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Judicial Review - Leave to Judicial Review. Sayers Foods Ltd. v. Gay Company Limited
In Sayers Foods Ltd. v. Gay Company Limited (Div Court, 2024) the Divisional Court grants a consent stay action against Construction Act (CA) adjudicator's decision, here in the course of a CA 'prompt payment' JR.
Here the court favourably considers the applicant's (novel?) argument that a portion of the RJR stay test was satisfied by the prior 'leave to JR' test:[4] The Applicant takes the position that it satisfies a test for a stay. It argues that (a) when it obtained leave to commence this application, it satisfied the low threshold on the merits for obtaining a stay pending the hearing; (b) it will suffer irreparable harm if required to pay the determination, in that it may have no way in which to recover the funds if it prevails in the adjudication; and (c) the balance of convenience favours granting a stay in that (i) the hearing has been expedited and is scheduled for early November, (ii) it has a meritorious claim for delay against the Responding Party that exceeds the value of any amount it may owe the Responding Party; and (iii) the Responding Party’s claims are already fully secured by way of lien claims registered against title to the Moving Party’s property.
[5] In light of the circumstances of this case, it is not necessary to review and expound upon the principles involved in considering a stay request in the context of applications for judicial review of prompt payment adjudications under the Construction Act. Accepting, as I do, that there are arguable grounds for the application on the merits (which will usually be the case, given the stringent test for leave), I am not satisfied that the Moving Party has established irreparable harm (if the money is paid into court, as agreed by the Responding Party), and the balance of convenience weighs strongly in favour of requiring payment into court of the full amount in issue. . Anatolia Tile & Stone Inc. v. Flow-Rite Inc.
In Anatolia Tile & Stone Inc. v. Flow-Rite Inc. (Div Court, 2023) the Divisional Court, in distinquishing the separate 'leave for judicial review' regime of the Construction Act, refers to another more generic 'leave to JR' regime addressed in the Raincoast Conservation Foundation v. Canada (Attorney General) [2019 FCA 224, paras 9-16] case under the National Energy Board Act [*** you should review these cited Raincoast paragraphs for the material points]:[5] Given this context, the “fairly arguable case” test for leave to bring an application for judicial review, stated by Stratas J.A. in Raincoast Conservation Foundation v. Canada (Attorney General), 2019 FCA 224, does not apply to motions for leave to bring an application for judicial review of an adjudicator’s decision under the prompt payment provisions of the Construction Act.
[6] The impugned decision in Raincoast Conservation had final effect in respect to issues of great importance to the parties. By contrast, the effect of an adjudicator’s decision under the prompt payment provisions of the Construction Act is interim, not final. It is intended to be fast and to secure prompt payment in accordance with its terms. The parties can revisit the substantive issues in other litigation or adjudication proceedings. Given this context, we find that the test for leave, applied to the factors enumerated in s.13.18(5) of the Act, is analogous to the conjunctive test for leave to appeal an interlocutory order of a judge, and specifically:Either:
(1) There is good reason to doubt that the impugned decision is reasonable; or
(2) There is good reason to believe that the process followed by the adjudicator was unfair in a manner that probably affected the outcome below;
And either:
(3) That the impact of the unreasonableness or the procedural unfairness probably cannot be remedied in other litigation or arbitration between the parties; or
(4) The proposed application raises issues of principle important to the prompt payment and arbitration provisions of the Construction Act that transcend the interest of the parties in the immediate case, such that the issues ought to be settled by the Divisional Court.
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