Judgments

Decision Information

Decision Content

A-148-81
Grand Council of the Crees (of Quebec), the Cree Regional Authority, the Cree Board of Health and Social Services of James Bay, the Cree Bands of Fort George, Old Factory, Eastmain, Rupert House, Waswanipi, Mistassini, Nemaska and Great Whale River, Chief Sam Tapiatic, Chief Walter Hughboy, Chief Edward Gilpin Jr., Chief Samuel Shecapio, Chief Billy Ottereyes, Chief Henry Mianscum, Chief George Wapachee, Chief Robbie Dick, Grand Chief Billy Diamond, Andrew Moar, Executive Chief Philip Awashish, Steven Bearskin, Abel Kitchen, Albert Diamond, Violet Pachanos, Robert Kanatewat and James Bobbish (Appellants)
v.
The Queen, the Honourable John Munro and the Honourable Monique Bégin (Respondents)
Court of Appeal, Pratte and Heald JJ. and Lalande D.J.—Montreal, June 3, 1981.
Prerogative writs — Interlocutory injunction — Appeal from decision of Trial Division dismissing an application for interlocutory injunction against the respondents — Trial Judge held that he had no power to issue an injunction against the Crown — Trial Judge also refused to issue injunction against the two respondent Ministers since the duties that the appellants want performed are "duties of a general adminis trative nature for which they are responsible to the Crown" — Whether Crown is subject to injunctive relief — Whether a Minister of the Crown, acting as a servant of the Crown, is subject to a mandatory order — Appeal dismissed — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 2, 17(1), 18, 44.
Société Asbestos Ltée v. Société nationale de l'Amiante [1979] C.A. (Que.) 342, referred to. The Minister of Finance of British Columbia v. The King [1935] S.C.R. 278, followed.
APPEAL. COUNSEL:
J. O'Reilly and R. Pratt for appellants. James Mabbutt for respondents.
SOLICITORS:
O'Reilly & Grodinsky, Montreal, for appel lants.
Deputy Attorney General of Canada for respondents.
The following are the reasons for judgment delivered orally in English by
PRATTE J.: This is an appeal from a judgment of Mr. Justice Marceau of the Trial Division dismissing an application for an interlocutory injunction against the respondents.
Mr. Justice Marceau's judgment was based on the view that he did not have the power to issue an injunction against the Crown and that this was not a case where an injunction should issue against Ministers of the Crown since the duties that the applicants wish the respondent Ministers to per form are "duties of a general administrative nature for which they are responsible to the Crown not to the applicants".
Counsel for the appellants first argued that the immunity of the Crown from injunctive relief is no longer as absolute as assumed by the judgment under attack. He said that the traditional rule has been recently modified by judicial precedents and, as an example of that evolution, he referred us to the decision of the Çourt of Appeal of Quebec in Société Asbestos Ltée v. Société nationale de l'Amiante [ 1979] C.A. 342, where that Court issued an injunction against the Crown in right of the Province of Quebec. He also said that the traditional rule has been modified by the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, par ticularly by subsection 17(1), when it is read with the definition of the expression "relief' in section 2, and by sections 18 and 44.
Those contentions must, in my view, be rejected. The decision of the Quebec Court of Appeal in the case Société Asbestos Ltée is merely an authority for the proposition that an injunction may issue against the Crown in right of a province when this is necessary in order to avoid that effect be given by the authorities of that province to unconstitu tional legislation. This proposition has no applica tion here.
In so far as the various provisions of the Federal Court Act are concerned, they do not, in my view, have the effect of abridging the traditional immunity of the Crown from injunctive relief. If Parliament had wanted to modify or repeal such a well-established principle, much clearer language would have been used.
I am therefore of opinion that Mr. Justice Mar- ceau was right in dismissing the appellants' application in so far as it was directed against the Crown.
I also think that he was right in refusing to issue an injunction against the two respondent Minis ters. Contrary to what was argued by counsel for the appellants, the Federal Court Act did not, in my view, repeal the traditional rule, clearly stated in the decision of the Supreme Court of Canada in The Minister of Finance of British Columbia v. The King [1935] S.C.R. 278, that a mandatory order cannot be issued against a Minister of the Crown when he is simply acting as a servant of the Crown rather than as an agent of the legislature for the performance of a specific duty imposed on him by a statute for the benefit of some designated third person. Contrary to another argument put forward on behalf of the appellants, I am also of the view that the duties invoked by the appellants as a basis for their application, assuming them to exist, are duties that the respondent Ministers would have in their capacity as Ministers and servants of the Crown; those duties are not specific duties imposed by statute.
For those reasons, I would dismiss the appeal with costs.
* * *
HEALD J. concurred.
* * *
LALANDE D.J. concurred.
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.