Simon's Megalomaniacal Legal Resources

Judicial Review - Stay Pending JR

. Biztech Institute Inc. v. Accreditation Canada

In Biztech Institute Inc. v. Accreditation Canada (Ont Divisional Ct, 2025) the Divisional Court cited the stay test in a JR application, which is the basic RJR MacDonald interlocutory injunction test:

Motion to stay under s. 4 of the Judicial Review Procedure Act

[7] In Halton District School Board v. Ontario (Special Education (English) Tribunal), 2004 CanLII 10316 (ON SCDC), [2004] O.J No. 1149 (Div. Ct.), at para. 25, the court set out the test for a stay under s. 4 of the Judicial Review Procedure Act. The moving party must show:

. that there is a serious issue to be tried;

. that the applicant will suffer irreparable harm if the order is not granted; and

. that the balance of convenience favours granting the order; that is, the potential harm to the applicant if the order is not granted outweighs the potential harm to the respondent and to the public interest should the interim order be granted.

. Parikh v. Walmart Canada Corporation et al. [inutility of stay of dismissal]

In Parikh v. Walmart Canada Corporation et al. (Ont Divisional Ct, 2025) the Ontario Court of Appeal considers interlocutory motions within a labour JR, here where the JR was brought against an OLRB decision that refused "to extend the time for him to appeal an order dated November 30, 2022 made by a Ministry of Labour Inspector under the Occupational Health and Safety Act".

Here the court comments on the inutility of staying a dismissal order:

A Stay of Execution

[10] When lawyers speak of a “stay” of an order, they are using a shortform. The proper phrase is actually a “stay of execution” of the order. The stay prevents the order from being “executed” or “acted upon” or “carried out.” A stay is used to prevent the execution of the order from causing irreversible harm while an appeal or a review of the order is under way. For example, a tenant’s eviction order may be stayed so that the tenant can have the order reviewed without being evicted first.

[11] The orders being reviewed in this case are refusals to extend the time for Mr. Parikh to appeal to the OLRB. No relief was granted. There is no order to be executed or put into place. Staying a refusal to extend time does not extend the time. Mr. Parikh needs to succeed on the judicial review application to have the OLRB’s order reversed. Staying an order refusing to extend time does not do anything.

[12] Mr. Parikh submits that he is being subjected to harassment and embarrassment in the community because his OLRB appeal was dismissed. He submits that a stay would help him respond to critics.

[13] I do not accept that argument. Making an order that has no substantive content and no effect has no bearing on any harassment or embarrassment being suffered by Mr. Parikh.

. Tariq v. Toronto Metropolitan University

In Tariq v. Toronto Metropolitan University (Div Court, 2024) the Divisional Court considered a 'stay pending JR' issue:

[4] ... A stay is not granted to award a party the ultimate relief he seeks in the proceeding, but rather to preserve a reasonable state of affairs until this court may decide the underlying proceeding on the merits. Where, as here, there is no right of appeal, the presumed finality of the impugned decision weighs in the balance of factors to be considered when weighing the totality of circumstances. We see no reason to interfere with the conclusion of Myers J. that there would be no irreparable harm to the moving party from the absence of a stay during the period required to bring this case to a hearing in this court, nor in the conclusion of Myers J. that the balance of convenience weighed in favour of respecting the authority of the University Senate’s autonomy in managing academic affairs within the university. The hearing of the application will be delayed longer than Myers J. had envisaged, but the fault for that delay lies with the moving party, and so the additional delay does not commend itself as a changed circumstance that would lead us to vary the order of Myers J.

. 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.

. Law Society of Ontario v. A.A.

In Law Society of Ontario v. A.A. (Div Court, 2024) the Divisional Court allowed a stay pending JR motion (heard on the RJR test), where the JR was of the Law Society Tribunal (Appeal Division)'s dismissal of an appeal of the Law Society Tribunal's finding that the respondent was of good character:

[5] This is a motion for a stay of the Appeal Division’s decision pending the hearing of the Law Society’s judicial review application. In the alternative, if a stay is not granted and the Law Society is required to license AA before its judicial review application is heard, the Law Society is seeking an order allowing it to disclose AA’s identity to anyone who inquires about his status.

[6] The burden is on the Law Society to establish that it is in the interests of justice to grant a stay of the Appeal Division’s decision. The Law Society must show

a. there is a serious issue to be determined on its judicial review application;

b. irreparable harm will occur if the stay is not granted; and

c. the balance of convenience favours the imposition of a stay.

. Guillaume v. Chief Animal Welfare Inspector

In Guillaume v. Chief Animal Welfare Inspector (Div Court, 2023) the Divisional Court considered a motion to stay [under CJA s.106] administrative decisions from the PAWS Animal Care Review Board (ACRB), pending a JR:

Test for a Stay and Mootness

[4] Because there is no statutory right of appeal of a decision of the ACRB, the automatic stay provision of the Statutory Powers and Procedures Act, R.S.O. 1990, c. S.22 (SPPA) does not apply.

[5] The test for a stay requires that the moving party show that:

(a) the application raises a serious question;

(b) irreparable harm will result if the stay is not granted; and

(c) the balance of convenience favours the granting of a stay.

RJR MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] S.C.J. No. 17 paras. 43, 78-80.

. Sioux Lookout (Municipality) v Clace

In Sioux Lookout (Municipality) v Clace (Div Court, 2023) the Divisional Court considered (and denied) a JR application to permanently stay an HRTO hearing, here for the unusual reason that undue delay in scheduling was caused (in part) by "lack of resources". In these quotes the court considers the test for stay pending JR:

[17] The test for a stay pending judicial review is not disputed:

(i) Is there a serious issue to be tried on the merits;

(ii) Would the applicant suffer irreparable harm if the stay is not granted; and

(iii) Does the balance of convenience favour granting the stay?

. Windrift Adventures Inc. et al. v Chief Animal Welfare Inspector

In Windrift Adventures Inc. et al. v Chief Animal Welfare Inspector (Div Court, 2023) the Divisional Court considered (and granted) a motion for a stay of a 'statement of account' under the PAWS legislation pending a judicial review - here in the course of a multi-proceeding, multi-dog seizure:

The test for granting a stay

[10] To obtain a stay pending appeal, the applicants must satisfy the three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334, that: (1) there is a serious issue to be tried; (2) the applicants will suffer irreparable harm if the stay is not granted; and (3) the balance of convenience favours granting the stay.

[11] It is well-accepted that the factors are not rigid “watertight compartments” or a series of independent hurdles, but are “interrelated in the sense that the overriding question is whether the moving party has shown that it is in the interests of justice to grant a stay.” Strength in meeting one part of the test “may compensate for the weakness of another”: Louis v. Poitras, 2020 ONCA 815 at para. 16.