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Appeal Court Dicta

Injunctions - RJR - General

. 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, and as such is heard under the RJR-MacDonald doctrine:
[15] The test for obtaining an interlocutory injunction is set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 at 334, 111 D.L.R. (4th) 385 [RJR-MacDonald]. The moving party must establish that: (1) there is a serious issue to be tried; (2) it will suffer irreparable harm if the injunction is not granted; and (3) the balance of convenience, taking into account the public interest, favours granting the injunction.

[16] The moving party has the burden of satisfying each branch of the test, on a balance of probabilities (Canada (Attorney General) v. Robinson, 2021 FCA 39 at para. 17, citing Novopharm Limited v. Janssen-Ortho Inc., 2006 FCA 406).
. Sase Aggregate Ltd. v. Langdon,

In Sase Aggregate Ltd. v. Langdon, (Ont CA, 2023) the Court of Appeal considered the RJR stay pending appeal test:
(2) Test for Granting a Stay

[9] In RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334, the Supreme Court of Canada outlined a three-part test for obtaining a stay of a judgment pending appeal:
(1) a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried;

(2) it must be determined whether the applicant would suffer irreparable harm if the application were refused; and

(3) an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.
[10] These factors are not to be considered in isolation of each other. In other words, they are not watertight compartments. The strength of one may compensate for the weakness of another while considered against the backdrop of the overarching consideration: do the interests of justice call for a stay: BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, at para 16; Livent Inc. v. Deloitte & Touche, 2016 ONCA 395, at para. 5; and Thunder Bay (City) v. Canadian National Railway Company, 2018 ONCA 919, at para. 35.


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