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Injunctions - RJR - 'Public Interest'. 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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