The application led the court to grapple with the following two issues: (1) whether it had jurisdiction to grant the injunction; and (if it had such jurisdiction) (2) whether the applicant met the three-stage test for a pre-trial injunction set out in RJR-MacDonald Inc. v Canada (Attorney General), 1994 CanLII 117, [1994] 1 SCR 311(SCC).

Jurisdiction to grant an injunction

On the jurisdictional issue, the court found that, despite Jewish National Fund of Canada Inc. v Minister of National Revenue, 2025 FCA 110, the Federal Court of Appeal didn’t have exclusive jurisdiction over this matter, which meant the BC Supreme Court did have concurrent jurisdiction:

[44]      With respect, I disagree [with Jewish National Fund]. Subparagraph 168(2)(b) of the [Income Tax] Act sets out that the FCA may extend the period during which a notice of revocation cannot be published when issuance of a notice has been appealed. However, this section of the Act does not contain “clear and explicit statutory wording” to the effect that exclusive jurisdiction to delay publication is vested in the FCA in all circumstances, for example, where the decision to revoke a charity’s registration is to be challenged in the superior court as ultra vires the Federal government.

[45]      Given that it is the intention of the Charity to challenge the validity of the Act, as opposed to an assessment of taxes, I am satisfied that I have jurisdiction to decide whether it is appropriate to grant an injunction to stay publication of the Notice. See Myers [v Canada (Attorney General), 2022 BCCA 160] at para. 43.

Elements of the RJR-MacDonald test

On the second issue, the court summarized the test from RJR-MacDonald as follows:

The party seeking an interlocutory injunction must establish that:

1.   there is a serious issue to be tried;

2.   irreparable harm would result if the injunction is not granted; and

3.   the balance of convenience, considering all of the circumstances, favours granting the injunction.

The minister of national revenue acknowledged that the charity met the first element.

On the second element, the court noted that it was significant that the applicant was a charity: “It is usually the harm suffered by the applicant that must be considered, although this principle is modified, at least in respect of those dependent on a charity: Glooscap Heritage Society v. Canada (National Revenue), 2012 FCA 255”. Taking this point into account, the court found that, on balance, the charity had met the second element of the test:

[60]      However, I am satisfied based on the evidentiary record before me, that there is clear evidence that proves on a balance of probabilities that deregistration of the Charity will cause irreparable harm to donees, beyond those associated to the “ordinary consequences” of losing registered charity status.

[61]      I am, furthermore, satisfied that publication of the Notice will irreparably harm the reputation of directors and senior management of the Charity.

On the third element, the court noted that it “must consider potential impacts not only to the Charity, but also to the public interest”. The court found, nevertheless, that the balance of convenience favoured the charity:

[74]      On the evidence presented, I cannot conclude that there is presently any ongoing risk to the public interest.

[75]      I am satisfied that the balance of convenience favours the granting of an interlocutory injunction for a short period of time to permit the Charity to file its petition. It is clear that the Charity will suffer greater harm from refusing an injunction than the public interest will be harmed by the granting of an injunction.

[76]      Once the petition is filed, the Charity can apply to extend the injunction. At that time, the balance of competing interests can occur with full knowledge of the seriousness of the issue to be tried, as well as a timeline for the hearing of the petition.

Concluding remarks

In its concluding remarks, the court noted that it was

guided by the words of Justice Groberman in Snuneymuxw [First Nation et al. v R., 2004 BCSC 205]:

[72]      The jurisdiction of the court, in appropriate cases, to interfere in legislative and executive decisions that are under challenge should not be too hastily exercised. The courts have a supervisory role to play, and should be wary of usurping legislative and executive roles and effectively governing by interlocutory order.

[73]      In the case at bar, the injunction that I have indicated I will grant is a very limited one. It does not seriously interfere with governance.

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