a stay she would be required to part with the dog by March 15. She has had time to put in place other measures to address her anxiety. . Quebec Inc. v. Canada (Privacy Commissioner)
In Quebec Inc. v. Canada (Privacy Commissioner) (Fed CA, 2024) the Federal Court of Appeal considered inadequate evidence advanced on the 'irreparable harm' element of the RJR-MacDonald test, here on the issue of 'public exposure' emanating from the "findings and recommendations" of a PIPEDA report:[4] Applying the classic test for injunctive relief in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, the Federal Court found that the appellants had failed to establish irreparable harm with the evidence they adduced. The evidence was general, broad, unparticularized, unspecific, and relatively sparse—in short, insufficient and inadequate and, thus, well short of the mark. The Federal Court added that the appellants “did not offer any evidence to establish that such public exposure [as a result of the disclosure of the Commissioner’s final report would have] ... an impact on their business in a manner that would take it outside the normal impact of the Commissioner’s proceedings” (at para. 48). In other words, there was evidence of harm but the evidence was of such generality and non-specificity that it was not possible to infer or conclude that the harm would be irreparable.
[5] From that, the Federal Court concluded that the appellants failed to establish harm of sufficient quality or weight to show that the balance of convenience was in their favour. The Federal Court added that the pursuit of the Commissioner’s mandate was very much in the public interest and that weighed heavily against the appellants in any assessment of the balance of convenience.
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[12] We add that even if the standard of review on evidentiary findings were more favourable to the appellants and we could reweigh and reassess the evidence, in our view, substantially for the reasons given by the Federal Court, the evidence was indeed deficient, insufficient, and inadequate to establish irreparable harm. From evidence of this quality, it was not possible for the Federal Court nor would it be possible for us to infer that the harm would be irreparable. To attempt to do so would put the courts in the realm of speculation, assumption or guesswork about the quality of the harm the appellants would suffer and, thus, whether it is irreparable. Whether the Commissioner could redact portions of any report to eliminate irreparable harm pending legal challenge could affect the assessment of irreparable harm. As well, further affecting that assessment is the fact that some of the information the appellants seek to keep confidential is already public in media reports. The overall result is evidentiary uncertainty. . 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, and these quotes [primarily at paras 20-25] address the 'irreparable harm' element of that test:[20] However, I find that it has not established that it will suffer irreparable harm if the stay is not granted. Thus, the second criterion for the issuance of the requested stay is not met.
[21] Irreparable harm refers to the nature, as opposed to the extent, of the harm that a party will suffer if a stay is not granted. There must be “a real probability that unavoidable irreparable harm will result unless a stay is granted”: see Arctic Cat, Inc. v. Bombardier Recreational Products Inc., 2020 FCA 116, 176 C.P.R. (4th) 323 at para. 20, citing Glooscap Heritage Society v. Canada (National Revenue), 2012 FCA 255, [2012] F.C.J. No. 1661 (QL) at para. 31 (Glooscap); see also Dywidag Systems International, Canada, Ltd. v. Garford Pty Ltd., 2010 FCA 232, 406 N.R. 304 at para. 14 (Dywidag); Canada (Attorney General) v. Canada (Information Commissioner), 2001 FCA 25, 268 N.R. 328, leave to appeal to SCC refused, 28584 (13 September 2001) at para. 12 (Canada (Information Commissioner)); Laperrière v. D. & A. MacLeod Company Ltd., 2010 FCA 84, 402 N.R. 341 at para. 17 (Laperrière); Janssen Inc. v. AbbVie Corporation, 2014 FCA 176, 242 A.C.W.S. (3d) 11 at para. 46.
[22] Irreparable harm is harm that either cannot be quantified in monetary terms or that cannot be compensated: RJR-MacDonald at 341. Irreparable harm is also harm that is unavoidable: Janssen Inc. v. AbbVie Corporation, 2014 FCA 112, 2014 CarswellNat 1434 at para. 24 (Janssen). As this Court explained at paragraph 24 of Janssen, “it would be strange if a litigant complaining of harm it caused itself, harm it could have avoided or repaired, or harm it can still avoid or repair could get such serious relief [as a stay would afford]”.
[23] In RJR-MacDonald, the Supreme Court of Canada gave examples of the types of harm that may be irreparable because it cannot be quantified. These include instances where the party seeking the stay will be put out of business or will suffer permanent market loss or irreversible damage to its business reputation: see RJR-MacDonald at 341, citing R.L. Crain Inc. v. Hendry, (1988) 1988 CanLII 5042 (SK KB), 48 D.L.R. (4th) 228 (Sask. Q.B.); American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (UKHL).
[24] This Court has held that the probability of such irreparable harm occurring must be established by the party seeking the stay through “… evidence at a convincing level of particularity …. Assumptions, speculations, hypotheticals and arguable assertions, unsupported by evidence, carry no weight”: Glooscap at para. 31, citing to Dywidag at para. 14; Stoney First Nation v. Shotclose, 2011 FCA 232, 2011 CarswellNat 3639 at para. 48 (Shotclose); Canada (Information Commissioner) at para. 12; Laperrière at para. 17; see also, to similar effect, Gateway City Church v. Canada (National Revenue), 2013 FCA 126, 2013 CarswellNat 1314 at paras. 14-16 (Gateway City Church).
[25] As my colleague Stratas J.A. aptly put it in Gateway City Church, “[g]eneral assertions cannot establish irreparable harm. They essentially prove nothing” (see para. 15). This is because, as Stratas J.A. found in Shotclose at paragraph 48:It is all too easy for those seeking a stay in a case like this to enumerate problems, call them serious, and then, when describing the harm that might result, to use broad, expressive terms that essentially just assert – not demonstrate to the Court’s satisfaction – that the harm is irreparable. [26] Bell notes that the Court has recognized irreparable harm in the context of orders that it has granted to stay certain CRTC decisions pending an appeal. More specifically, in Aboriginal Voices Radio Inc. v. Canada (Attorney General), 2015 FCA 172, 2015 CarswellNat 12195, this Court stayed a CRTC decision when the decision mandated the closure of a radio station. Further, in North American Gateway Inc. v. Canadian Radio-Television & Telecommunications Commission, [1997] F.C.J. No. 628, 1997 CarswellNat 1268, this Court stayed a CRTC decision when the evidence established that the effect of the CRTC decision was to put those seeking the stay “out of business within days” at para. 13. Finally, in CKLN Radio Incorporated v. Canada (Attorney General), 2011 FCA 56, 2011 CarswellNat 316, this Court stayed a CRTC decision that would have resulted in the loss of a sought-after radio frequency in a hotly contested market, with the consequence that a campus radio station was likely to be imperilled.
[27] As will soon become apparent, the foregoing cases are very different from the present one.
[28] Bell also points to two unreported speaking orders, issued in 2019 by this Court in 19-A-59. However, due to their brevity, neither order provides any indication of the relevant circumstances that led to its issuance beyond the notation that the Court was satisfied that the stay orders were required to prevent market distortion: see Bell’s Motion Record, Tab 4, Exhibits H and I of the Sonia Atwell Affidavit. On the other hand, in the present case, the CRTC made the Decision with a view to correcting such distortion and preserving competition in the high speed internet market in Ontario and Quebec.
[29] In the present case, Bell puts forward only general assertions of the harm that it says it will suffer if the stay is not granted, as opposed to evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted.
[30] Bell says that it will suffer three types of harm that it submits are irreparable if it complies with the Decision, including: (1) it will lose customers and revenue; (2) it will incur unrecoverable implementation costs; and (3) it will have to delay or cancel other projects. However, Bell has failed to substantiate that these harms are irreparable with the necessary degree of convincing particularity.
[31] In support of its allegations of irreparable harm, Bell relies on an affidavit from its Senior Vice President of Technology Services, Ms. Anuja Sheth (Sheth affidavit), that is speculative and lacks supporting evidence for the harm that Bell alleges it will suffer if a stay is refused. Bell also relies on an affidavit from a law clerk that attaches, among other things, certain filings made in the present case before the CRTC, as well as a decision and other filings made in the case before the Competition Tribunal involving the Rogers-Shaw merger, namely Canada (Commissioner of Competition) v. Rogers Communications Inc. and Shaw Communications Inc., 2023 Comp Trib 1, aff’d 2023 FCA 16, 477 D.L.R. (4th) 553 (Rogers Shaw Merger).
[32] Most of the harms alleged in the Sheth affidavit are premised on the assumption that the CRTC will not permanently order similar access to Bell’s FTTP facilities over aggregated wholesale HSA at the end of its broad policy review. At this point, this is pure speculation.
[33] Dealing more specifically with each of the alleged harms, Bell provides no evidence, documentary or otherwise, detailing how or why it is likely to permanently lose customers or revenue. Although the Sheth affidavit refers in passing to estimated and hypothetical losses, the affiant provides little, if any, basis to support the amounts or effects alleged.
[34] Bell’s estimates also lack necessary nuance. For example, as TekSavvy points out, Bell’s figures fail to distinguish between different types of customers. There is no distinction between customers who may migrate from a wholesale-based competitor using Bell’s dedicated-subscriber line services to a wholesale-based competitor using Bell’s FTTP services; customers who may migrate to a wholesale-based competitor that also uses Bell’s FTTP service; or non-customers who might still subscribe to a wholesale-based competitor that accesses Bell’s FTTP services. In all of these examples, Bell would still gain wholesale revenue in relation to these customers, yet the generalizations in the Sheth affidavit would not account for them.
[35] In my view, the evidence on alleged market loss tendered by Bell in the Sheth affidavit is comparable to the evidence in Gateway City Church. It is not “evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted”: Gateway City Church at para. 16. It includes several assumptions, speculations, and hypotheticals that are unsupported by evidence and “carry no weight”: see Glooscap at para. 31.
[36] Bell also premises its arguments relating to loss of market share and revenue on certain filings made in this case before the CRTC by TekSavvy and CNOC, the Decision, and on the Competition Tribunal’s decision in Rogers Shaw Merger and related filings. Yet, none of the foregoing establishes a real probability that Bell will irreparably lose market share or revenues. While the CRTC intends, via the Decision, to increase competition in the sector, and TekSavvy and CNOC indicated in their submissions to the CRTC that they believed that the temporary access the CRTC contemplated was required, this does not establish a real probability that Bell will permanently lose market share or revenues. As the respondents convincingly point out in their responding materials, the fact that competition might increase does not necessarily translate into a loss of market share for Bell. Further, Bell has offered no details that substantiate how the interim wholesale rates the CRTC has mandated compare to the discounted prices Bell is already offering certain customers.
[37] As for the Competition Tribunal’s decision in Rogers Shaw Merger and related filings, namely the Responding Witness Statement from Mr. Jean-François Lescadres, I fail to see how they prove much, if anything, of relevance when that case dealt with at least somewhat different services, markets, and issues. While the Competition Tribunal did recognize that Videotron’s acquisition of VMedia, a reseller, was indicative of Videotron’s plans to expand into Ontario, Bell has not offered any evidence linking such an expansion to any permanent loss of its market share or revenues.
[38] Turning to the alleged unrecoverable implementation costs, the CTRC’s assurance that it can address these concerns, if necessary, is a complete answer to this argument, given that Bell has provided no evidence that shows how or why the CRTC cannot do so. The Sheth affidavit does not convincingly establish that the CRTC could not mandate new rates that would allow Bell to recapture costs expended to institute temporary access in the event the CRTC were to decide not to permanently order similar access to Bell’s FTTP facilities over aggregated wholesale HSA at the end of its broad policy review.
[39] Finally, Bell’s own choices to redirect or cut its investment dollars do not constitute irreparable harm, but rather a business choice that it appears that it has chosen to make in light of the Decision. In the absence of evidence showing how implementing the temporary mandated access would imperil Bell’s continued existence, I fail to see how making the investments required to implement the Decision instead of others could constitute irreparable harm.
[40] For all of these reasons, Bell has not demonstrated, to the Court’s satisfaction, “the actual existence or real probability of harm that can not be repaired later”: Shotclose at para. 48. Its assertions lack the necessary particularity to succeed on part two of the RJR-MacDonald test. . Sheldon M. Chumir Foundation for Ethics in Leadership v. Canada (National Revenue)
In Sheldon M. Chumir Foundation for Ethics in Leadership v. Canada (National Revenue) (Fed CA, 2023) the Federal Court of Appeal considered the 'irreparable harm' element of the RJR-MacDonald stay/interlocutory injunction test:[7] In Ahlul-Bayt Centre, Ottawa, this Court stated that “irreparable harm cannot be inferred, but must be established by clear and compelling evidence…General assertions cannot establish irreparable harm. Nor can ‘[a]ssumptions, speculations, hypotheticals and arguable assertions, unsupported by evidence’; they carry no weight. Instead, ‘there must be evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless [a stay of the notice’s publication] is granted’” (Ahlul-Bayt Centre, Ottawa at para. 15; Gateway City Church v. Canada (National Revenue), 2013 FCA 126 at paras. 14-16; Cheder Chabad v. Canada (National Revenue), 2013 FCA 196 at para. 26; Glooscap Heritage Society v. Canada (National Revenue), 2012 FCA 255 at para. 31).
[8] Despite counsel’s able submissions, the Foundation has failed to persuade us, on a balance of probabilities, that it will suffer irreparable harm. In our view, the evidence put forward by the Foundation is insufficient to establish that it will suffer irreparable harm if the Minister proceeds with the publication of the notice of intent to revoke. The evidence consists of general and speculative assertions that the Foundation’s relationships with third parties will not survive the revocation of its charitable registration, and that this loss will in turn lead to a drop in donations and the end of its programming. Similar general and speculative assertions have previously been rejected by this Court (Ahlul-Bayt Centre, Ottawa at paras. 18-19; Universal Aide Society at paras. 17-18; Fortius Foundation v. Canada (National Revenue), 2022 FCA 176 at paras. 29, 31-33, leave to appeal refused, 40515 (May 11, 2023); Gateway City Church at paras. 13-14, 17; Glooscap Heritage Society at paras. 27, 31, 35-38; Holy Alpha and Omega Church of Toronto v. Canada (Attorney General), 2009 FCA 265 at paras. 18-23). . 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 (a similar lower court stay was already issued in the JR proceeding), and as such is heard under the RJR-MacDonald doctrine:B. Irreparable Harm
[24] Under the second branch of the test, the appellants must show that they would suffer irreparable harm if the stay were not granted. “Irreparable” harm refers to the nature of the harm, not the magnitude. It is harm which “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 harm cannot be “hypothetical and speculative” (Janssen Inc. v. Abbvie Corporation, 2014 FCA 112 at para. 24).
[25] The Stay Judge, on reviewing the same record that is before this Court, concluded that the appellants had established irreparable harm in respect of both impugned provisions of the RegDoc. The Stay Judge found that the appellants had not merely asserted a breach of section 8 of the Charter. The Stay Judge concluded based on “undisputed evidence”, that “the highly intrusive and non-consensual collection of bodily fluids is clear and concrete evidence of harm in light of the privacy interests engaged” (Stay Decision at paras. 86 and 106).
[26] On this motion, the appellants argue, echoing the reasons given by the Stay Judge, that the evidence of harm is neither hypothetical nor speculative, the privacy interests of the workers in their bodily fluids are at the “high end of the spectrum”, and these intrusions on privacy cannot be remedied after the fact.
[27] The respondents submit that the harms alleged by the appellants are hypothetical and speculative. They say that taking of bodily samples pursuant to the RegDoc is minimally invasive and the harm, if any, is mitigated by the workers’ diminished expectation of privacy working in the nuclear power industry and the privacy protections contained in the RegDoc.
[28] The respondent employers add, relying on the decision in Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2017 ONSC 2078 at para. 67 [TTC], citing Jones v. Tsige, 2012 ONCA 32 [Jones], that the breaches of privacy can be remedied through awards of damages.
[29] This Court has held that allegations of a Charter infringement, without more, do not establish irreparable harm (Groupe Archambault Inc. v. Cmrra/Sodrac Inc., 2005 FCA 330 at para. 16; International Longshore and Warehouse Union Canada v. Canada (Attorney General), 2008 FCA 3 at paras. 26 and 33). Here, there is more.
[30] The non-consensual seizure of bodily fluids has been held to be highly intrusive, invading personal privacy essential to the dignity of the person (Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 at para. 50 [Irving Pulp & Paper], citing R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, 55 D.L.R. (4th) 503 [Dyment]). This arises from the loss of control over personal information contained in the samples, and the use of the person’s body in the process by which that personal information is obtained (Dyment at para. 34). Here, the bodily samples are breath, saliva and urine.
[31] Compared to privacy interests in, for example, business documents, the privacy interests in bodily samples is “at the high end”. Accordingly, this type of seizure is subject to stringent standards and safeguards to meet constitutional requirements (Irving Pulp & Paper at para. 50, citing R. v. Shoker, 2006 SCC 44).
[32] The harm identified by the appellants has yet to occur, but it is neither hypothetical nor speculative. Once implemented, the impugned provisions of the RegDoc will result in mandatory pre-placement testing and random testing of safety-critical employees. Avoiding future harm is an essential feature of an interlocutory injunction (Horii v. Canada, 1991 CanLII 13607 (FCA), [1992] 1 F.C. 142 at 147, 7 Admin L.R. (2d) 1 (C.A.)).
[33] I accept the respondents’ submissions that the RegDoc includes features to protect the privacy interests of the safety-critical employees. I also accept that working in the highly regulated nuclear power industry reduces expectations of privacy.
[34] I would not go so far as to conclude that these mitigating factors cause any harm arising from the implementation of the impugned provisions to be “minimal” or that, as a result, the second branch of the test is not passed. Nor will I engage in an assessment of the severity or the reasonableness of the privacy intrusion by virtue of these potentially mitigating circumstances. That is not necessary or appropriate. It is a matter for this Court to consider on a full hearing of the appeal. The appellants have established that harm will ensue if the proposed injunction is not granted.
[35] The employer respondents say that any harm from the pre-placement and random testing can be remedied. They rely on TTC, where the Court concluded, in the context of an injunction application relating to random drug and alcohol testing, that damages for wrongfully obtained bodily fluids could be compensated. The Court relied on the damages analysis in Jones where the subject matter of the privacy invasion was an individual’s banking records.
[36] I am not persuaded by these authorities. TTC appears to stand alone in extending the analysis in Jones to conclude that the wrongful seizure of bodily samples is compensable. Also, as addressed by the Stay Judge, the workplace circumstances in TTC differed significantly from those at hand (Stay Decision at paras. 98-103).
[37] Other courts have concluded that invasions of privacy are not remediable with post-intrusion compensation (143471 Canada Inc. v. Quebec (Attorney General); Tabah v. Quebec (Attorney General), 1994 CanLII 89 (SCC), [1994] 2 S.C.R. 339 at 382, 167 N.R. 321). This includes decisions confirming irreparable harm from the taking of bodily fluids, on the basis that the harm cannot be undone or fully remedied through monetary compensation (Communications, Energy and Paperworkers Union, Local 707 v. Suncor Energy Inc., 2012 ABQB 627 at para. 38, aff’d 2012 ABCA 373; Stay Decision at para. 104; Fieldhouse v. Canada, 1994 CarswellBC 2219 at para. 71, [1994] B.C.J. No. 740 (B.C. S.C.)).
[38] I am satisfied that the appellants would suffer irreparable harm if the injunction were not granted. The breach of privacy rights engaged in submitting bodily fluids under the impugned provisions would result in harm that could not be undone or fully remedied with a retroactive award of damages. The appellants have met the second branch of the test. . Wilson v. Meeches
In Wilson v. Meeches (Fed CA, 2023) the Federal Court of Appeal considered the RJR stay test, here the element of irreparable harm:[4] To establish irreparable harm, there must be evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted: Glooscap Heritage Society v. Canada (National Revenue), 2012 FCA 255 at para. 31. . Sase Aggregate Ltd. v. Langdon,
In Sase Aggregate Ltd. v. Langdon, (Ont CA, 2023) the Court of Appeal considered the 'irreparable harm' element of the RJR stay pending appeal test:(b) Irreparable Harm
[22] The second factor to consider is whether or not the moving party will suffer irreparable harm if the stay is not granted. Irreparable harm is harm that would result to the moving party if the order in question were not stayed pending the application for leave to appeal. It may arise if refusing to grant a stay would render the leave application and appeal moot: Donovan v. Sherman Estate, 2019 ONCA 465, at paras. 19-20; Ting (Re), 2019 ONCA 768, at para. 29; and Ducharme v. Hudson, 2021 ONCA 151, at para. 20.
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