Date: 19981123
Docket: A-550-98
CORAM: THE CHIEF JUSTICE
BETWEEN:
MINISTER OF FISHERIES AND OCEANS, and
DIRECTOR, MARINE PROGRAMS, CANADIAN COAST GUARD
Appellants
(Respondents)
- and -
THE FRIENDS OF THE WEST COUNTRY ASSOCIATION
Respondent
| (Applicant) |
Heard at Ottawa, Ontario on Friday, November 13, 1998.
Order delivered at Ottawa, Ontario on Monday, November 23, 1998.
REASONS FOR ORDER BY: THE CHIEF JUSTICE
Date: 19981123
Docket: A-550-98
CORAM: THE CHIEF JUSTICE
BETWEEN:
MINISTER OF FISHERIES AND OCEANS, and
DIRECTOR, MARINE PROGRAMS, CANADIAN COAST GUARD
Appellants
(Respondents)
- and -
THE FRIENDS OF THE WEST COUNTRY ASSOCIATION
Respondent
| (Applicant) |
REASONS FOR ORDER
THE CHIEF JUSTICE
[1] The appellants bring this motion for an order, inter alia, staying the order made by the Trial Division of the Court on 7 July, 1998, in application T-1893-96.
[2] The order in appeal reads:
| IT IS ORDERED that: |
| This application for judicial review is allowed. The approvals under subsections 5(1) of the Navigable Waters Protection Act in respect of which judicial review is sought are set aside and, together with the related essential statutory preliminary steps under the Canadian Environmental Assessment Act, are referred back to the Minister of Fisheries and Oceans or other appropriate Minister for reconsideration and, if appropriate, for redetermination in a manner consistent with those Acts and reasons for this Order. |
[3] Both in their written submissions and in oral argument, counsel for the parties agree that the principles governing the disposition of this motion are laid down by the Supreme Court of Canada in R.J.R. MacDonald Inc. v. Canada (Attorney General) [1994] 1 S.C.R. 311, where Cory and Sopinka, in delivering the reasons of a unanimous Court, stated at page 400:
| Metropolitan Stores adopted a three-stage test for courts to apply when considering an application for either a stay or an interlocutory injunction. First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, 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. It may be helpful to consider each aspect of the test and then apply it to the facts presented in this case. |
[4] It is clear from R.J.R. MacDonald that the appellants have the onus of proof of each element of the test laid down in that case.
[5] Although the appellants led evidence to prove each element of the test, I am of the opinion that this evidence falls short of showing to the requisite degree that the appellants will suffer irreparable harm as explained in R.J.R. MacDonald at page 405-415.
[6] In light of the conclusion I have reached in the paragraph immediately preceding, I need not express any opinion as to whether the appellants have proved the other two elements of the test. Since the onus on the appellants extends to each element of the test, a failure to prove any one of them is fatal to the success of the motion. Accordingly I would dismiss this motion for stay with costs to the successful party on the appeal.
"Julius A. Isaac"
C.J.