A-487-84
Centre d'information et d'animation communau-
taire (C.I.A.C.), Yvon Coursol, René Chartrand,
Fernand Lapierre, et al. (Appellants)
v.
The Queen, Attorney General of Canada, Minister
of Transport, Minister of Public Works, Société
Immobilière du Canada (Mirabel) Ltée, Léo Fer -
land (Respondents)
and
Attorney General of the Province of Quebec,
Registrar of the Registry Divisions of Deux-Mon-
tagnes, Argenteuil and Terrebonne, City of Mira -
bel, Parish of St -Placide, Parish of St -André,
Parish of Ste-Anne des Plaines, Parish of Ste-
Sophie, Parish of St-Antoine (Mis -en-cause)
Court of Appeal, Pratte, Ryan and Hugessen JJ.—
Montreal, June 21, 22, 28, 29; Ottawa, July 12,
1984.
Crown — Injunction — Lands expropriated to build Mira -
bel Airport — Application to prohibit Crown from selling
lands pending outcome of action challenging validity of expro
priation — Injunction granted if issue between individuals but
Court bound by Grand Council of the Crees (of Quebec), et al.
v. The Queen, et al. 119821 1 F.C. 599 (C.A.) where longstand-
ing rule of immunity of Crown from injunctive relief
reaffirmed.
Injunctions — Expropriation of lands by Crown to build
Mirabel Airport — Application to prohibit Crown from selling
expropriated lands pending outcome of action challenging
validity of expropriation — Court considering itself bound by
own recent decision in Grand Council of the Crees (of Quebec),
et al. v. The Queen, et al. where long-standing rule of immuni
ty of Crown from injunctive relief reaffirmed.
In 1969, the appellants' lands were expropriated by the
Crown for the construction and operation of Mirabel Airport.
In 1983, the appellants initiated an action challenging the
validity of the expropriation and claiming their lands as not
needed for airport purposes. Having learned, in March 1984,
that Her Majesty proposed to sell those lands, they applied for
an interlocutory injunction to prohibit the Crown from proceed
ing with the plan until the action had been heard. This is an
appeal from the Trial Division's dismissal of the application.
Held (Hugessen J. dissenting), the appeal should be
dismissed.
Per Pratte J.: Given the fact that the balance weighs in
favour of the appellants with respect to each of the relevant
factors in this case, i.e., balance of convenience, adequacy of
monetary compensation, appellants' allegedly reprehensible
conduct and delay in bringing the action, if this were an issue
between individuals, an injunction would be granted. However,
the Crown is involved and the Court considers itself bound by
its own recent decision in Grand Council of the Crees (of
Quebec), et al. v. The Queen, et al., [1982] 1 F.C. 599 (C.A.),
where it reaffirmed the long-standing rule of immunity of the
Crown from injunctive relief.
Per Hugessen J. (dissenting): An injunction should be grant
ed. First, because there is a strong possibility that the action
will be allowed and at least part of the expropriation will be
quashed as having been unnecessary for airport purposes as
such. Second, because the balance of convenience is clearly in
favour of the appellants: the loss the government would suffer
from a suspension of the sale would be negligible whereas the
appellants' remedy would be illusory if it became impossible to
recover their property.
As for the old notion of royal immunity from interlocutory
injunction, it cannot be reconciled with our modern understand
ing of democracy and of equality before the law. In any case,
Crown immunity has no application in a case where the issue is
the division of powers between two levels of government.
Although the relevant case law deals with interim relief in
actions seeking to quash legislation for being ultra vires, there
is no distinction between those cases and those where adminis
trative action is challenged for going beyond the constitutional
limits of the enabling legislation. And the rules governing
applications for interlocutory injunctions do not differ from
those mentioned in the case law for the appointment of an
interim receiver.
The delay in bringing the action does not mean that the
appellants do not have the "clean hands" needed to obtain an
injunction. The government suffered no real prejudice and,
given the unequal strength of the two parties, it would have
been difficult for the appellants to act otherwise.
CASES JUDICIALLY CONSIDERED
APPLIED:
Grand Council of the Crees (of Quebec), et al. v. The
Queen, et al., [1982] 1 F.C. 599 (C.A.).
CONSIDERED:
B.C. Power Corporation v. B.C. Electric Company,
[1962] S.C.R. 642; Amax Potash Ltd. et al. v. Govern
ment of Saskatchewan, [1977] 2 S.C.R. 576; Société
Asbestos Limitée c. Société Nationale de L'amiante et
autre, [1979] C.A. 342 (Que.); Attorney General of
Canada et al. v. Law Society of British Columbia et al.,
[1982] 2 S.C.R. 307.
COUNSEL:
Guy Bertrand, Denis Lemieux for appellants.
Michel Robert, Q.C., Yves Bériault, Luc
Martineau, Yvan Nantel and Suzanne Racine
for respondents.
Joseph Nuss, Q. C., for Clerk of the Privy
Council and Attorney General of Canada.
Réal A. Forest for mis -en-cause.
SOLICITORS:
Tremblay, Bertrand, Morisset, Bois & Mi-
gnault, Ste-Foy, Quebec, for appellants.
Robert, Dansereau, Barré, Marchessault &
Lauzon, Montreal, for respondents.
Department of Justice of Quebec, Quebec, for
mis -en-cause.
Ahern, Nuss & Drymer, Montreal, for Clerk
of the Privy Council and Attorney General of
Canada.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: Most of the appellants were owners
of farms which Her Majesty expropriated in 1969
to build the Mirabel Airport. By an action brought
in 1983, they challenged the validity of that expro
priation and claimed their lands, which in their
opinion, were not needed for either construction or
operation of the airport. In March 1984, after
learning that Her Majesty proposed to sell the
lands at issue, they filed an application for an
interlocutory injunction prohibiting Her Majesty
from proceeding with this plan until the action had
been heard. Rouleau J. of the Trial Division dis
missed this application: hence the appeal.
The reasons given by the Trial Judge in support
of his decision are difficult to summarize. I will
only say that they set forth several propositions
which appear to me to be debatable.
The action of the plaintiffs-appellants seems to
me to raise difficult and significant points, despite
the delay by the appellants in bringing their
action. As it stands at present, the record does not
support a conclusion that this delay by the appel-
lants amounted to a waiver of their right to chal
lenge the expropriation.
I also consider that denying the injunction
requested could cause the appellants very serious
injury which cannot be compared with the mini
mal inconvenience which granting that injunction
would cause to Her Majesty. What is called in
English the "balance of convenience" is thus clear
ly in favour of the appellants.
I would add that while the loss which the appel-
- lants are attempting to avoid by seeking an injunc
tion can, like any material loss, be compensated
for by the payment of a sum of money, this is not a
case where the monetary compensation is so ade
quate that it rules out the remedy of an injunction.
Further, I do not consider that this is a proper
case for applying the rule of equity by which "He
who comes into equity must come with clean
hands". The appellants' conduct is certainly open
to criticism. However, I do not feel that it was so
reprehensible and, if reprehensible, so closely
related to the remedy they are seeking that it
should be denied to them solely on this ground.
Finally, the appellants' delay in bringing their
action also does not appear to me to justify deny
ing the injunction: first, because, as I said above,
this delay cannot be regarded as amounting to a
waiver by the appellants of their right to challenge
the expropriation, and second, because the delay
has caused no loss to the respondents.
It follows from the foregoing that, if this were
an issue between individuals, I would grant the
injunction requested. However, the interlocutory
injunction requested by the appellants is directed
against Her Majesty: what the appellants are
attempting to prevent is the transfer of the lands at
issue by Her Majesty. There is a rule of long
standing that the courts cannot issue an injunction
against the Crown. This rule may seem archaic,
but this Court has recently' held that it still
applies and that it was not abolished by the Feder
al Court Act [R.S.C. 1970 (2nd Supp.), c. 10]. In
' Grand Council of the Crees (of Quebec), et al. v. The
Queen, et al., [1982] 1 F.C. 599 (C.A.).
these circumstances, I consider that this recent
decision must be followed until the legislator or the
Supreme Court of Canada decides otherwise.
Accordingly, although this appears to be a case
in which the status quo should be maintained
while the action is pending, I am obliged to dismiss
the appeal with costs.
RYAN J.: I concur.
* * *
The following is the English version of the
reasons for judgment rendered by
HUGESSEN J. (dissenting): This is an appeal
from a judgment of the Trial Division which
refused to grant an interlocutory injunction
requested by the appellants. The latter are owners
of lands which were expropriated by the federal
government in 1969 for the Mirabel Airport. By
their action, brought in May 1983, they are asking
the Court to quash the expropriation and return
their lands to them. In March 1984, they filed an
application for an interlocutory injunction to bar
the sale which the government was planning of a
large part of the expropriated lands. Judgment on
this application was rendered on March 30, 1984,
and hence the appeal at bar.
In my view, there is no question that the appel
lants' action raises significant questions of consti
tutional law. Without ruling on the merits of the
case, I consider that there is a strong possibility
that the action will be allowed and that at least
part of the expropriation will be quashed as having
been unnecessary for airport purposes as such.
I am also of the view that the balance of conve
nience is clearly in favour of the appellants: the
loss which the government would suffer by tem
porarily suspending sale of the disputed lands is
negligible; on the other hand, the appellants'
remedy would be illusory if, following the sale of
the lands, it becomes impossible for them ever to
recover their property.
However, respondents cited the immunity of the
Crown against an interlocutory injunction. For my
part, and with respect for the contrary view, I
consider that this old notion of royal immunity
cannot be reconciled with our modern understand
ing of a democratic state and of the right of every
citizen to be equal before the law. In any case,
Crown immunity has no application in a case
where the issue itself is the division of powers
between the two levels of government of a federal
state: the sovereignty of one cannot be relied on as
a justification for encroaching on the equally sov
ereign powers of the other. This principle may be
derived from the following authorities:
B.C. Power Corporation v. B.C. Electric Com
pany, [1962] S.C.R. 642:
In a federal system, where legislative authority is divided, as
are also the prerogatives of the Crown, as between the
Dominion and the Provinces, it is my view that it is not open
to the Crown, either in right of Canada or of a Province, to
claim a Crown immunity based upon an interest in certain
property, where its very interest in that property depends
completely and solely on the validity of the legislation which
it has itself passed, if there is a reasonable doubt as to
whether such legislation is constitutionally valid. To permit it
to do so would be to enable it, by the assertion of rights
claimed under legislation which is beyond its powers, to
achieve the same results as if the legislation were valid. In a
federal system it appears to me that, in such circumstances,
the Court has the same jurisdiction to preserve assets whose
title is dependent on the validity of the legislation as it has to
determine the validity of the legislation itself. [Per Kerwin
C.J., at pages 644 and 645.]
Amax Potash Ltd. et al. v. Government of Sas-
katchewan, [1977] 2 S.C.R. 576:
... this Court has the discretion to make an order as
requested by appellants directing the Province of Saskatche-
wan to hold, as stakeholder, such sums as are paid by the
appellants pursuant to the impugned legislation but with the
rights to use such sums in the interim for Provincial pur
poses, and with the obligation to repay them with interest in
the event the legislation is ultimately held to be ultra vires.
[Per Dickson J., at page 598.]
Société Asbestos Limitée c. Société Nationale de
L'amiante et autre, [1979] C.A. 342 (Que.):
[TRANSLATION] If legislation is invalid because it has
been or may be declared to be so, the government and the
Attorney General should not take refuge behind a claim of
absolute immunity which they would confer on themselves to
act pursuant to that legislation to suspend the application of
the statute, leaving the courts powerless to stop them. The
right of the government and the Attorney General to act
pursuant to the impugned legislation depends on the validity
of the legislation and is bound up with it. I recognize that a
competent court has the right, by the provisional measure
known as an injunction, to maintain the status quo between
the parties so long as there has not been a final decision on
the validity of the statute, if the other conditions for granting
an injunction are met. [Per Lajoie J.A., at page 350.]
Attorney General of Canada et al. v. Law Society
of British Columbia et al., [1982] 2 S.C.R. 307:
... courts with jurisdiction to undertake a particular lis have
had the authority to maintain the status quo in the interim
pending disposition of all claims arising even though the
preservation order, viewed independently, may be beyond the
jurisdiction of the court. [Per Estey J., at page 330.]
For my part, I can see no distinction between an
action seeking to quash a statute which exceeds
the powers of the legislature that adopted it and
one that challenges administrative action because
it goes beyond the constitutional limits of the
enabling legislation.
I also consider that the rules which must be
applied to an application for an interlocutory
injunction do not differ in this regard from those
mentioned in the authorities cited for the appoint
ment of an interim receiver, as the latter remedy is
at least as draconian as an injunction.
Actually, it is not the respondents' position but
that of the appellants which makes me hesitate
before granting the interlocutory injunction
requested. The appellants' action was brought over
fourteen years after the expropriation and after
they had all received sizable compensation and
signed releases in favour of the government. Does
such action not indicate that the appellants do not
have the "clean hands" needed to obtain an inter
locutory injunction? On reflection, I conclude that
it does not. It is hard to see how the long delay
that has elapsed since the expropriation could
really injure the government; moreover, the un
equal strength of the two parties involved is such
that it would have been difficult for the appellants
to act otherwise.
For these reasons, I would allow the appeal and
make an order directing the respondents not to sell
the land owned by the appellants immediately
before the expropriation. Ordinarily this order
would remain in effect until the final judgment
was rendered; however, it appears that the record
of the interlocutory injunction was not completed
before the Trial Judge, in that he rendered his
decision on a preliminary motion by the respond
ents and before the parties had an opportunity to
cross-examine on all the affidavits filed by either
side. Accordingly, I would make the aforemen
tioned order and would allow the parties to com
plete the said cross-examinations, and then ask for
the injunction order to be reviewed by the Trial
Division if they think it advisable.
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.