Judgments

Decision Information

Decision Content

A-1195-82
Robert James Finlay (Appellant) (Plaintiff) v.
Minister of Finance of Canada, Minister of Na tional Health and Welfare of Canada and Attor ney General of Canada (Respondents) (Defend- ants)
Court of Appeal, Thurlow C.J., Heald J. and Lalande D.J.—Winnipeg, January 12; Ottawa, April 25, 1983.
Practice — Parties Standing — Canada Assistance Plan
— Plaintiff recipient of allowances under Manitoba Social Allowances Act — Claims to be "person in need" pursuant to s. 2 of Plan, thereby having special interest in proper adminis tration of Plan — Seeking declaration that payment of contri butions by Canada to Manitoba under Plan illegal on ground Manitoba legislation not providing for standard of social assistance required by Plan and Agreement made thereunder
— Statement of claim struck for lack of standing and reason able cause of action — Issue of unlawful payments proper subject-matter for declaration — Issue arising per se, not flowing from outcome of challenge to legislation — Standing matter of Court discretion, to be restricted to cases raising
justiciable issues of public interest Issue as to legality of payments of interest to appellant, to beneficiaries of Plan and to public in general — Appeal allowed — Statement of claim restored — Canada Assistance Plan, R.S.C. 1970, c. C-1, ss.
2, 4, 6(2), 7(1), 9(1)(g), 19 The Social Allowances Act, R.S.M. 1970, c. S160, ss. 9(1)(e), 11(5)(b), 20(3) (added by S.M. 1980, c. 37, s. 10) — Municipal Act, S.M. 1970, c. 100, s. 444 — Federal Court Rules, C.R.C., c. 663, R. 419(1).
Public health and welfare — Canada Assistance Plan Plaintiff recipient of allowances under Manitoba Social Allowances Act — Seeking declaration payment of contribu tions by Canada to Manitoba pursuant to Plan illegal on ground Manitoba legislation not providing for standard of social assistance required by Plan and Agreement made there- under Plaintiff also seeking injunction enjoining Minister of National Health and Welfare from making payments — Statement of claim struck for lack of standing and reasonable cause of action — Injunction refused Appeal — No urgency demanding immediate restraint — Standing matter of Court discretion — Restricted to cases raising issues of public inter est — Issue as to legality of payments of interest to appellant, to other beneficiaries of Plan and to public in general — Issue proper subject-matter for declaration — Dismissal of injunc tion maintained, statement of claim restored — Canada Assistance Plan, R.S.C. 1970, c. C-1, ss. 2, 4, 6(2), 7(1), 9(1)(g), 19 — The Social Allowances Act, R.S.M. 1970, c.
S160, ss. 9(1)(e), 11(5)(b), 20(3) (added by S.M. 1980, c. 37, s. 10) — Municipal Act, S.M. 1970, c. 100, s. 444.
Judicial review — Equitable remedies — Injunctions — Plaintiff recipient of allowances under Manitoba Social Allowances Act — Seeking declaration payment of contribu tions by Canada to Manitoba under Canada Assistance Plan illegal on ground Manitoba legislation not providing for standard of social assistance required by Plan and Agreement made thereunder — Appeals from dismissal of originating notice of motion and of application for interim injunction enjoining Minister of National Health and Welfare from making payments — Summary proceeding by originating notice of motion not proper way to raise issues for determina tion — No urgency demanding immediate restraint — Situa tion having prevailed for some time — Appeals dismissed — Canada Assistance Plan, R.S.C. 1970, c. C-1, ss. 2, 4, 6(2), 7(1), 9(1)(g). 19 — The Social Allowances Act, R.S.M. 1970, c. S160, ss. 9(1)(e), 11(5)(b), 20(3) (added by S.M. 1980, c. 37, s. 10) — Municipal Act, S.M. 1970, c. 100, s. 444.
The appellant is a resident of Manitoba. His sole source of support are the allowances he receives under The Social Allowances Act of Manitoba. Accordingly, he claims to be a "person in need" pursuant to section 2 of the Canada Assist ance Plan and therefore asserts a special interest in the proper administration of the Plan and of the Canada-Manitoba Agree ment made thereunder. The plaintiff brought an originating notice of motion for injunction enjoining the Minister of Finance from making and authorizing the payment of contribu tions to the Province of Manitoba under subsection 7(1) of the Plan. By statement of claim, he sought a declaration that payments made from the Consolidated Revenue Fund of Canada to Manitoba are made illegally because the Manitoba social assistance legislation does not provide the standard of social assistance to poor persons required by the Plan and the Agreement. The plaintiff also sought a declaration that the funds paid to Manitoba constitute an overpayment within the meaning of the Plan and applied for an interim injunction.
This is an appeal against the judgment of the Trial Division which dismissed the application for an interim injunction and struck out the statement of claim for lack of standing in law and failure to disclose a reasonable cause of action. The appellant also appeals (A-1187-82) the dismissal of his origi nating notice of motion.
Held (Heald J. dissenting in part), the statement of claim is restored and the appeals from the dismissal of the application for interim injunction and of the originating motion for injunc tion are dismissed.
Per Thurlow C.J.: In so far as the injunction is concerned, a summary proceeding by way of originating notice of motion is
not the proper way to raise for determination the kind of issues at bar. As the situation disclosed has prevailed for some years, there is no urgency demanding immediate restraint and the issues can be more conveniently identified and determined in the other proceeding brought by the appellant. With respect to the appeal against the refusal of an interim injunction, the case is not one in which such interlocutory relief should be granted.
The fact that the allegations contained in the statement of claim could conceivably raise a problem for determination between Canada and a province has been recognized by the Supreme Court of Canada in LeBlanc et al. v. The City of Transcona. The plaintiff's claim is asserted against the federal authorities charged with the administration according to law of a federal statute which authorizes, under specified circum stances, the payment of money from the Consolidated Revenue Fund of Canada. If payments are indeed being made unlawful ly then there is an appropriate subject-matter for a declaration to that effect. In the case at bar, the issue of an illegal expenditure arises per se; it does not arise from the outcome of challenge to legislation. The case, accordingly, appears stronger than the Thorson and Borowski decisions of the Supreme Court of Canada where the alleged illegality of the expenditure of public funds was a mere consequence flowing from the statutory provisions being held ultra vires or inoperative. What is at stake is the right of the citizens of Canada to have the Consolidated Revenue Fund applied in accordance with the law: this issue is an apt one for decision by a court.
With respect to the issue of standing, the appellant, as a person in need, is obviously one of the class of persons whom Parliament intended to be benefited by the Canada Assistance Plan. The appellant's interest in having the matter determined is at least as strong as that of the respondent in Borowski whereby the latter was found to have met the test for determi nation of standing, i.e. evidence of being directly affected by legislation and absence of other reasonable and effective manner in which the issue could be brought before the Court. The fact that the appellant cannot claim to be a taxpayer is not decisive against him. It can be seen from the decisions of the Supreme Court in Thorson, McNeil and Borowski that the according of status to bring an action for declaratory relief in such situations is within the discretion of the Court. That discretion is to be exercised sparingly and to be restricted to cases which raise justiciable issues important in the public interest to have resolved. The issue at bar—the legality of payments under the Canada-Manitoba Agreement—is one of sufficient importance to the appellant, the class of persons intended to have the benefit of the Plan and to the public in general, to allow the appellant to raise it.
Per Lalande D.J.: There is no doubt that the question submitted to the Court is one of public interest and that the appellant has a genuine special interest. Also, there seems to be no reasonable and effective manner other than an action for a declaration in which the issue submitted may be brought before the Court. Until a careful examination of the provisions of the Plan and of the Agreement with Manitoba has been done, it is not possible to say that the appellant's position is unarguable or patently unsustainable.
Per Heald J. (dissenting in part): The appeal dealing with the statement of claim and the issue of standing should be dismissed. It is clear from the scheme of the Plan that when the Minister of National Health and Welfare gives his certificate authorizing the payment of contributions and when he performs any other duties imposed on him pursuant to that Plan, he is performing those duties as an agent representing the Crown and not as a designated person. Furthermore, there is nothing in the Plan which imposes on the Minister a legal duty towards any individual. The duty imposed on the Minister is one owing to Canada and requires him to decide an administrative ques tion each time he issues a certificate, i.e. whether the province has complied with all the requisites necessary to receive the particular payment. No rights accrue to the appellant from the Plan. Any right to assistance which he may have must be found within the provisions of the Manitoba Social Allowances Act. The appellant has pursued his appeal rights under that statute, albeit unsuccessfully.
With respect to the appellant's standing, the Thorson, McNeil and Borowski decisions cannot apply here. The test enunciated in those decisions is as follows: the status is to be accorded only in actions where a declaration of invalidity is sought in respect of certain legislation. In the case at bar, the appellant is not challenging the validity of the Plan: it is the administration of the federal statute which he seeks to impugn. Therefore, the case is not one which is covered by the rationale of either Thorson, McNeil or Borowski. It follows that the general rule set out by Laskin C.J. in the Borowski case applies, namely that it is not open to a citizen and/or taxpayer "to invoke the jurisdiction of a competent court to obtain ,a ruling on the interpretation or application of legislation, or on its validity, when that person is not either directly affected by the legislation or is not threatened by sanctions for an alleged violation of the legislation". Since no rights accrue to the appellant from the Plan, and since the Plan is not a penal statute, the appellant does not have any status.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Macllreith v. Hart et al. (1907), 39 S.C.R. 657.
DISTINGUISHED:
Rothmans of Pall Mall Canada Limited et al. v. Minis ter of National Revenue et al. [No. l], [1976] 2 F.C. 500 (C.A.), affirming [1976] 1 F.C. 314 (T.D.).
CONSIDERED:
LeBlanc et al. v. The City of Transcona, [1974] S.C.R. 1261; Paterson v. Bowes (1853), 4 Gr. 170 (Ch.); The Minister of Justice of Canada et al. v. Borowski, [1981] 2 S.C.R. 575; 39 N.R. 331; Thorson v. The Attorney General of Canada, et al., [1975] 1 S.C.R. 138; The Nova Scotia Board of Censors et al. v. McNeil, [1976] 2 S.C.R. 265; (1975), 5 N.R. 43; Finlay and Director of Welfare (Winnipeg South/West) (1976), 71 D.L.R. (3d) 597 (Man. C.A.); Beattie and The Director of Social Services (Winnipeg South/West) (judgment dated May 15, 1978, Man. C.A., not reported).
REFERRED TO:
Re Lofstrom and Murphy et al. (1971), 22 D.L.R. (3d) 120 (Sask. C.A.); Smith v. The Attorney General of Ontario, [1924] S.C.R. 331; Solosky v. Her Majesty The Queen, [1980] 1 S.C.R. 821; Carota v. Jamieson et al., [1977] 1 F.C. 19 (T.D.); [1977] 2 F.C. 239 (C.A.), affirming [1977] 1 F.C. 504 (T.D.); Regina v. Minister of Natural Resources of Saskatchewan, [1973] 1 W.W.R. 193 (Sask. C.A.); The Queen v. The Lords Commissioners of the Treasury (1872), 7 Q.B. 387; The Queen v. The Secretary of State for War, [1891] 2 Q.B. 326 (C.A.).
COUNSEL:
G. Patrick S. Riley for appellant (plaintiff). Harry Glinter for respondents (defendants).
SOLICITORS:
G. Patrick S. Riley, Winnipeg, for appellant (plaintiff).
Deputy Attorney General of Canada for respondents (defendants).
The following are the reasons for judgment rendered in English by
THURLOW C.J.: The appellant brought two pro ceedings in the Trial Division, the first by an originating notice of motion, the second by a state ment of claim. Both proceedings raised the same subject-matter.
The originating motion named the Minister of Finance of Canada and the Minister of National Health and Welfare of Canada as respondents and asked for an injunction enjoining the Minister of Finance from making any further payments of contributions to the Province of Manitoba and the Minister of National Health and Welfare from making certificates authorizing such payments, both pursuant to their powers under the Canada Assistance Plan [R.S.C. 1970, c. C-1], so long as:
1. the Social Allowances Act, R.S.M., cap. S160 continues to authorize, in subsection 20(3) thereof and elsewhere, the reduc tion of social allowances below the level of present basic requirements of life in order to collect alleged debts;
2. ... all assistance payments by Manitoba municipalities remain legally a loan and not a gift, as specified by section 444 of the Municipal Act, S.M. 1970, c. 100;
3. ... Manitoba permits its municipalities to establish their own levels of assistance independently of the provincial author ity as currently permitted by subsection 11(5)(b) of the Social Allowances Act.
The application was supported by an affidavit of the appellant setting out the basis of his claim for the relief sought. It was opposed by the Attorney General of Canada who brought a counter-motion seeking a variety of orders including one striking out the originating notice of motion. When the matter came on for hearing, the appellant's application was refused without costs. No written reasons were filed. Nor was any order made on the respondents' application. The appellant thereupon appealed.
Assuming for the moment that injunction would be an appropriate form of relief in the situation appearing from the appellant's affidavit, I am of the view that a summary proceeding by way of an originating notice of motion supported by an affidavit is not a suitable way to raise for determi nation the kind of issues appearing from the record and that the relief sought should be refused on the grounds that as the situation disclosed has pre vailed for some years no urgency demanding immediate restraint of the respondents is apparent from the record and the issues can be more con veniently identified and determined in the other proceeding which the appellant has brought. I would accordingly affirm the refusal of an injunc tion on the originating application.
The proceeding by statement of claim, in addi tion to claiming an injunction, claims a declaration that the payments and certificates by the Ministers are illegal and a declaration that the payments made to Manitoba are overpayments. It names the same two Ministers and the Attorney General of Canada as defendants. On filing the statement of claim the appellant brought an application for an interim injunction and a motion for special direc tions. The defendants' response was to bring a motion to strike out the statement of claim on the grounds that:
(a) the appellant did not have the requisite standing in law to maintain his action ' and
(b) in the alternative that if the appellant had the requisite standing to maintain the action the statement of claim did not disclose any reason able ground for obtaining the relief sought in that, inter alia, the statement of claim does not disclose any cause of action against the defend ant Ministers of the Crown.
The learned Trial Judge refused the injunction and on the respondents' application struck out the statement of claim on both grounds. The appellant appealed.
In so far as the appeal is against the refusal of an interim injunction I am of the opinion that the case is not one in which such interlocutory relief should be granted and that the appeal from such refusal fails.
That leaves for consideration the questions whether the appellant has standing to bring the action and whether the statement of claim dis closed a reasonable cause of action for declaratory relief. As the result of the latter issue bears on the question of standing, I shall deal with it first.
An order striking out a statement of claim on the ground that it discloses no reasonable cause of action should not be made unless it is clear that the action as framed is unsustainable and that by no allowable amendment could the subject-matter referred to in it be made to state a reasonable cause of action. On a motion for such an order the allegations of the statement of claim must be taken to be true.
I put that feature of the situation in the fore front of my reasons. In the present case the state ment of claim included allegations that payments
' No attention appears to have been paid to the comment of Collier J., in Carota v. Jamieson et al., [1977] 1 F.C. 19 (T.D.), at p. 25:
I am of the view, in the circumstances here, that the plaintiff has standing to bring this action. In any event, that is a question which should not be determined on a procedural preliminary motion of this kind. It should be the subject of full evidence, argument and deliberation at trial. At the very least it should be the subject of a formal hearing on a point of law, after all relevant facts for determination of that point have been established.
made and being made from the Consolidated Revenue Fund of Canada to the Province of Manitoba are made illegally or without statutory authority because the Manitoba social assistance legislation does not provide for and the Province of Manitoba does not provide the standard of social assistance to poor persons, of whom the appellant is one, that is required by the Canada Assistance Plan and by the Agreement between Canada and Manitoba made under the authority of that statute.
That such allegations could conceivably raise a problem for determination between Canada and a province was, I think, recognized by Spence J., when he said in the course of his reasons in LeBlanc et al. v. The City of Transcona: 2
It may be argued that the Province of Manitoba when paying a proportion of the municipal assistance paid out by the City of Transcona is not providing for persons in need in accordance with that requirement in the Canada Assistance Plan in that the schedule applied is not a schedule made by the province. That, in my view, is a matter which must be settled between the Province of Manitoba and Canada and can have no application to an appeal by the present appellant against the refusal of the City of Transcona to grant him a municipal allowance.
The Canada Assistance Plana begins with the following recital:
WHEREAS the Parliament of Canada, recognizing that the provision of adequate assistance to and in respect of persons in need and the prevention and removal of the causes of poverty and dependence on public assistance are the concern of all Canadians, is desirous of encouraging the further development and extension of assistance and welfare services programs throughout Canada by sharing more fully with the provinces in the cost thereof; Therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
The following provisions of the Act are relevant:
2. In this Act
"assistance" means aid in any form to or in respect of persons in need for the purpose of providing or providing for all or any of the following:
2 [1974] S.C.R. 1261, at p. 1268.
3 R.S.C. 1970, c. C-1.
(a) food, shelter, clothing, fuel, utilities, household supplies and personal requirements (hereinafter referred to as "basic requirements"),
"person in need" means
(a) a person who, by reason of inability to obtain employ ment, loss of the principal family provider, illness, disability, age or other cause of any kind acceptable to the provincial authority, is found to be unable (on the basis of a test established by the provincial authority that takes into account that person's budgetary requirements and the income and resources available to him to meet such require ments) to provide adequately for himself, or for himself and his dependants or any of them ....
4. Subject to this Act, the Minister may, with the approval of the Governor in Council, enter into an agreement with any province to provide for the payment by Canada to the province of contributions in respect of the cost to the province and to municipalities in the province of
(a) assistance provided by or at the request of provincially approved agencies, and
(b) welfare services provided in the province by provincially approved agencies,
pursuant to the provincial law.
6....
(2) An agreement shall provide that the province
(a) will provide financial aid or other assistance to or in respect of any person in the province who is a person in need described in paragraph (a) of the definition "person in need" in section 2, in an amount or manner that takes into account his basic requirements;
(b) will, in determining whether a person is a person described in paragraph (a) and the assistance to be provided to such person, take into account such person's budgetary requirements and the income and resources available to him to meet them;
It is, of course, clear that the appellant's allega tions do not purport to raise and do not raise a claim against Manitoba, whether under its statutes or under the Canada-Manitoba Agreement, either for assistance beyond what the appellant receives from Manitoba or for a declaration that the Gov ernment of Manitoba is disregarding that Prov ince's statutes. The appellant has no more claim to either than did the appellant in Re Lofstrom and Murphy et a1. 4 He also has none since he has carried his claims through the Manitoba courts and has failed. So far as the Canada-Manitoba
4 (1971), 22 D.L.R. (3d) 120 (Sask. C.A.).
Agreement goes he could scarcely raise a reason able cause of action against Manitoba on the basis of an allegation that Manitoba receives money from Canada to which it is not entitled.
But here the situation is different. The claim is not asserted against Manitoba. It is asserted against the federal authorities charged with the administration according to law of a federal stat ute which authorizes, under specified circum stances but only under such circumstances, the payment of money from the Consolidated Revenue Fund of Canada. If indeed payments are being made unlawfully it seems to me that there is appropriate subject-matter for a declaration to that effect. That was the basis for relief put for ward successfully in Macllreith v. Hart et al. 5 which raised an issue as to the lawfulness of an expenditure of municipal funds. The basis for relief was the same in Paterson v. Bowes 6 where the claim was brought against the Mayor of Toronto to compel repayment to the City of a profit made in a transaction with a contractor who had dealings with the City. In The Minister of Justice of Canada et al. v. Borowski,' Laskin C.J., after referring to this feature of the situation in Macllreith v. Hart et al., said [at page 580]:
In the provincial and federal field, the issue of an illegal, or perhaps unconstitutional, expenditure would not likely arise per se but, in the main, only (as is alleged in this case) in connection with the operation of challenged legislation; the challenge to the expenditure would thus depend on the outcome of the challenge to the legislation.
Here the challenge does arise per se and the case is accordingly in my view stronger than those in Thorson [see infra, footnote 9] and Borowski where the alleged illegality of the expenditure of public funds was a mere consequence that would flow from the statutory provisions they sought to attack being held ultra vires in the one case, and inoperative in the other. The present is a case directly within the class of Macllreith v. Hart et al. It varies from it only in that it is federal expenditure which is alleged to be illegal and in that the appellant does not assert standing as a taxpayer.
5 (1907), 39 S.C.R. 657.
6 (1853), 4 Gr. 170 (Ch.). [1981] 2 S.C.R. 575.
Once it is accepted for the purposes of this appeal that the allegations of the statement of claim are true, and it is not inconceivable that they may be true, one may at once wonder how the citizenry can put a stop to such illegal action otherwise than by the declaration of a court of competent jurisdiction. The issue is not constitu tional. Nor does it arise on the Canadian Bill of Rights [R.S.C. 1970, Appendix III]. On the other hand the statute involved is not regulatory legisla tion of the kind on which the issue in Smith v. The Attorney General of Ontario' arose. What is at stake is the right of the citizens of Canada to have the Consolidated Revenue Fund of Canada applied in accordance with the law. This appears to me to raise an issue of the kind referred to by Laskin J., (as he then was) in Thorson v. The Attorney General of Canada, et al. 9 when he said, at page 158:
For myself, I do not think that it was necessary to restrict the doctrine of Macllreith v. Hart in order to decide the Smith case as it was decided. Two entirely different situations were presented in those two cases. In the Smith case, a regulatory, even prohibitory, statute was in issue under which offences and penalties were prescribed; in Macllreith v. Hart, there was a public right involved which had no punitive aspects for any particular ratepayer or class of ratepayers, and it would beget wonder that, in such a case, there should be no judicial means of recovering or controlling an illegal expenditure of public money.
In my view the issue raised is an apt one for decision by a court and the statement of claim should not have been struck out as disclosing no reasonable cause of action.
I turn now to the question of the appellant's standing to maintain the action. He does not assert standing as a federal taxpayer. What he alleges is that he is a resident of Manitoba who is a "person in need" within the meaning of the Canada Assistance Plan. As such he is obviously one of the class of persons whom Parliament intended to be benefited by the Canada Assistance Plan. Neither the Province of Manitoba nor its municipalities have any interest in bringing the issue to adjudica tion and the Attorney General of Canada is a defendant in the action and acts on behalf of the
8 [1924] S.C.R. 331.
9 [1975] 1 S.C.R. 138.
other defendants in seeking to prevent the matter being brought to trial.
In such circumstances one may wonder why the law should prevent a person who is one of the class of intended beneficiaries of the Canada Assistance Plan and who alleges that he is not getting the standard of assistance it intends because Manitoba does not provide it, from bringing an action to have the issue of the legality of payments to Manitoba under the Act resolved. In seeking to maintain this action he is by no means a mere busybody and it seems to me that his interest in having the matter determined is at least as strong as that of the respondent in the Borowski case. In the course of his reasons in that case Martland J., after discussing the Thorson and McNeil 10 cases, said at page 598:
I interpret these cases as deciding that to establish status as a plaintiff in a suit seeking a declaration that legislation is invalid, if there is a serious issue as to its invalidity, a person need only to show that he is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other reasonable and effective manner in which the issue may be brought before the Court. In my opinion, the respondent has met this test and should be permitted to proceed with his action.
The fact that the plaintiff in such an action cannot claim to be a taxpayer is not decisive against him. That appears from the foregoing cita tion. It also appears from Paterson v. Bowes where standing as an inhabitant of Toronto was sufficient and from the reasons of Laskin J., (as he then was) in the Thorson case at pages 162-163:
I recognize that any attempt to place standing in a federal taxpayer suit on the likely tax burden or debt resulting from an illegal expenditure, by analogy to one of the reasons given for allowing municipal taxpayers' suits, is as unreal as it is in the municipal taxpayer cases. Certainly, a federal taxpayer's inter est may be no less than that of a municipal taxpayer in that respect. It is not the alleged waste of public funds alone that will support standing but rather the right of the citizenry to constitutional behaviour by Parliament where the issue in such behaviour is justiciable as a legal question.
10 The Nova Scotia Board of Censors et al. v. McNeil, [1976] 2 S.C.R. 265.
My understanding of the judgments of the Supreme Court in the Thorson, McNeil and Borowski cases is that the according of status to bring an action for declaratory relief in such situa tions is within the discretion of the Court. The rules developed by the Court on the subject are but principles to be applied in exercising that discre tion. They teach that the discretion is to be exer cised sparingly and is to be restricted to cases which raise justiciable issues that it is important in the public interest to have resolved. Otherwise the courts would be flooded with specious claims. The Thorson case raised constitutional issues. The McNeil case also raised a constitutional issue, one as to the validity of a provincial statute under which the Board of Censors operated. The case also raised challenges to regulatory provisions. In that respect it was close to, but still different from, the situation in Smith v. The Attorney General of Ontario. The Borowski case raised the broad ques tion of whether the provisions of the Criminal Code [R.S.C. 1970, c. C-34] permitting abortions were inoperative as being contrary to the Canadi- an Bill of Rights and whether expenditures of public money to support therapeutic abortions under such provisions were consequently illegal.
The issue here is not like any of these. It is not so striking as any of them. Even so, it seems to me to be one of sufficient importance that in the interest of the appellant, of the class of persons intended to have the benefit of the Plan and of the public in general the appellant should be allowed to raise it. In my opinion, he should not have been denied standing and his statement of claim should not have been struck out.
I would allow the appeal and restore the state ment of claim. For the reasons given the case in my view is not one for an interlocutory injunction. I would therefore dismiss the appeal from the refusal of the appellant's application for such an injunction. For the same reasons I would dismiss the appeal from the refusal by the Trial Division of
the appellant's originating application for an injunction. The respondents should have thirty days from the date of this judgment to file a defence in the action. I would not award costs in either proceeding.
* * *
The following are the reasons for judgment rendered in English by
HEALD J. (dissenting in part): These appeals from judgments of the Trial Division were heard together by agreement of counsel. Appeal A-1187- 82 is from a judgment dismissing appellant's origi nating notice asking for an injunction enjoining the respondent Ministers from authorizing and making payments to the Province of Manitoba pursuant to subsection 7(1) of the Canada Assist ance Plan, R.S.C. 1970, c. C-1 (hereinafter the Plan)." Appeal A-1195-82 is from another judg ment dismissing the appellant-plaintiff's applica tion for an interim injunction and striking out the plaintiff's statement of claim pursuant to Rule 419(1) [Federal Court Rules, C.R.C., c. 663]. The learned Motions Judge gave no reasons for his judgment in appeal A-1187-82. In appeal A-1195- 82, the order itself stated that the basis for the order was twofold:
(a) the plaintiff does not have the requisite standing in law to maintain his action; and
(b) the statement of claim does not disclose any reasonable grounds for obtaining the relief sought.
The issues on both appeals as argued before us are the same and are also identical to those argued before the Motions Judge as detailed supra.
l' 7. (1) Contributions or advances on account thereof shall be paid, upon the certificate of the Minister, out of the Con solidated Revenue Fund at such times and in such manner as may be prescribed, but all such payments are subject to the conditions specified in this Part and in the regulations and to the observance of the agreements and undertakings contained in an agreement.
The facts, as set out in the statement of claim, may be summarized as follows. The plaintiff is a Manitoba resident, who by reason of severe illness and disability, is unable to provide adequately for himself. His sole source of support are the social allowances he receives pursuant to The Social Allowances Act of Manitoba. Accordingly, he claims to be a "person in need" pursuant to the Plan. 12 He alleges that all contributions made by the Government of Canada, to the Province of Manitoba in respect of social assistance provided by the Province, under the authority of subsection 7(1) of the Plan are subject to the conditions specified in Part I of the Plan, the regulations promulgated thereunder and the agreements be tween Canada and Manitoba. He alleges that the payments that have been made by Canada to Manitoba are contrary to said Part I because:
1. The Winnipeg Director of Welfare, pursuant to authority contained in the provincial Act
12 "Person in need" is defined in section 2 of the Plan as follows:
2. In this Act
"person in need" means
(a) a person who, by reason of inability to obtain employ ment, loss of the principal family provider, illness, disabili ty, age or other cause of any kind acceptable to the provincial authority, is found to be unable (on the basis of a test established by the provincial authority that takes into account that person's budgetary requirements and the income and resources available to him to meet such requirements) to provide adequately for himself, or for himself and his dependants or any of them, or
(b) a person under the age of twenty-one years who is in the care or custody or under the control or supervision of a child welfare authority, or a person who is a foster-child as defined by regulation,
and for the purposes of paragraph (e) of the definition "assistance" includes a deceased person who was a person described in paragraph (a) or (b) of this definition at the time of his death or who, although not such a person at the time of his death, would have been found to be such a person if an application for assistance to or in respect of him had been made immediately before his death;
deducted from his monthly social assistance payments for 46 months, a 5% deduction to recover a past overpayment, thereby, in his view, breaching the Province's undertaking in the Plan (paragraph 6(2)(a)), 13 to provide financial aid to persons in need in an amount "that takes into account his basic requirements".
2. Before he received social allowances under the provincial legislation he received municipal relief from the City of Winnipeg. Pursuant to section 444 of the Manitoba Municipal Act, that municipal relief is deemed to be a debt. In his view, this provision also is a breach by Manitoba of its undertaking under paragraph 6(2)(a) of the Plan referred to supra.
3. The Manitoba legislation empowers the Prov ince to delegate to its municipalities the power to establish assistance rates contained in the definition of "person in need" in section 2 of the Plan. The result is that municipal relief pay ments vary to some extent, depending on the cost of living in different areas, and are usually lower than the amount fixed by the provincial legislation. Thus, the plaintiff claims that this arrangement between the Province and each of its several municipalities constitutes a further breach by the Province of its undertakings under paragraph 6(2)(a) of the Plan.
The statement of claim then seeks a declaration that the payments of contributions by the Govern ment of Canada, pursuant to subsection 7(1) of the Plan, to Manitoba are illegal so long as the practices detailed in paragraphs 1 to 3 supra are continued; an injunction enjoining such payments; and a declaration that all funds paid to Manitoba
'3 Paragraph 6(2)(a) of the Plan reads:
6....
(2) An agreement shall provide that the province
(a) will provide financial aid or other assistance to or in respect of any person in the province who is a person in need described in paragraph (a) of the definition "person in need" in section 2, in an amount or manner that takes into account his basic requirements;
as contributions since March 20, 1967 are an overpayment within the meaning of paragraph 9(1)(g) of the Plan.
I think it advisable for a proper understanding of the issues raised herein to summarize briefly the scheme of the Canada Assistance Plan. Section 4 enables the Minister of National Health and Wel fare with the approval of the Governor in Council to enter into an agreement with any province which agreement will provide for the payment by Canada to the province of contributions to the provincial and municipal welfare and assistance programs which have been provided by provincial law. Paragraph 6(2)(a) supra, requires, inter alia, that the federal-provincial agreement contemplat ed by section 4 contain an undertaking by the province to provide financial assistance to persons in need (as defined in section 2 of the Plan) in a manner that "takes into account" their basic and budgetary requirements and having regard also to the income and resources of an applicant in meet ing those requirements.
Section 7 supra, provides that the contributions or payments pursuant to the Plan and the agree ments are subject to the conditions of Part I of the Plan, the regulations, and the conditions of the federal-provincial agreement and stipulates that such payments are to be made upon the certificate of the Minister of National Health and Welfare, out of the Consolidated Revenue Fund.
Section 19 requires the Minister of National Health and Welfare to prepare an annual report on the operation of all agreements made under the Plan and enumerating the payments made to each of the provinces thereunder. There is also a requirement that the Minister's report be tabled in Parliament.
In my opinion, it is clear from the scheme of the Plan supra, that when the Minister of National Health and Welfare gives his certificate pursuant to section 7 and when he performs any other duties imposed on him pursuant to that Plan, he is per forming those duties as a servant, agent or officer representing the Crown and not as a designated
person. 14 Furthermore, I find nothing in the Plan which imposes on the Minister a legal duty towards any individual. The duty imposed therein on the Minister is one owing to Canada and requires him to decide an administrative question each time he issues a certificate for payment to a province—that is—has the province complied with all the requisites necessary for that particular province to receive that particular payment. On this issue, I find persuasive the decision of the Saskatchewan Court of Appeal in the case of Re Lofstrom and Murphy et al. 1 S In that case, the appellant submitted that a regulation passed under The Saskatchewan Assistance Act, 1966 [S.S. 1966, c. 32] was invalid because, inter alia, it contravened the statutory provisions of the Plan. In rejecting this argument, Culliton C.J.S. speak ing for the Court, said at page 122:
Part I of the Canada Assistance Plan creates no right to assistance by any person in this Province. It does no more than provide the legislative authority for the Government of Canada to enter into a cost-sharing agreement with a provincial Gov ernment with respect to social assistance granted by the Prov ince and specifies in some detail the areas in which such costs may be shared. To ensure that the agreement complies with the authority granted by the Act, provision is made for the incorpo ration of certain specific terms in the agreement. It in no way restricts the legislative competence of a provincial Legislature in the field of social assistance. If, after entering into an agreement, a Province adopts legislation and regulations con trary to the terms of the agreement, that would be a matter entirely between the Governments, affecting only the respective obligations and rights under the agreement. The fact that the provincial legislation and Regulations contravene the term of the agreement would not render such legislation and Regula tions invalid if it is otherwise within the legislative competence of the Province.
In my opinion the right of any resident of Saskatchewan to assistance must be found within the provisions of the Saskatch- ewan Assistance Act, 1966. No rights arise by virtue of the Canada Assistance Plan.
I agree with that view of the matter. No rights accrue to this appellant from the Plan. Any right
14 Compare: Regina v. Minister of Natural Resources of Saskatchewan, [1973] 1 W.W.R. 193 (Sask. C.A.), at pp. 198-199, per Culliton C.J.S.; Rothmans of Pall Mall Canada Limited et al. v. Minister of National Revenue et al., [1976] 1 F.C. 314 (T.D.), at pp. 320-321; The Queen v. The Lords Commissioners of the Treasury (1872), 7 Q.B. 387, at p. 394; The Queen v. The Secretary of State for War, [1891] 2 Q.B. 326 (C.A.), at p. 338.
15 (1971), 22 D.L.R. (3d) 120 (Sask. C.A.).
to assistance which he may have must be found within the provisions of The Social Allowances Act of Manitoba. He has pursued his appeal rights under that statute, 16 albeit unsuccessfully.
Turning now to the question as to whether the appellant has the requisite standing to maintain this action, I think that the Motions Judge was also correct in deciding against the appellant on this issue as well. I do not consider that the Thorson and McNeil decisions' 7 in the Supreme Court of Canada have any application to a case such as this. As stated by Martland J. in the Borowski case, ]$ in both Thorson and McNeil supra, the challenge to the legislation in question was founded upon their alleged constitutional inva lidity. I am likewise of the view that the decision in Borowski, supra, does not assist this appellant. In that case, a declaration was sought that certain subsections of the Criminal Code were invalid and inoperative by reason of the operation of the Canadian Bill of Rights. At page 598 [S.C.R.], Martland J. speaking for the majority, in discuss ing Thorson and McNeil, said:
I interpret these cases as deciding that to establish status as a plaintiff in a suit seeking a declaration that legislation is invalid, if there is a serious issue as to its invalidity, a person need only to show that he is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other reasonable and effective manner in which the issue may be brought before the Court. In my opinion, the respondent has met this test and should be permitted to proceed with his action.
As I perceive the test above enunciated in the Thorson, McNeil and Borowski cases supra, status is to be accorded only in actions where a declaration of invalidity is sought in respect of certain legislation. The case at bar is not such a
'a Pursuant to paragraph 9(1)(e) of that Act, the appellant appealed the Winnipeg Welfare Director's decision to deduct 5% from 46 of his monthly social assistance payments as referred to supra. His appeal to the Appeal Board was unsuc cessful as was his appeal to the Manitoba Court of Appeal (1976), 71 D.L.R. (3d) 597.
' 7 Thorson v. The Attorney General of Canada, et al., [1975] 1 S.C.R. 138; The Nova Scotia Board of Censors et al. v. McNeil, [1976] 2 S.C.R. 265; (1975), 5 N.R. 43.
18 The Minister of Justice of Canada et al. v. Borowski, [1981] 2 S.C.R. 575, at p. 596; 39 N.R. 331, et p. 341.
case. The declaration herein sought, as stated supra, relates to the validity of administrative action, i.e., payment by Canada to Manitoba allegedly contrary to certain provisions of the Plan. The question raised here is similar to the one discussed by Le Dain J. in Rothmans of Pall Mall Canada Limited et al. v. Minister of National Revenue et al. [No. 11, 19 i.e., it is: "... a question of administrative interpretation that the authori ties are obliged to make in their application of the governing statute". This appellant is not asking for a declaration challenging the validity of the Plan. It is the administration of that federal statute which he seeks to impugn. I therefore think it is not a case which is covered by the rationale of either Thorson, McNeil or Borowski. If that is so, then I think the general rule enunciated by Chief Justice Laskin in Borowski 2° should apply, namely that it is not open to a citizen and/or taxpayer "to invoke the jurisdiction of a competent court to obtain a ruling on the interpretation or application of legislation, or on its validity, when that person is not either directly affected by the legislation or is not threatened by sanctions for an alleged violation of the legislation". Since in my view no rights accrue to this appellant from the Plan, and since the Plan is in no way a penal statute, he cannot have any status to seek the declaration sought in this statement of claim.
For these reasons I would dismiss both appeals. Since the respondents are not requesting costs, I would make no order in respect thereof.
* * *
The following are the reasons for judgment rendered in English by
LALANDE D.J.: This (A-1195-82) is an appeal against two judgments of the Trial Division dated November 17, 1982. By the first, appellant's motion for an interim injunction to enjoin the Minister of Finance of Canada from making any further payments to the Province of Manitoba under subsection 7(1) of the Canada Assistance
19 [1976] 2 F.C. 500 (C.A.), at p. 510.
20 S.C.R., at p. 578; N.R., at pp. 344-345.
Plan, R.S.C. 1970, c. C-1, was refused. By the second, respondents' motion to strike the statement of claim was granted on the grounds stated in the motion, namely, lack of standing on the part of the appellant and absence of reasonable grounds in his statement of claim for obtaining the relief sought by the action. There are no other recorded reasons.
By his statement of claim appellant sought a declaration that the payment of contributions by the Minister of Finance under subsection 7(1) is illegal so long as The Social Allowances Act of Manitoba
... continues to authorize reducing an allowance below the level of basic requirements to collect debts; or so long as all municipal relief paid by Manitoba municipalities remains legal ly a loan and not a gift; or so long as Manitoba permits its municipalities to establish their own rates of assistance independently of the Provincial authority.
Appellant also sought an injunction enjoining the Minister of Finance and the Minister of Na tional Health and Welfare from committing the acts, i.e., paying contributions and issuing certifi cates, that appellant asks be declared illegal.
It is obvious from this bare statement of what is involved that the case is not one for an interim injunction and the appeal from the order refusing it should be dismissed.
Appellant alleges that he is a "person in need" within the meaning of the Canada Assistance Plan and a resident of the Province of Manitoba; that the Province of Manitoba is not now observing and never has fully observed its agreement with the Government of Canada under which it agreed to provide financial aid or other assistance to a person in need "in an amount or manner that takes into account his basic requirements"; that he was deprived of 5% of his monthly social allowance for a period of 46 months because the Province claimed that its agents had paid him too much assistance, thereby reducing his allowance below the level of his basic requirements; that the Municipal Act of Manitoba enacts that the assist ance provided by municipalities in the Province is
a debt due by the recipient and not a gift; that by delegating "fully" to its municipalities the estab lishment of rates of assistance the Province of Manitoba has contravened the provisions of the Canada Assistance Plan by failing to establish the test that is therein required in the definition of "person in need".
For present purposes the appellant's allegations must be taken as being true.
With regard to his standing appellant argues that as a person in need, who has been adversely affected by being deprived of his basic require ments, he has a special interest in the carrying out and proper administration of the Canada Assist ance Plan and of the agreement thereunder with the Province of Manitoba.
Respondents' counsel relief on Rothmans of Pall Mall Canada Limited et al. v. Minister of National Revenue et al. [No. 11 21 and said it could not be distinguished from the present case on the question of standing. I do not agree, the two cases are worlds apart.
In Rothmans applicants for prohibition and other like relief, who were cigarette manufactur ers, contended that the filter tip portion of a cigarette should be included in determining the length of the cigarette for purposes of the defini tion of "cigarette" in the Excise Act [R.S.C. 1970, c. E-12]. The Department had adopted the posi tion that the filter tip should not be included and it was contended that this gave other manufacturers a competitive advantage that caused prejudice to the applicants. The Federal Court of Appeal held with the Trial Judge that the applicants did not have an interest of the kind necessary to give them standing to obtain any of the relief sought in their application.
21 [1976] 2 F.C. 500 (C.A.), affirming [1976] 1 F.C. 314 (T.D.).
Here we have something that is entirely differ ent. The appellant is a social welfare recipient who is seeking a judicial declaration as to the meaning and extent of operation of certain provisions of the Canada Assistance Plan in the light of the treat ment he alleges he has received at the hands of the provincial authorities pursuant to provincial law. The question to which the appellant is seeking a judicial answer is whether or not the provisions of the Manitoba statutes referred to in his statement of claim affect the rights that he alleges are his by virtue of the Canada Assistance Plan.
As has been said by Mr. Justice Dickson for the Supreme Court of Canada in Solosky v. Her Majesty The Queen, 22 we are not constrained by the particular form of wording employed in the prayer for relief. 23 What is essential in this case is that there be a real question of public interest and that the applicant have a genuine special interest in obtaining a judicial declaration upon it. In my opinion the question submitted is of public interest and the appellant has a special interest that is genuine.
But there is another aspect of the matter that needs being looked into in respect of standing and that is whether, to use Mr. Justice Martland's words in The Minister of Justice of Canada et al. v. Borowski, 24 there is another "reasonable and effective manner in which the issue may be brought before the Court".
I will first refer to certain proceedings in the Manitoba courts.
In Finlay and Director of Welfare (Winnipeg South/West) 25 the Manitoba Court of Appeal has decided that the Director of Welfare had statutory authority under Manitoba law to reduce appel lant's monthly social allowance below the cost of basic necessities in order to recover a past overpay
22 [1980] 1 S.C.R. 821, at p. 830.
23 Referring to declaratory proceedings, de Smith's Judicial Review of Administrative Action (4th ed., London: Stevens & Sons Limited, 1980) at p. 482: "No other judicial remedy is so free from restrictive technicalities."
24 [1981] 2 S.C.R. 575, at p. 598.
25 (1976), 71 D.L.R. (3d) 597 (Man. C.A.).
ment. There is no mention in the Court's reasons of the Canada Assistance Plan.
In the subsequent unreported case of Beattie and The Director of Social Services (Winnipeg South/West), one of the questions upon which leave to appeal was granted was whether the Social Services Advisory Committee erred in per mitting the Director of Social Services to make overpayment deductions contrary to an agreement between the Government of Manitoba and the Government of Canada. That question was answered as follows by Hall J.A. in reasons deliv ered for the Court on May 15, 1978:
On the first question, it is our opinion that the existence and possible breach of the agreement between the Provincial and Federal Governments with regard to the requirement of provid ing social allowances in an amount sufficient to provide persons with their basic necessities of life is not relevant to the question of recovering overpayments from current social allowances.
An application by Kathryn Beattie for prohibi tion, mandamus and an injunction against the Minister of National Health and Welfare was dismissed by the Trial Divison of the Federal Court on March 30, 1978 (T-1240-78).
It would seem there is no "reasonable and effec tive manner", other than an action for a declara tion, in which the issue submitted by the appellant may be brought before the Court.
The Trial Judge struck out the statement of claim also on the alternative ground that it did not disclose any reasonable grounds for obtaining the relief sought.
The appellant's principal thrust is that the Manitoba enactments violate subclause 2(a) of the Agreement dated March 26, 1967 between the Government of Canada and the Government of the Province of Manitoba. This is the agreement
authorized in section 4 26 and referred to in subsec tion 7(1) 27 of the Canada Assistance Plan.
Subclause 2(a) of the Agreement reads as follows:
The Province agrees
(a) to provide financial aid or other assistance to or in respect of any person in the province of Manitoba who is a person in need described in subparagraph (i) of paragraph (g) of Section 2 of the Act in an amount or manner that takes into account his basic requirements;
By section 2 of the Act "person in need" means:
2....
(a) a person who, by reason of inability to obtain employ ment, loss of the principal family provider, illness, disability, age or other cause of any kind acceptable to the provincial authority, is found to be unable (on the basis of a test established by the provincial authority that takes into account that person's budgetary requirements and the income and resources available to him to meet such require ments) to provide adequately for himself, or for himself and his dependants or any of them, or
One would have to have examined carefully all of the provisions of the Canada Assistance Plan and of the section 4 Agreement with Manitoba to be able to assess the merit of appellant's conten tion. That has not yet been done and until it is it is not possible to say that his position is unarguable or patently unsustainable.
This case is not unlike Carota v. Jamieson et al. 28 where the plaintiff was seeking a declaration
26 4. Subject to this Act, the Minister may, with the approval of the Governor in Council, enter into an agreement with any province to provide for the payment by Canada to the province of contributions in respect of the cost to the province and to municipalities in the province of
(a) assistance provided by or at the request of provincially approved agencies, and
(b) welfare services provided in the province by provincially approved agencies,
pursuant to the provincial law.
27 7. (1) Contributions or advances on account thereof shall be paid, upon the certificate of the Minister, out of the Con solidated Revenue Fund at such times and in such manner as may be prescribed, but all such payments are subject to the conditions specified in this Part and in the regulations and to the observance of the agreements and undertakings contained in an agreement.
28 [1977] 1 F.C. 19 (T.D.); [1977] 1 F.C. 504 (T.D.), affirmed [1977] 2 F.C. 239 (C.A.).
that an agreement between the Government of Canada and the Government of Prince Edward Island was void as being contrary to a section of the Department of Regional Economic Expansion Act, R.S.C. 1970, c. R-4.
My conclusion is that the appellant should have his day in court on the issue he is raising.
The appeal in case A-1195-82 should be allowed and the statement of claim restored. The respond ents should have thirty days from the date of the judgment in this Court to file a defence in the action.
I agree with the Chief Justice's affirmation of the refusal of an injunction on the originating motion in case A-1187-82.
In both cases there should be no order as to costs.
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