Injunctions - RJR - 'Balance of Convenience'. Power Workers' Union v. Canada (Attorney General)
In Power Workers' Union v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered a preliminary motion for interim and interlocutory injunctions [under Federal Rules R373] in the course of an appeal of an unsuccessful union JR against a "regulatory document issued by the Canadian Nuclear Safety Commission", here on constitutional grounds. The policy in the impugned document, which the injunction would suspend if granted, established policy regarding "pre-placement and random alcohol and drug testing of safety-critical workers employed by the respondent employers at Class I high-security nuclear power plants".
This motion is essentially a stay pending appeal (a similar lower court stay was already issued in the JR proceeding), and as such is heard under the RJR-MacDonald doctrine:
C. Balance of Convenience. Sase Aggregate Ltd. v. Langdon,
 Finally, the appellants must demonstrate that the balance of convenience favours granting the stay (RJR-MacDonald at 342). This branch of the test involves a comparison of the harm to the responding party from granting the injunction and the harm to the moving party from refusing to grant the injunction, pending a decision on the merits (RJR-MacDonald at 342; Canada (Citizenship and Immigration) v. Canadian Council of Refugees, 2020 FCA 181 at para. 10).
 It is often referred to as the “balance of inconvenience” test. The precise factors will vary from case to case; however, the public interest is considered at this stage (RJR-MacDonald at 342).
 The Stay Judge found that there were competing public interests, one in implementing the RegDoc and another in protecting workers’ privacy interests (Stay Decision at paras. 123-124). The Stay Judge also noted that the injunction would not suspend implementation of the RegDoc in full, a robust alcohol and drug testing program was in place, and there was no evidence of actual workplace impairment issues (Stay Decision at paras. 129‑130). Weighing these factors, the Stay Judge concluded that the balance of convenience favoured the appellants.
 On this motion, the appellants rely on many of the factors recognized in the Stay Decision: the public interest in safeguarding workers’ privacy, existing workplace safety measures, and the lack of workplace impairment issues. They also submit that the respondents have not provided evidence of prejudice that would flow from the stay being granted. They say that the proposed injunction would preserve the status quo.
 The respondents submit that the public interest in implementing the RegDoc without further delay prevails, given the statutory mandate of the CNSC and heightened safety concerns associated with nuclear power plants. The respondents argue that maintaining the status quo requires implementation of the RegDoc, to respond to emerging issues in the nuclear power industry, or that the status quo is the application of the RegDoc, as it has been in effect since January 2021.
 The onus on a public authority to demonstrate irreparable harm to the public interest is less than for a private applicant. The test will usually be satisfied upon establishing that the authority is charged with the duty of promoting or protecting the public interest and the activity in issue was undertaken pursuant to that responsibility. Once these requirements are met, a court should in most cases assume that irreparable harm to the public interest would result from restraint of the activity in issue (RJR-MacDonald at 346; Harper v. Canada (Attorney General), 2000 SCC 57 at para. 9).
 The public interest in nuclear safety is readily acknowledged. The CNSC regulates the development, production and use of nuclear energy to prevent unreasonable risk to the environment, health and safety of persons or national security. The RegDoc was issued pursuant to that mandate. The public interest in the RegDoc is established, as is the presumption of irreparable harm should the implementation of the RegDoc be suspended (Stay Decision at para. 119).
 However, no party to this litigation, including the government, has a monopoly on the public interest (RJR-MacDonald at 343). The “public interest” includes both the interests of identifiable groups and the concerns of society generally (RJR-MacDonald at 344). A private party challenging the constitutionality of legislation or the authority of a public authority may represent the public interest in upholding rights under the Charter (RJR-MacDonald at 344).
 Here, there is a public interest in suspending implementation of the RegDoc. The privacy interests are not only personal to the particular safety-critical employees who would be subject to the testing if implemented. The interest in protecting constitutional privacy rights transcends the individuals and, like other important public interests, concerns society at large (Sherman Estate v. Donovan, 2021 SCC 25 at paras. 33 and 75; Stay Decision at para. 120).
 I acknowledge the important public interest in allowing the CNSC to carry out its statutory mandate and the essential nature of nuclear power safety. But the Attorney General of Canada risks hyperbole when it raises the “devastating and long lasting impacts” of a potential nuclear incident as an additional reason to not grant the injunction.
 The evidence does not support a conclusion that a nuclear incident is more likely to occur if the impugned provisions are suspended pending disposition of the appeal. The evidence reflects many circumstances mitigating against such a risk: safety in the workplace is a shared priority for all parties, the employers’ facilities operate with extensive “defence-in-depth” measures to avoid a workplace incident, there are no issues with workplace impairment, and other provisions of the RegDoc that allow for drug and alcohol testing in certain circumstances will not be suspended (Stay Decision at para. 127).
 Further, any injunction granted by this Court would be of limited duration. All remaining steps to perfect the appeal are to be completed by December 13, 2023. The Court is prepared to assist the parties in expediting a hearing for the appeal, which would minimize the duration of any injunction. Subject to the availability of the parties, this could be early in 2024.
 As addressed under the “irreparable harm” prong of the test, the evidence concerning the invasive nature of the proposed testing under the impugned provisions of the RegDoc, including the collection of bodily fluids and personal information, establishes harm. This is actual, non-trivial, and irreparable harm.
 On the other side of the balance, while recognizing the important public interest in allowing the CNSC to carry out its statutory mandate, I find the evidence lacking that other irreparable harm is likely if the impugned provisions of the RegDoc are temporarily suspended, pending a disposition of the appeal. Balancing the actual harm anticipated on implementation of the impugned provisions of the RegDoc against the harm to the public interest in temporarily suspending that implementation, I find that the balance of convenience favours the appellants.
 Preserving the status quo may be a relevant consideration in the balance of convenience when everything else is equal. As a general rule, it is not relevant in Charter cases where the effect is to tip the balance against those challenging the status quo by claiming a breach of the Charter (RJR-MacDonald at 347). Here, the concept confuses more than assists the determination of whether to grant the injunction as the status quo has different aspects. The RegDoc has been in effect since January 2021. Originally, pre-placement testing was to be implemented as of July 2021 and random testing as of January 2022, but the CNSC has indicated that it will not enforce these provisions before December 1, 2023.
 Having determined that the balance of convenience favours the appellants, I do not rely on the status quo as a relevant consideration.
 I am satisfied that the balance of convenience favours granting the injunction pending final disposition of the appeal. The appellants have satisfied the third branch of the test and thus all of the requirements for granting an injunction.
In Sase Aggregate Ltd. v. Langdon, (Ont CA, 2023) the Court of Appeal considered the 'balance of convenience' element of the RJR stay pending appeal test:
(c) Balance of Convenience. Shanthakumar Estate v RBC
 The third factor to consider is the balance of convenience between the parties, which requires the court to consider the fact that the matter has already been adjudicated and the order must be regarded as prima facie correct: Circuit World Corp., at p. 678. The court must also consider which of the parties will suffer the greater harm from the stay being granted or refused: RJR-MacDonald, at p. 342.
In Shanthakumar Estate v RBC (Div Court, 2023) the Divisional Court adds an unusual 'equitable' factor ('clean hands') to the typical 'balance of convenience' of the RJR-MacDonald 'stay pending appeal' test:
Additional Observation: “Clean Hands” Doctrine
 Although the RBC respondents’ arguments respecting the appellant’s litigation misconduct do not tip the balance of harm/convenience in favour of refusing a stay of the Subject Orders, they are relevant to the “clean hands” doctrine. In addition, the fact, timing and circumstances of the appellant’s transfer of the Property out of the estate and into Mr. Mylabathula hands are also relevant to the question of whether the appellant has “come to equity with clean hands”.
 I am mindful that the “clean hands” doctrine is not a strict rule that functions to automatically disentitle a party from relief, but, rather, is applied in the court’s discretion considering the specific circumstances of each case (see: Hrvoic v Hrvoic, 2023 ONCA 508, at para. 18).
 In the specific circumstances of the case-at-bar, I find that the appellant’s litigation conduct and its transfer of the Property render its hands “unclean”.