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Injunctions - RJR - 'Public Interest'. Central Organization for Jewish Education Lubavitch British Columbia v. Canada (National Revenue)
In Central Organization for Jewish Education Lubavitch British Columbia v. Canada (National Revenue) (Fed CA, 2026) the Federal Court of Appeal dismissed (walking through the RJR test) an interlocutory injunction motion [under FCR 372-373] to bar a statutory ITA s.168(1) ['Revocation of Registration of Certain Organizations and Associations - Notice of intention to revoke registration'] charity revocation notice:[2] If a charity ceases to comply with any of the requirements governing registration, the Minister of National Revenue (Minister) may give notice, under subsection 168(1) of the ITA, that she proposes to revoke its registration. Thirty days following the mailing date of that notice, the Minister may publish a copy of the notice of revocation in the Canada Gazette under paragraph 168(2)(b) of the ITA. Revocation is effective the date the notice is published. Rights of objection and appeal remain.
[3] The Canada Revenue Agency (CRA) determined that Central failed to comply with the requirements necessary to maintain registration as a charity. The Minister consequently advised, through the Director General of the Charities Directorate, of her intention to publish a notice of revocation in the Canada Gazette revoking Central’s registration pursuant to paragraph 168(2)(b) of the ITA.
[4] Central filed an application for an injunction under rules 372 and 373 of the Federal Courts Rules, SOR/98-106 seeking to enjoin the Minister from publishing the notice of revocation until it had the opportunity to pursue the objection and appeal process under subsections 168(4) and 172(3) of the ITA. ....
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II. The legal framework
[17] The issue is whether Central has shown that it would be just and equitable for the Court to stay publication of the notice revoking registration until determination of the appeal process, based on the well-established tripartite test governing interim relief (Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, [2017] 1 S.C.R. 824 at para. 25 (Google); RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 (RJR-MacDonald)); Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency), 2025 FCA 164 at para. 14 (Ostrich Farms); Slepcsik v. Canada (Citizenship and Immigration),2026 FCA 137 at para. 29 (Slepcsik)).
[18] The Google/RJR-MacDonald test applies to both applications to restrain the publication of revocation notices as well as to motions for interim and interlocutory stays (Fortius Foundation v. Canada (National Revenue), 2022 FCA 176 at para. 15 (Fortius); Ahlul-Bayt Centre, Ottawa v. Canada (National Revenue), 2018 FCA 61, 2018 D.T.C. 5037 at para. 8 (Ahlul-Bayt)). Consequently, Central must satisfy the same three requirements: that there is a serious issue to be tried, that publication of the notice will cause irreparable harm, and that the balance of convenience favours the applicant. Assessing these criteria is context‑specific and requires the Court to determine whether granting the relief is "“just and equitable in all of the circumstances of the case”". The test is discretionary, but this does not alter the requirements of the test, nor does it add a further element (Fortius at para. 15 citing Google at para. 25; Slepcsik at paras. 29, 30; Ahlul-Bayt at para. 12).
[19] All three prongs of the test must be satisfied, and a court cannot grant relief where one element has not been met. As explained by Rochester J. in Slepcsik, this does not mean that the three prongs are independent. There are "“important and considerable interconnections”" between the three factors. Strength in one element may serve to balance weakness in another. However, the failure to satisfy one element cannot be rescued by strength in the other two (Slepcsik at paras. 32, 111, citing Ostrich Farms at para. 14). Each element must be satisfied, although to varying degrees.
[20] The threshold for establishing a serious issue is low. To satisfy this test, the moving party must demonstrate only that the objection is neither vexatious nor frivolous based on a preliminary assessment of the merits of the case. A prolonged examination of the merits is generally neither necessary nor desirable (RJR-MacDonald at p. 337; Slepcsik at para. 33). However, where the result of the interlocutory motion, in effect, amounts to a final determination of the underlying proceeding, a more extensive review of the merits of the case must be undertaken and a likelihood of success must be shown (RJR-MacDonald at pp. 338–339; Fortius at para. 16; Slepcsik at para. 34).
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III. Irreparable Harm
[22] To prove that it would suffer irreparable harm, an applicant must establish that it will suffer harm of a type or nature that "“cannot be quantified in monetary terms or cannot otherwise be cured”" (RJR-MacDonald at p. 341; Fortius at para. 18; Slepcsik at para. 39; Ahlul-Bayt at para. 10). A court may consider the interests of those who are dependent on the charity in this assessment (Fortius at para. 18; Glooscap Heritage Society v. Canada (National Revenue), 2012 FCA 255, 440 N.R. 232 at para. 34 (Glooscap)). Only clear and compelling evidence can satisfy this branch of the test, as irreparable harm cannot be inferred. It requires evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless the stay is granted (Fortius at para. 18; Haché v. Canada, 2006 FCA 424, [2006] F.C.J. No. 1886 (QL) at para. 11; Glooscap at para. 31). That said, the evidentiary burden on an applicant seeking a stay, such as the case here, is no different – it remains the balance of probabilities (Fortius at para. 18).
[23] The determination whether irreparable harm has been established takes place within the parameters or guardrails of certain principles. I have mentioned two; the rejection of evidence that is based on speculation, and the need for particularity sufficient to meet the evidentiary burden. But there is a third constraint, and that is that the normal, foreseeable consequences associated with the exercise of the statutory powers granted by the Minister do not, in and of themselves, give rise to irreparable harm (Fortius at para. 32).
[24] This Court has rejected the assertion that irreparable harm necessarily flows from the Minister’s exercise of the statutory power authorized by Parliament. If that, alone, were sufficient, irreparable harm would be established in every case, as a charity could say that its work would be seriously impaired by the Minister’s revocation and the inevitable reduction in donations (Gateway City Church v. Canada (National Revenue), 2013 FCA 126, 445 N.R. 360 at para. 14 (Gateway)):Accepting [such general assertions] as sufficient evidence of irreparable harm would unduly undercut the power Parliament has given to the Minister to protect the public interest in appropriate circumstances by publishing her notice and revoking a registration even before the determination of the objection and later appeal. [25] This is not saying that interlocutory relief can never or seldom obtained; rather, it explains why the assertion of irreparable harm must be accompanied with convincing evidence, usually of a financial nature.
[26] Publication of the notice of revocation does not foreclose the applicant’s statutory appeal rights (Fortius at para. 26). The ITA permits the Minister to revoke charitable registration "“at this time, subject, of course, to later challenge”" (Glooscap at para. 52). An applicant has the right to file an objection with the Minister in response to a decision to revoke the charity’s registration, and if the Minister confirms his decision, the applicant can then appeal to this Court, pursuant to subsection 172(3) of the ITA. At that stage, the Court will hear the appeal on its merits. The outcome on this motion does not therefore eliminate the opportunity the applicant has under the ITA to challenge the Minister’s decision to revoke its registration as a charity.
[27] The mere assertion that an application may become moot in the absence of a stay is insufficient to establish irreparable harm (Fortius at paras. 20, 27). To accept the assertion that a dismissal of a motion for injunctive relief renders the application moot would, again, result in a predetermined outcome in all analogous cases; in every case, a registered charity facing revocation of its charity status could effectively frustrate the Minister’s ability to employ the statutory powers under subsection 168(2) of the ITA by filing both an application seeking a long‑term stay of the revocation and a motion seeking stay (Fortius at para. 27).
[28] Therefore, absent evidence of unique or specific harm or damage, irreparable harm does not encompass the ordinary consequences that flow from a charity losing its registered charity status (such as loss of tax-exempt status, ineligibility to issue donation receipts, and payment of a revocation tax pursuant to section 188 of the ITA) (Fortius at para. 31). To accept the argument that a reduction in donations, for example, invariably satisfies the second branch of the RJR‑MacDonald test in all circumstances would "“effectively eliminate that element of the test in relation to each and every application made pursuant to paragraph 168(2)(""b) of the ITA”" (Holy Alpha and Omega Church of Toronto v. Canada (Attorney General), 2009 FCA 265, [2010] 1 C.T.C. 161 at para. 22 (Holy Alpha)).
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IV. Balance of Convenience
[39] The third prong of the tripartite test requires that the Court assess the balance of convenience, involving "“a determination of which of the two parties will suffer the greatest harm”" should the interim relief be granted or refused (Slepcsik at para. 99; Canada (National Revenue) v. Shopify Inc., 2025 FCA 232 at para. 24 (Shopify); Ostrich Farms at para. 50; RJR‑MacDonald at p. 342; Manitoba (Attorney General) v. Metropolitan Stores Ltd., 1987 CanLII 79 (SCC), [1987] 1 S.C.R. 110, 1987 CarswellMan 176 at para. 36).
[40] Where the moving party applies for interim relief against a public authority, the public interest, which the agency is created to protect must be taken into account and weighed in the balance, along with the interests of private litigants (RJR-MacDonald at p. 343; Ostrich Farms at para. 50; Slepcsik at para. 100). Where a stay restrains the actions of a public authority 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 (Ostrich Farms at para. 50 citing RJR-MacDonald at p. 346). I will explain why, in this context, that is so.
[41] First, the public has a legitimate interest in the exercise of CRA’s statutory mandate to enforce the obligations applicable to registered charities under the ITA (Fortius at para. 39; see also Cheder Chabad at para. 32). The CRA’s enforcement of these obligations protects both the public’s confidence in registered charities as well as the interest of potential donors (International Charity Association Network v. The Queen, 2008 TCC 3, [2008] 4 C.T.C. 2064 at paras. 76–77). This public interest attracts significant weight in the analysis of the balance of convenience (Fortius at para. 39; Ostrich Farms at para. 50; Glooscap at para. 53).
[42] Second, the Minister has a statutory responsibility to protect the public interest in ensuring that registered charities fully comply with the requirements of continued registration. In exercising his duties under the ITA, absent evidence to the contrary, the Minister is assumed to be acting in the public interest and in good faith (Cheder Chabad at para. 33).
[43] The public interest is not an amorphous value. There is a strong public interest in ensuring public confidence in the charitable sector. Public confidence that charities are operating in full compliance within the law protects taxpayers and encourages charitable giving. Secondly, as between charities competing for a finite pot of donations from the public, there is a strong public interest in ensuring that donations are directed to charities that in fact comply with the requirements of the ITA.
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[48] Finally, Central challenges the Minister’s reliance on Glooscap, and the argument that the weight to be accorded to the public interest is "“driven up”" where the charity has received previous warnings (Glooscap at para. 53). It notes that, in Glooscap, the charity continued to participate in an illegitimate tax-avoidance scheme, despite warnings from its accountant and Minister. The Court found that the charity’s involvement with the tax shelter was "“central”" in the application before it.
[49] The facts of Glooscap are indeed different than those before the Court on this motion. Nevertheless, the alleged failure of Central to adhere to the Compliance Agreement weighs heavily against it in assessing where the balance of convenience lies. While I accept that, at this point, the breaches of the Compliance Agreement have not been proven on the merits, the asserted failings are serious and widespread, touching virtually every aspect of Central’s financial controls, receipting practices, governance and use of funds. Central has not established that the balance of convenience lies in its favour. . Slepcsik v. Canada (Citizenship and Immigration)
In Slepcsik v. Canada (Citizenship and Immigration) (Fed CA, 2026) the Federal Court of Appeal dismisses a motion to stay an immigration removal pending appeal.
Here the court considers the 'balance of convenience' element in the RJR-Macdonald stay pending appeal test, here where the respondent's interest is that of a public authority:VI. Balance of Convenience
[99] The third prong of the tripartite test requires that the court conduct an assessment of the balance of convenience. This involves a determination of which of the two parties will suffer the greatest harm should the requested stay be granted or refused (Ostrich Farms at para. 50; RJR-MacDonald at p. 342; Manitoba (Attorney General) v. Metropolitan Stores Ltd., 1987 CanLII 79 (SCC), [1987] 1 S.C.R. 110, 1987 CarswellMan 176 at para. 36).
[100] Where, as it is in the present case, the moving party applies for interim relief against a public authority, 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 CanLII 5552 (O.N. C.T.G.D.), 14 O.R. (3d) 280 at p. 303–4, cited with approval in RJR-MacDonald at p. 343 and Ostrich Farms at para. 50). In the context of motions for stays of removals, the public interest lies in the effective administration of Canada’s immigration and refugee protection regime (Atwal at para. 19; Ghanaseharan at para. 22). Our Court has stated that "“[t]his is not simply a question of administrative convenience, but implicates the integrity and fairness of, and public confidence in, Canada’s system of immigration control”" (Ghanaseharan at para. 22). Once a removal order is enforceable, "“the foreign national against whom it is made must leave Canada immediately”" (IRPA, ss. 48(2). The Minister has a statutory duty, pursuant to subsection 48(2) of the IRPA, to enforce removal orders "“as soon as possible”". The public, therefore, has a legitimate interest in the exercise of CBSA’s statutory mandate to enforce the obligations applicable to foreign nationals in the IRPA.
[101] Where the enforcement of a statutory duty is at issue, the role of the court in assessing the balance of convenience is circumscribed – meaning one must not, as a general rule, seek to ascertain whether there is actual harm on the part of the government or enquire whether the government is functioning well (RJR-MacDonald at p. 346). The administrative agency benefits from a presumption that actions taken under the applicable statutory regime are in the public interest. The consequence of this, as Justice Heckman explains, is that "“[w]here 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”" (Ostrich Farms at para. 50).
[102] I am satisfied that there is harm to the public interest. In the context of a motion for a stay of removal, the public interest and its associated harm attract significant weight. In other words, the balance of convenience will generally favour the Minister in such cases. . West Carleton Community Alliance v. The City of Ottawa et al
In West Carleton Community Alliance v. The City of Ottawa et al (Ont Div Ct, 2026) the Ontario Divisional Court partially granted a motion, here seeking a stay of a by-law amendment's "implementation pending the hearing of its application" and further, the striking of "portions of the application and portions of the Applicant’s record" - these within a JR brought "to quash both the Amendment and the MSR" ["Municipal Support Resolution"].
The court considered the 'public interest' (here of a municipality) in assessing the RJR stay pending test:iii) Does the balance of convenience favour granting the stay?
[35] The Applicant, relying on R.J.R.-MacDonald, submits that the City is not the exclusive representative of the public interest. The Applicant can reveal the public interest of an identifiable group. The Applicant submits that the status quo of no development on the land should be maintained until the application can be heard on its merits. The Applicant asks the court to infer, based on the Proponent’s refusal to answer questions about this issue, that the Proponent does not yet have its site plan approvals. Therefore, the Applicant submits that a delay in getting started will not have a significant effect on the Proponent.
[36] The Proponent states that if the operation of the bylaw is stayed, the site plan approvals cannot proceed. The site plan approvals can only be undertaken in conformity with a valid bylaw. Therefore, the stay would put the approvals and therefore the project in jeopardy.
[37] The Proponent estimates its costs of delay at five million dollars per month. It notes that June 30, 2027, is the “in-service” date for the BESS. The Proponent’s affiant attests that the project is currently on schedule to meet that date. Any delay in the site plan approvals puts that date at risk and could result in the Proponent being liable for damages to IESO.
[38] The Applicant pointed to portions of the Proponent’s affidavit to suggest that the Proponent’s contentions about both the cause and the effect of delay are incorrect. The Applicant suggested that previous delay was the cause of the potential harm to the Proponent, and that the timelines in the Proponent’s project plans are “a fiction”. I do not read the Proponent’s evidence that way. The Proponent’s affiant was quite clear that it is the current potential delay that could cost the Proponent five million dollars monthly, and that the Proponent is currently on track to meet its deadline.
[39] Like the Proponent, the City also submits that the balance of convenience favours the Respondents. The City notes that it is balancing the public interest of not only the community that includes the Applicants, but the greater region that is in need of the BESS. There is also the public interest in ensuring legislative bodies, who have passed presumptively valid legislation, are able to function effectively.
[40] The City relies on comments made by the Supreme Court of Canada, albeit not in the context of a stay motion, in Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 19:The case law suggests that review of municipal bylaws must reflect the broad discretion provincial legislators have traditionally accorded to municipalities engaged in delegated legislation. Municipal councillors passing bylaws fulfill a task that affects their community as a whole and is legislative rather than adjudicative in nature. Bylaws are not quasi-judicial decisions. Rather, they involve an array of social, economic, political and other non-legal considerations. “Municipal governments are democratic institutions”, per LeBel J. for the majority in Pacific National Investments Ltd. v. Victoria (City), 2000 SCC 64, [2000] 2 S.C.R. 919, at para. 33. In this context, reasonableness means courts must respect the responsibility of elected representatives to serve the people who elected them and to whom they are ultimately accountable. [41] The following comments from Aware, at para. 84 are apt here:A further considerable inconvenience is argued by the County that an injunction granted in circumstances of a procedural mistake to the Applicant with no interest in the property, no evidence or special expertise in the significance of the trees, no irreparable damage to any legal interest, would compromise the County in exercising its authority under The Municipal Act ... [42] I have noted above the deferential posture the courts will take when reviewing bylaws passed by a democratically elected body, absent illegality. I have found the Applicant does not have a frivolous and vexatious case, but I have noted the high bar the Applicant will have to meet to have a chance of success. In weighing the matter, I find the balance of convenience favours the Proponent and the City. The interim inconvenience to those bodies outweighs the interim inconvenience to the Applicant. . Value Assets Inc. v. Downtown Brampton Development Corporation et al.
In Value Assets Inc. v. Downtown Brampton Development Corporation et al. (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a motion for an interim "injunction that would stop the enforcement or applicability" of a by-law - this within a JR proceeding seeking the quashing of the by-law, a restraining order and damages.
The court considers the 'irreparable harm' element of the RJR interlocutory injunction test, here for municipalities defending a bylaw:Balancing of Harms Test Favours the City
[54] When an injunction is sought to restrain the enforcement of a by-law, there are special considerations because the law presumes that staying enforcement of a law will harm the public interest. Courts are reluctant to enjoin a government from enforcing the law: Temagami, at paras. 28-29.
[55] The Supreme Court has held that the onus for a public authority to prove “irreparable harm to the public interest is less than that of a private applicant” and that 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: RJR-MacDonald, at pp. 346.
[56] There is thus a presumption of harm if the City’s new by-law is stayed.
[57] City Council is a democratically elected body that has exercised its discretion to enact new policies for the regulation of mobile businesses. Staying the revised by-law would do much more than simply permit Value Assets to continue to lease its property to Class C Refreshment Vehicles. It would also remove the new fire safety regulations, eliminate the requirement that Refreshment Vehicles obtain approval for the area in which they will operate, remove the prohibition on selling cannabis and remove peddlers of goods from the regulatory scheme entirely. In addition, there is harm to nearby restaurants that can lose business as a result of the operations of Class C Refreshment Vehicles within 50 metres.
[58] I find that those harms significantly outweigh the potential, unquantified loss of rental income to the applicant that might be incurred prior to the determination of this application. Moreover, a party seeking an interlocutory injunction is required to give an undertaking as to damages in the event the injunction is later found to have been unwarranted. Value Assets offers no undertaking to the City or the BIA for damages. . Canada (Attorney General) v. Responsible Plastic Use Coalition
In Canada (Attorney General) v. Responsible Plastic Use Coalition (Fed CA, 2023) the Federal Court of Appeal considered a motion for stay pending appeal, here seeking an extension to 60 days after the appeal was resolved.
In these quotes the court considers the weighing of the RJR-MacDonald test factors where the effect of the decision is to "suspend legislation, regulations or other promulgations" (ie. the 'public interest'):[18] The case law recognizes that, where the grant or refusal of a stay would suspend legislation, regulations or other promulgations, the public interest is engaged and is considered as part of both the second and third criteria for the issuance of a stay: RJR MacDonald at 348; Canadian Council for Refugees at para. 24.
[19] The public interest, moreover, is to be widely-construed. As noted by the Supreme Court of Canada at page 346 of RJR MacDonald, in the context of a request to stay the effect of legislation that was alleged to violate the Charter:... the concept of inconvenience should be widely construed in Charter cases. In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant. This is partly a function of the nature of the public authority and partly a function of the action sought to be enjoined. 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.
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.
[Emphasis added.] [20] Contrary to what the respondents assert, these principles have been applied to stay cases outside the Charter context. For example, the Quebec Court of Appeal, in a division of powers case, refused a stay where the effect of granting it would have been to suspend legislation in Québec (Procureur général) c. Canada (Procureur général), 2013 QCCA 1263 at para. 50.
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[28] Given the number of parties impacted by the Single-use Regulations, the recent coming into force of many of the prohibitions in them, and the case law that favours the grant of a stay pending appeal in circumstances where legislation, regulations, or other promulgation would be rendered inoperative, I find that the second and third steps of the test for the grant of a stay are met in this case. In short, if the stay were refused, irreparable harm would be done to the orderly roll-out of the Single-use Regulations and considerable confusion would arise for the many businesses that have moved to comply with their provisions. This would not be in the public interest, which has been found by binding case law to exist when there is some indication that the impugned legislation, regulation, or activity was undertaken by a body charged with acting in the public interest. The Governor in Council, who promulgated the Order, is the highest federal executive authority and is charged with so acting.
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