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Injunctions - RJR - 'Irreparable Harm' (2). Canada (National Revenue) v. Shopify Inc. [RJR/prohibitive injunction]
In Canada (National Revenue) v. Shopify Inc. (Fed CA, 2025) the Federal Court of Appeal granted (with variations) an MNR motion, here seeking "an order for preservation of information" (an "interim preservation order" under R373 ['Interim and Interlocutory Injunctions'] and 377 ['Preservation of Property']) pending appeal of a similar issue.
The court applies the irreparable harm element of the RJR-MacDonald interlocutory injunction test, here weighing the public interest:B. Public Interest Suffers Irreparable Harm
[18] The threshold for establishing irreparable harm is a high one. As a rule, the person who seeks the order—here, the Minister—must adduce evidence to prevail: Bertrand at para. 10; Fournier Pharma Inc. v. Apotex Inc., (1999), 1999 CanLII 7961 (FC) at para. 6. That said, courts can sometimes presume or infer irreparable harm: RJR-MacDonald at p. 342; Bertrand at para. 10; Canada (Attorney General) v. Simon, 2012 FCA 312 at para. 37.
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[20] On the other hand, unexplained delay in seeking interlocutory relief—here, a preservation order—may serve as evidence that the party seeking the relief does not think that there exists irreparable harm: Robert J. Sharpe, Injunctions and Specific Performance (Toronto: Canada Law Book, 1992) (loose-leaf updated 2025, release 1), ch. 1 at § 1:28 (WL Can); Canada (Attorney General) v. Oshkosh Defense Canada Inc., 2018 FCA 102 at para. 23; Turbo Resources Ltd. v. Petro Canada Inc. (C.A.), 1989 CanLII 9512 (FCA), [1989] 2 FC 451 (FCA) at p. 478.
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[22] The Minister’s actions make it difficult to rule in his favour on the issue of irreparable harm. However, RJR-MacDonald tells us that irreparable harm to the public interest should be considered: RJR-MacDonald at p. 349; Canadian Federation of Students v. Greater Vancouver Transportation Authority, 2007 BCCA 221 at paras. 10–14. It also tells us that the Minister’s conduct does not negate the harm to the public interest—in this case, the harm that would ensue if the data were deleted: RJR-MacDonald at pp.346 and 348. Simply stated, even though the Minister is the guardian of public interest (Canadian Federation of Students at para. 14), that interest should not be assessed based on the Minister’s conduct.
[23] What is the public interest? Public interest encompasses the interests of society as a whole: RJR-MacDonald at p. 343. In the case at hand, Canadian society has a legitimate interest in the Minister’s exercise of his statutory mandate to verify compliance with tax legislation: Fortius Foundation v. Canada (National Revenue), 2022 FCA 176 at para. 39. How is that interest harmed? That interest suffers irreparable harm when information that could be relevant to verify compliance with tax legislation is deleted. On that basis, I find that the Minister, as guardian of the public interest, will suffer irreparable harm if the second preservation order is not granted. . Brandt Tractor Ltd. v. Morasse et al.
In Brandt Tractor Ltd. v. Morasse et al. (Ont Div Ct, 2025) the Ontario Divisional Court dismisses a motion for a stay of a tribunal order pending judicial review, here applying the standard RJR test.
Here the court considers the irreparable harm element of the RJR test:Irreparable Harm
[8] 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: Ahmed v. Abdelmoaein, 2025 ONCA 618, para. 34. While absolute certainty is not required to establish irreparable harm, the evidence must be clear, go far beyond speculation, and satisfy the balance of probabilities: Muslim Association of Canada v. Attorney General of Canada, 2022 ONSC 7284, at para. 17.
[9] The fact that one party may be impecunious does not automatically lead to the conclusion that a stay should be granted, although it may be a relevant consideration: RJR-MacDonald, at p. 341.
[10] A judgment creditor is entitled to the "fruit" of its litigation and the onus is on the appellant judgment debtor to show that on a balance of probabilities that it will suffer irreparable harm if it pays the judgment: Fiske v. Nova Scotia (Attorney General), 2001 NSCA 159, para. 16, quoting Pentagon Investments Ltd. v. Canadian Surety Company, 1992 NSCA 54, 112 N.S.R. (2d) 86, at para. 11.
[11] A judgment creditor does not have to prove their financial stability as a condition of collecting on its judgment: Anwar Construction Ltd. v. J.R. Phillips Electrics Ltd. (1991), 1991 CanLII 2438 (NS CA), 108 N.S.R. (2d) 324 (C.A.), at para. 9. However, if a judgment debtor has led sufficient evidence to raise reasonable concerns about the judgment creditor’s financial ability to repay the judgment, then a court may consider where the judgment creditor has adduced any evidence to allay those concerns: see lululemon athletica canada inc. v. Industrial Color Productions Inc., 2021 BCCA 108 at para. 43.
[12] Brandt relies on Livent Inc. (Receiver of) v. Deloitte & Touche, 2016 ONCA 395, 131 O.R. (3d) 784, for the principle that a stay of the enforcement of a monetary award can be granted even when the evidence of irreparable harm is weak. In that case, a stay was granted in respect of a judgment of about $118 million. Strathy C.J.O. found at para. 11 that payment of this judgment “…. would be sufficiently disruptive of the appellants' business to amount to irreparable harm. While it is weak, it is sufficient to require an assessment of the balance of convenience.” The sums at issue in this case are orders of magnitude smaller than the amount in Livent. There is no suggestion that Brandt’s business would be disrupted by the payment of $34,508.98 to Ms. Morassse.
[13] Brandt submits that there is a real risk that Ms. Morasse is not in a sufficiently financially secure position to repay the monetary award if Brandt’s judicial review application is successful. This view is based on two things:(a) Speculation that Ms. Morasse is not working given that her profile on her LinkedIn page shows that Nortrax was her last employer.
(b) Ms. Morasse’s Notices of Assessment from the Canada Revenue Agency show that her gross income was $56,185 in 2019, $26,042 in 2020, and $49,037 in 2021 and that her net income was $53,358 in 2018, $23,062 in 2020 and $39,281 in 2021. The ability to repay the judgment is best measured using evidence of the judgment creditor’s current financial means including her current income and current net worth. There is no evidence of the respondent’s current net income and her current net worth. The fact that the respondent’s employment history on LinkedIn is dated does not mean that she does not currently earn income. Further, the respondent’s income from four or more years ago is not proof of her current income. The very weak evidence adduced by Brandt does not trigger any requirement for the court to consider whether respondent has adduced any evidence to demonstrate that she has the financial ability to repay the judgment. I find that there is no clear evidence, that goes beyond speculation, that Ms. Morasse will be unable to repay Brandt if their application for judicial review is successful. . Park v. Manulife Bank of Canada
In Park v. Manulife Bank of Canada (Ont CA, 2025) the Ontario Court of Appeal considered the 'irreparable harm' element of the stay test, here in a mortgage eviction context:[2] On November 25, 2024, a Sherriff’s eviction occurred. ...
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[9] In terms of serious harm, it has been held that where a mortgagor acknowledges breaching the contract, the contractual consequences of doing so do not constitute irreparable harm: Starkman v. Home Trust Company, 2015 ONCA 436, at paras. 17-18. In this case Ms. Park denies breaching the contract, but she was found to have done so when default judgment was awarded. I realize that Ms. Park is not accepting that the action that has been struck is an impermissible collateral attack on that default judgment, but the weakness of her appeal arguably supports a conclusion that the eviction is the contractual consequence of her breach and should not be characterized as irreparable harm. Even assuming her eviction qualifies as such, this is only one factor in determining whether a stay should be ordered. . MCC Mortgage Holdings Inc. v. Rutaihwa [mortgage re-possession as irreparable harm]
In MCC Mortgage Holdings Inc. v. Rutaihwa (Ont CA, 2025) the Ontario Court of Appeal considered the 'irreparable harm' element of the RJR stay test, here in a mortgage re-possession context:[11] The respondent does not dispute that the appellants will suffer if they lose possession of their home. However, as this court noted in Starkman v. Home Trust Company, 2015 ONCA 436, at paras. 17-18, the loss of one’s home for failure to pay the mortgage does not always constitute irreparable harm.
[12] In this case, as in Starkman, the moving parties agreed that if they defaulted on their obligations to pay the mortgage, MCC could take possession of the property.
[13] Furthermore, the moving parties bear the burden on the stay motion to adduce evidence of irreparable harm which must establish there is a high degree of probability that permanent and non-compensable harm will occur: Morguard Residential v. Mandel, 2017 ONCA 177, at paras. 22-24; Temagami (Municipality) v. Temagami Barge Limited, 2024 ONCA 859, at para. 9. While the parties advance some medical documentation to demonstrate irreparable harm, this evidence is largely unclear or relates to individuals other than the moving parties. The irreparable harm analysis usually centres on the moving party: see e.g., Ducharme v. Hudson, 2021 ONCA 151, 155 O.R. (3d) 281, at para. 20. Absent irreparable harm in this case, I turn to a preliminary discussion of the merits of the proposed appeal. . 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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