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Injunctions - RJR - 'Balance of Convenience'. 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 'balance of convenience' element of the RJR stay test, here involving "the broad public interest in enforcing duly enacted laws":(3) Does the balance of convenience favour granting the orders sought?
[25] This factor requires “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”: Manitoba (A.G.) v. Metropolitan Stores Ltd., 1987 CanLII 79 (SCC), [1987] 1 S.C.R. 110, at p. 129. Potential harm to third parties may also be relevant.
[26] I find that the balance of convenience favours the respondent. Granting the orders would harm the broad public interest in enforcing duly enacted laws and, more specifically, the public interest in enforcing laws regulating gambling and alcohol designed to protect minors and other vulnerable members of society. This outweighs any irreparable harm that the appellant and third parties will suffer if the injunctive orders are not granted.
[27] In general, courts must be “sensitive to and cautious of making rulings which deprive legislation enacted by elected officials of its effect”: RJR-MacDonald, at p. 333. Accordingly, for “a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant”: RJR-MacDonald, at p. 346. Injury to the public interest is presumed to flow from staying enforcement of legislation premised on a statutory duty to promote or protect the public interest. As the Supreme Court said in RJR-MacDonald, at p. 346:The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action. See also: Maple Ridge (District of) v. Thornhill Aggregates Ltd. (1998), 1998 CanLII 6446 (BC CA), 54 B.C.L.R. (3d) 155 (C.A.), at para. 9; Saskatchewan (Minister of Environment) v. Redberry Development Corp. (1987), 1987 CanLII 4588 (SK KB), 58 Sask. R. 134 (Q.B.), at para. 18, aff'd (1992), 1992 CanLII 8229 (SK CA), 100 Sask. R. 36 (C.A.).
[28] Applying these principles, I find that the public interest would be harmed if I granted the orders sought. The respondent Registrar is appointed by the Commission’s board to oversee enforcement of provincial liquor and gambling legislation.[7] The Alcohol and Gaming Commission of Ontario is mandated to exercise and perform its duties in the public interest, as well as “in accordance with the principles of honesty and integrity, and social responsibility”.[8]
....
[37] I have found that the appellant will suffer some irreparable harm if its motion is not granted. I also accept that some third parties will likely suffer a loss of income. But I am not persuaded that these monetary harms outweigh the harm to the public interest that the respondent is mandated to protect, and the potential harm to vulnerable members of society, including children and individuals in the grip of addiction, if the orders sought by the appellant are granted. . 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 'balance of convenience' element of the RJR stay/injunction test:(3) Does the balance of convenience favour granting a stay?
[50] The final component of the test to decide whether to grant interim relief involves "“a determination of which of the two parties will suffer the greatest harm”" from the granting or refusal of the stay (Metropolitan Stores (MTS) Ltd. v. Manitoba Food & Commercial Workers, Local 832, 1987 CanLII 79 (SCC), [1987] 1 S.C.R. 110, 1987 CarswellMan 176 at para. 36). Where a party applies for interim relief in the context of proceedings opposing an administrative agency, the "“interests of the public, which the agency is created to protect, must be taken into account and weighed in the balance, along with the interests of private litigants”" (Ainsley Financial Corp. v. Ontario Securities Commission (1993), 1993 CanLII 5552 (ON SC), 14 O.R. (3d) 280 at 303-4, cited with approval in RJR-MacDonald at para. 69). Where a stay restrains the actions of an administrative agency charged with the duty of promoting or protecting the public interest and where its actions were undertaken pursuant to that responsibility, irreparable harm to the public interest is nearly always established (RJR-MacDonald at para. 76). In this context, the role of the court in assessing the balance of convenience is circumscribed:A court should not, as a general rule, attempt to ascertain whether actual harm would result from the restraint sought. To do so would in effect require judicial inquiry into whether the government is governing well, since it implies the possibility that the government action does not have the effect of promoting the public interest and that the restraint of the action would therefore not harm the public interest. (RJR-MacDonald at para. 77) . 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 'balance of convenience' element of a professional discipline stay pending appeal motion (RJR):C. The Balance of Convenience
[50] Under this leg of the test, the court must balance the prejudice to the moving party of not granting the stay against the prejudice to the responding party in granting it. In a case involving professional discipline, it is the public’s interest that must be balanced against the moving party’s. See: Yazdanfar v. College of Physicians and Surgeons of Ontario, 2012 ONSC 2422 at paras. 67-68.
[51] In this leg of the test, the public interest is paramount. Schabas, J. words at para.38 of Kitmitto are appropriate here:In my view, the balance of convenience favours the public interest over the private interests of the moving parties in not staying the market participation bans pending the appeals. To continue the interim stay would ignore the fundamental change in circumstances brought about by the Tribunal’s findings about each of the moving parties, the legislative direction that sanctions are not to be delayed absent meeting the test for a stay, the limits on supervision of Goss, and the need to preserve public confidence in the administration and enforcement of the Securities Act. [52] Prior to his being found to have breached the Code of Conduct, the Appellant faced only allegations. Things are different, now - he has been found to have engaged in professional misconduct. His conviction is for acts which are viewed by his regulator as being sufficiently heinous as to merit cancellation of his licence. A stay would undermine public confidence in the self-regulation of members of his profession and other similar professions. See: Aboujamara, supra, at para. 25.
[53] Finally, the Appellant faces the presumption that the decision was correct until he succeeds on the appeal.
[54] The Appellant argues that he will suffer prejudice because of the suspension because he cannot continue to serve his clients in a field built on trust between the client and the service provider. It is an inherently personal profession requiring consistent client engagement over long career to build trust and loyalty between the client and service provider.
[55] The determination by the College that the Appellant had engaged in professional misconduct caused that damage, not the stay. . Ontario Securities Commission v. Cacoeli Asset Management Inc. [third party interests]
In Ontario Securities Commission v. Cacoeli Asset Management Inc. (Ont CA, 2025) the Ontario Court of Appeal considered a motion to stay a receivership order made under s. 129 [SS: 'Appointment of receiver, etc'] of the Securities Act.
The court considers the 'balance of convenience' element of the RJR stay test, here where third party interests were involved:[43] The interests of third parties are also a relevant consideration at this stage: Ducharme v. Hudson, 2021 ONCA 151, 155 O.R. (3d) 281, at para. 25. I find that mortgagees, including MCAP and CMLS, will be affected by a stay. The mortgagees cannot take steps to enforce their security interests under the terms of the monitorship order. During the monitorship, Cacoeli’s principals have remained in charge, and Cacoeli limited partnerships have continue to default on their mortgage obligations. As of June 9, 2025, the arrears on MCAP’s mortgages exceeded $250,000. Since the mortgage loans are securitized into mortgage-backed securities under the National Housing Act, R.S.C. 1985, c. N-11, MCAP is required to make payments equivalent to the principal and interest owed to certificate-holders even when it does not receive payments from mortgagors when due. Had it not been for the OSC’s application, MCAP would have commenced mortgage enforcement proceedings. Although the Receivership Order would still preclude mortgagees from taking such steps, it nonetheless places them in a better position because the Receiver is required to protect the interests of all stakeholders, including creditors. . 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
[39] 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).
[40] 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).
[41] 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.
[42] 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.
[43] 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.
[44] 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).
[45] 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).
[46] 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).
[47] 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).
[48] 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.
[49] 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).
[50] 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.
[51] 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.
[52] 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.
[53] 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.
[54] Having determined that the balance of convenience favours the appellants, I do not rely on the status quo as a relevant consideration.
[55] 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. . Sase Aggregate Ltd. v. Langdon,
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
[24] 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. . Shanthakumar Estate v RBC
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
[32] 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”.
[33] 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).
[34] 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”.
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