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Federal Court - Appeals - Stay Pending Appeal. Canada (Attorney General) v. Ferris
In Canada (Attorney General) v. Ferris (Fed CA, 2025) the Federal Court of Appeal granted a Crown motion for a stay (of proceeding) pending appeal [motion brought under "50(1)(b) of the Federal Courts Act" ('Stay of proceedings authorized')], here in a Crown appeal from a successful class proceeding certification.
Here the court walks through the RJR stay test:[5] The parties have an important disagreement as regards the legal test for granting a stay pursuant to paragraph 50(1)(b) of the Federal Courts Act. The Crown argues that it is simply the interest of justice. However, as Ms. Ferris points out, and as the Crown’s own cited authorities indicate, the test for granting a stay of proceedings in another Court (which is the case here) is more demanding than would be the case for proceedings before this Court: see Viterra Inc. v. Grain Workers’ Union (International Longshoreman’s Warehousemen’s Union, Local 333), 2021 FCA 41 at para. 23; Mylan Pharmaceuticals ULC v. AstraZeneca Canada, Inc., 2011 FCA 312 at para. 5. In a case such as this, the Crown must meet the tripartite test set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117, [1994] 1 S.C.R. 311 (RJR-MacDonald). This requires the Crown to establish that (i) there is a serious issue to be tried, (ii) it would suffer irreparable harm if the stay were not granted, and (iii) the balance of convenience favours the Crown.
[6] The parties agree that the test in RJR-MacDonald applies to the Crown’s alternative request for a stay pursuant to Rule 398. Accordingly, the legal test is the same under both provisions.
[7] The Crown argues that it meets all three elements of the test in RJR-MacDonald. Ms. Ferris argues that the Crown meets none of the elements.
[8] With regard to serious issue, the threshold is low. It is sufficient for the Crown to satisfy me that its appeal is neither frivolous nor vexatious: RJR-MacDonald at 337. As acknowledged by Ms. Ferris, the Crown’s appeal raises five alleged errors in the FC Order. In order for the Crown to establish a serious issue, it is sufficient that I be convinced that at least one of these alleged errors is neither frivolous nor vexatious. Though Ms. Ferris addresses all of the alleged errors and explains her view that each fails to raise a serious issue, I am not convinced that this is so for all of them. It is not necessary for me to say more than that on this point. In my view, the Crown meets the requirement of raising a serious issue.
[9] I turn now to the requirement that the Crown will suffer irreparable harm if the stay is not granted. Irreparable refers to the nature of the harm suffered rather than its magnitude; it is harm which either cannot be quantified in monetary terms or which cannot be cured: RJR-MacDonald at 341. On this aspect of the test, the Crown refers to the breadth and depth of the certified action, the significant resources that will be required to respond to it, and the real and substantial possibility that any such resources may be wasted or have to be re-applied in the event that the appeal is successful.
[10] Ms. Ferris argues that the Crown’s obligation to devote resources to the certified action does not amount to irreparable harm, but she does not acknowledge the potential for wasted or re-applied resources if the appeal is successful, whether in whole or in part. This is where the harm occurs.
[11] Though the Crown does not make this point, I note that Rule 334.39 of the Federal Courts Rules provides that, with certain exceptions, no costs may be awarded in a class proceeding. This means that, in all likelihood, any resources that are wasted or have to be re-applied following this appeal cannot be compensated for in costs. I acknowledge the existence of some authorities to the effect that the unavailability of costs as compensation for harm is generally not sufficient to establish that the harm is irreparable: Jiang v. Vancouver City Savings Credit Union, 2019 BCCA 374 at para. 15; Airbnb Inc. v. Ware, 2025 BCCA 298 at para. 27; Bell Canada v. Communications, Energy and Paperworks Union, 1997 CanLII 4851 (FC), [1997] F.C.J. No. 207, 127 F.T.R. 44 at paras. 38-40 (F.C.T.D.); Brocklebank v. Canada (Minister of National Defence), 1994 F.C.J. No. 1496, 86 F.T.R. 23 at para. 11 (F.C.T.D.). However, these authorities allow for exceptions and, in any case, are not binding on this Court. I am of the view that the circumstances of this case are such that the potential harm to the Crown is irreparable. In combination with the unavailability of costs, I am particularly concerned about the number of issues on appeal and the profound but unpredictable effects this Court’s decision could have on the conduct of the certified action unless the appeal is dismissed in its entirety.
[12] Though I am not convinced that the magnitude of any irreparable harm to which the Crown may be exposed is large, I accept that the Crown will likely suffer some amount of irreparable harm if the stay is not granted.
[13] Finally, the third prong of the RJR-MacDonald test requires the Court to balance the harm to which the Crown will be exposed if the stay is not granted against the harm to which Ms. Ferris (and other members of the class) will be exposed if the stay is granted. The Crown argues that the only harm to which Ms. Ferris and other class members risk being exposed is a needless delay in the certified action if the appeal is wholly unsuccessful.
[14] For her part, Ms. Ferris argues that the Crown has already delayed in addressing the issues raised in the certified action by failing to respond to the findings of the Ontario Superior Court of Justice in 2020 in Simpson v. Canada (Attorney General), 2020 ONSC 6465 (Simpson). Ms. Ferris also criticizes the Crown for bringing the present stay motion only after it missed a deadline in the FC Order. Even then, the Crown filed its motion only several weeks later.
[15] I accept that there is harm inherent in delayed proceedings, but I note that the Crown has met the deadlines contemplated in the Federal Courts Rules for the present appeal. It has filed its memorandum of fact and law, and the appeal could be in condition for filing a requisition for hearing within days. I also accept that it would have been preferable if the Crown had moved for a stay before missing a deadline contemplated therein. However, the delay in moving for a stay did not have the effect of extending the duration of the stay and does not appear to have been a strategic choice. I take into account also that the delay in the certified action as a result of the requested stay is likely to be small compared to the amount of time that has already passed since the events in issue. Moreover, it is open to Ms. Ferris to request that this appeal be expedited.
[16] As regards Simpson, I will not comment on the extent to which it is relevant to the issues in the certified action, but I do note that the Crown’s position is that Simpson addresses different issues.
[17] In my view, the balance of convenience favours the granting of the stay. Accordingly, I conclude that the Crown has met all of the requirements for a stay of the Federal Court proceeding.
[18] Though the Crown seeks costs of the motion, I agree with Ms. Ferris that an award of costs on this motion would be inappropriate in view of Rule 334.39. . Salt River First Nation #195 v. Heron
In Salt River First Nation #195 v. Heron (Fed CA, 2024) the Federal Court of Appeal dismisses a motion to stay an order pending appeal:[5] The parties agree that (i) paragraph 50(1)(b) of the Federal Courts Act, R.S.C. 1985, c. F-7, provides the authority for this Court to grant a stay where "“it is in the interest of justice that the proceedings be stayed”", and (ii) Rule 398(1)(b) of the Federal Courts Rules, S.O.R./98-106, provides that "“[o]n the motion of a person against whom an order has been made, … (b) where a notice of appeal of the order has been issued, a judge of the court that is to hear the appeal may order that it be stayed.”"
[6] The parties also agree that the legal test applicable to SRFN’s motion (with regard to both the stay and the injunction it seeks) is as contemplated in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385 (RJR-MacDonald). The moving party must establish (i) a serious question to be tried, (ii) that it will suffer irreparable harm if the stay (or the injunction) is not granted, and (iii) that the balance of convenience favours granting the stay.
[7] The threshold for establishing a serious question to be tried is generally a low one. The Court must be satisfied that the appeal is not frivolous or vexatious: RJR-MacDonald at 348.
[8] With regard to irreparable harm, the moving party must adduce clear, compelling and non-speculative evidence to establish, on a balance of probabilities, that it will suffer "“harm which either cannot be quantified in monetary terms or which cannot be cured”": RJR-MacDonald at 341; Sheldon M. Chumir Foundation for Ethics in Leadership v. Canada (National Revenue), 2023 FCA 242 at paras. 6–8.
[9] The issue of the balance of convenience involves "“a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits”": RJR-MacDonald at 342.
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[15] Firstly, bearing in mind that evidence of irreparable harm must be clear, compelling and non-speculative, I am not convinced that there is admissible (non-hearsay) and compelling evidence to support the assertion that the harmful effects of the previous political upheaval at SRFN are happening again. Though the ingredients may be present, and such effects might occur, I find the assertion to be speculative and not compelling. I also note that the SRFN even acknowledges that its reputation recovered in time. Accordingly, it is not clear to me that any harm of the kind asserted by SRFN would be irreparable. . 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 [fully assessed at paras 19-41]:[16] As noted, Bell seeks to stay the Decision until the disposition of its application for leave to appeal the Decision, and if, leave is granted, until the appeal is decided. If Bell’s motion is granted, Bell would not be required to provide its competitors with temporary access to its FTTP facilities over aggregated wholesale HSA within Ontario and Quebec until this Court rules on Bell’s motion for leave to appeal the Decision, and if, leave is granted, until the appeal is decided.
[17] TekSavvy, QMI, and CNOC oppose the motion.
[18] The test for the granting a stay in a case like this is well-known and requires the moving party to establish that: (1) their appeal raises a serious issue; (2) they would suffer irreparable harm if the stay were not granted; and (3) the balance of convenience favours granting the stay: RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 at 334 (RJR-MacDonald); Canada v. Canadian Council for Refugees, 2008 FCA 40, 2008 CarswellNat 150 at para. 18 (Canadian Council for Refugees). All three of the foregoing criteria must be met for a stay to be issued by a court.
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[41] Given that the RJR-MacDonald test is conjunctive, Bell’s inability to establish that it will suffer irreparable harm means that its motion for stay must be dismissed. It is therefore unnecessary for me to comment on the third factor in the RJR-MacDonald test, being that of the balance of convenience. . Wilson v. Meeches
In Wilson v. Meeches (Fed CA, 2023) the Federal Court of Appeal considered a federal stay pending appeal - and their practical remedy if they lost their motion:[2] The parties agree that the requirements for a stay pending appeal are as set forth in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311: (i) a serious issue to be tried; (ii) irreparable harm to the moving party if no stay is ordered, and (iii) the balance of convenience favouring the moving party. All three requirements must be met, and omission of any one is fatal to the motion for the stay: Bombardier Recreational Products Inc. v. Arctic Cat, Inc., 2020 FCA 116 at para. 10.
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[14] There are at least two options available to the appellants if they remain concerned about continuing exposure to irreparable harm. First, they may seek to expedite the present appeal (I note that no party has raised this option to date). This Court can respond positively to such a request in appropriate circumstances. Second, the appellants may move again for a stay in the event that the circumstances change such that they do stand to suffer irreparable harm if a stay is not granted.
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