RJR — MacDonald Inc. v. Canada (Attorney General)

RJR — MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311, 1994 CanLII 117 (SCC)


• Tobacco companies sought suspension of legislation forcing them to place warning signs on cigarette packaging pending constitutional challenge of the legislation

• The three part American Cyanamid test (adopted in Canada in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd.) should be applied to applications for interlocutory injunctions and as well for stays in both private law and Charter cases.

• Found serious Charter issue was at play, and found irreparable harm because it would be very difficult to sue the government for damages if the legislation was eventually found to be unconstitutional
• However, the balance of convenience lied with the government. Government claims the legislation is in the public interest and it is presumed to be in public interest. Companies can offset financial hardship by passing on the costs to smokers.

• At the first stage, an applicant for interlocutory relief in a Charter case must demonstrate a serious question to be tried. Whether the test has been satisfied should be determined by a motions judge on the basis of common sense and an extremely limited review of the case on the merits. The fact that an appellate court has granted leave in the main action is, of course, a relevant and weighty consideration, as is any judgment on the merits which has been rendered, although neither is necessarily conclusive of the matter. A motions court should only go beyond a preliminary investigation into the merits when the result of the interlocutory motion will in effect amount to a final determination of the action, or when the constitutionality of a challenged statute can be determined as a pure question of law. Instances of this sort will be exceedingly rare. Unless the case on the merits is frivolous or vexatious, or the constitutionality of the statute is a pure question of law, a judge on a motion for relief must, as a general rule, consider the second and third stages of the Metropolitan Stores test.

• At the second stage the applicant is required to demonstrate that irreparable harm will result if the relief is not granted. `Irreparable’ refers to the nature of the harm rather than its magnitude. In Charter cases, even quantifiable financial loss relied upon by an applicant may be considered irreparable harm so long as it is unclear that such loss could be recovered at the time of a decision on the merits.

• The third branch of the test, requiring an assessment of the balance of inconvenience to the parties, will normally determine the result in applications involving Charter rights. A consideration of the public interest must be taken into account in assessing the inconvenience which it is alleged will be suffered by both parties. These public interest considerations will carry less weight in exemption cases than in suspension cases. When the nature and declared purpose of legislation is to promote the public interest, a motions court should not be concerned whether the legislation has in fact this effect. It must be assumed to do so. In order to overcome the assumed benefit to the public interest arising from the continued application of the legislation, the applicant who relies on the public interest must demonstrate that the suspension of the legislation would itself provide a public benefit.

• See the Said (1999 FCA) case below, applying RJR Macdonald’s discussion of “exemptions” and “suspensions” to stays of removal

Note that the Court in RJR Macdonald also said public interest considerations will weigh more heavily in a “suspension” case than in an “exemption” case. The reason for this is that the public interest is much less affected when a discrete and limited number of applicants are exempted from the application of certain provisions of a law than when the application of the law is suspended entirely.

We are not dealing here with suspension of or exemption from the law. But the rationale is applicable to the Appellant’s motion for a stay since this Court’s decision will apply only to him. In my view, the balance of convenience favours the Appellant.