Mar 2, 2016

This decision deals with the role of the Court when it has been presented with an application to stay an order of a Board, as well as an application to seek permission to appeal the Board's decision.

Facts: Lafarge was issued a stop order on June 12, 2015, and that order was later confirmed in a decision by the Lac Ste Anne (County) Subdivision Development and Appeal Board. Lafarge now makes an application to stay the stop order.

On a separate note, Lafarge also has a pending application seeking permission to appeal the Board’s decision.

Analysis: In considering whether to grant a stay, the Court must consider the three part test. This test includes examining whether there is a substantial question sufficient to justify issuance of the stay, whether there would be irreparable harm in issuing the stay, and whether there is a balance of convenience that shifts in favour of maintaining the order. In situations such as these, however, the test is difficult to apply because it involves operations of government, rather than activities between private litigants.

The first part of the test is very similar to that which the Court must consider when determining whether to grant permission to appeal. As such, the Court in this case was placed in the position where it must determine not only the purpose of the motion presented, but also whether or not there is a viable argument that is sufficient to consider granting permission to appeal. For the purposes of determining preliminary issues such as this one, the test of "reasonable prospect of success" is to be used.

In this case, however, the Court was not entirely clear that the questions raised by Lafarge were fundamentally founded in questions of law or jurisdiction. The Board’s decision, rather, was substantively based on fact finding and quasi fact finding that normally attracts a review based on reasonableness. The Court, therefore, was not satisfied that a stay could be justified at this time, but did note that if permission to appeal was granted by another judge of the Court, then Lafarge should be permitted to ask for a stay at that time.

Conclusion: When a party is seeking a stay of a Board’s order, the Court must be satisfied that there is a substantial question sufficient to justify issuance of the stay. When this application is sought in conjunction with a pending application for permission to appeal, the Court must, in essence, also determine whether there is a reasonable prospect of success within the party’s argument for appeal.