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Injunctions - RJR - 'Irreparable Harm' (2). SBG-Skill Based Games Inc. v. Ontario (Alcohol and Gaming Commission)
In SBG-Skill Based Games Inc. v. Ontario (Alcohol and Gaming Commission) (Ont CA, 2025) the Ontario Court of Appeal dismissed several appellate interlocutory motions, these seeking "a stay pending appeal of the application judge’s declaratory judgment" and "other injunctive orders against the respondent Registrar, Alcohol and Gaming Commission of Ontario, including a stay of a bulletin the Commission issued on April 23, 2023 (the “Bulletin”), requiring liquor licensees in Ontario to ensure that the appellant’s “GotSkill?” game is not operated in their commercial establishments".
The court considers the 'irreparable harm' element of the RJR stay test, here turning on restrictions of the appellant's ability to sue for financial losses:[20] As the respondent concedes, a loss of revenue resulting from the respondent’s enforcement of the application judge’s decision would constitute irreparable harm. The appellant is foreclosed under provincial law from taking an action against the respondent for any acts in good faith in the exercise of their functions.[6] The appellant will therefore have no means of recovering its lost revenues from the respondent even if it wins the appeal: RJR-MacDonald, at p. 341. . 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 the 'irreparable harm' element of the RJR stay/injunction test:(2) Has the appellant demonstrated irreparable harm if the stay is denied?
[46] Irreparable harm is unavoidable harm that, by its quality, cannot be redressed by monetary compensation (Canada (Attorney General) v. Oshkosh Defense Canada Inc., 2018 FCA 102 at para. 24 [Oshkosh]). To establish irreparable harm, the appellant must demonstrate "“in a detailed and concrete way that it will suffer real, definite, unavoidable harm—not hypothetical and speculative harm—that cannot be repaired later”" (Oshkosh at para. 25). . Carrasco v. College of Massage Therapists of Ontario
In Carrasco v. College of Massage Therapists of Ontario (Ont Div Ct, 2025) the Ontario Divisional Court considered the 'irreparable harm' element of a professional discipline stay pending appeal motion (RJR), including the factor of delay in bringing the motion:B. Will the Appellant suffer Irreparable Harm?
[42] Irreparable harm must be more than loss of income or financial loss. Were this the standard, then every case in which the moving parties suffer a loss of income would meet the test. Indeed, in a professional disciplinary matter where there is a suspension or revocation of licence, economic losses are to be expected. See: Aboujamra, supra, at para. 17 to 18; Kitmitto et al. v. Ontario Securities Commission, 2023 ONSC 1739 at para. 13.
[43] Emotional harm, reputational harm, and psychological attachment to a profession will almost always exist in a professional discipline case, something more must exist, otherwise, irreparable harm as a consequence would always exist and weigh in favour of granting a stay. See: Sazant v. College of Physicians & Surgeons (Ontario), 2011 CarswellOnt 15914 (ONCA) at para. 13; Noriega v. College of Physicians and Surgeons of Ontario, unreported, October 22, 2015 (Div. Ct.) at para. 26; Aboujamra, supra, at paras. 18-20, Kitmitto, supra, at para. 14; Doe v. College of Physicians and Surgeons, 2021 ONSC 7550 at para. 12. These kinds of harm are not irreparable. They are addressed by vindication on appeal. See Doe, supra, para. 12.
[44] Irreparable harm must be harm that is incapable of quantifying, or which cannot be cured because one party cannot collect damages from the other. It is the nature of the harm that is to be considered, not its magnitude. Evidence of irreparable harm must be clear and not speculative, so too the evidence that the moving party will suffer it. Evidence of possible or likely harm is not enough. See: Sazant at para. 11; Noble v. Noble, 2002 CarswellOnt 4445 (ONSC) at para. 16; Kitmitto, supra, at para. 13.
[45] Mr. Carrasco states he has suffered serious harm. He faces bankruptcy, although he is trying to delay that event. He says that he has borrowed money from his family but they say that they can no longer provide him with money. Finally, he has few assets to call upon.
[46] Bankruptcy, alone, does not constitute irreparable harm, unless, for example, it would destroy a commercial business, for example. The possibility of bankruptcy and speculative evidence about how bankruptcy will affect the moving party is not enough. See: Aboujamra, supra, at para. 18.
[47] The threshold for establishing irreparable harm is high. See: Barnwell v. LSO, 2024 ONSC 5826 at para. 16.
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[49] Delay also works against the Appellant’s claim of irreparable harm. Generally, a stay motion must be brought at the earliest opportunity, which is usually between when the decision appealed from is released and when the appeal is commenced. See: Law Society of Ontario v. A.A., 2024 ONSC 2681 at para. 27. In this case, the Appellant brought his motion to stay 3 months after the decision appealed from and 2 months after commencing his appeal. Much of the economic impact he alleges as creating irreparable harm, occurred during this delay period. It is not appropriate to consider as irreparable harm under the stay analysis, harm incurred by the Appellant’s own lack of diligence.
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