Jewish Community Council of Montreal v. Canada (Attorney General)

Jewish Community Council of Montreal v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2024-07-24
Neutral citation
2024 FC 1163
File numbers
T-511-24
Decision Content
Date: 20240724
Docket: T-511-24
Citation: 2024 FC 1163
Ottawa, Ontario, July 24, 2024
PRESENT: The Honourable Mr. Justice Régimbald
BETWEEN:
THE JEWISH COMMUNITY COUNCIL OF MONTREAL, KASHRUTH COUNCIL OF CANADA, RABBI ABRAHAM BANON, 4412532 CANADA INC. (D/B/A KOSHER MEHADRIN), and 1458935 ONTARIO LTD. (D/B/A SHEFA MEATS)
Applicants
and
ATTORNEY GENERAL OF CANADA
Respondent
ORDER AND REASONS
I. Overview [1] The Applicants, Jewish Community Council of Montreal [MK], Kashruth Council of Canada [COR], Rabbi Abraham Banon, 4412532 Canada Inc [Mehadrin] and 1458935 Ontario Ltd [Shefa], seek interlocutory injunctive relief from the application by the Canadian Food Inspection Agency [CFIA] of a requirement imposed by the CFIA’s Guidelines for ritual slaughter of food animals without pre-slaughter stunning [Guidelines] to licence holders of slaughterhouses [licence holders] in their production of kosher meat. The Guidelines require licence holders to confirm that a food animal is unconscious before the suspension of the animal and continuation of the process, by testing three (3) indicator signs to assess whether the animal is unconscious, which are: a) absence of rhythmic breathing (2 or more regular rib movements in and out); b) absence of palpebral reflex (after 3 consecutive negative results, 20 seconds apart); and c) absence of corneal reflex (after 3 consecutive negative results, 20 seconds apart) [three indicators of unconsciousness].
[2] The Applicants claim that the enforcement of the Guidelines have had a devastating impact on the supply of kosher meat in Canada and are depriving Canadian Jews of an important tenet of their faith. The Applicants claim that sections 143 and 144 of the Safe Food for Canadians Regulations, SOR/2018-108 [SFCR] and the Guidelines are unreasonable or ultra vires, and infringe their right to freedom of religion under subsection 2(a) of the Canadian Charter of Rights and Freedoms (Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11) [Charter], and are discriminatory under section 15 of the Charter.
[3] The injunction will be granted. There are serious issues as to whether the CFIA’s Guidelines are unreasonable and whether they encroach on the Applicants’ rights to freedom of religion under subsection 2(a) and right to equality under section 15 of the Charter. The evidence, as presented, demonstrates a potential for irreparable harm that cannot be adequately compensated with damages. Finally, in the circumstances, the balance of convenience favours the issuance of injunctive relief, given that compliance with section 143 of the SFCR and the necessity to ensure that food animals must be unconscious before suspension may be ensured without the use of the three indicators of unconsciousness now mandated by the Guidelines, by continuing the practice that has existed for many years before the adoption of the Guidelines.
II. Background Facts [4] The Applicant MK is a not-for-profit organization created to facilitate the maintenance of Jewish traditional life in Montreal. Its activities include the supervision and certification of meat as kosher. Its “MK” symbol on product labels, including meat, signifies that the product is kosher.
[5] The Applicant COR is a not-for-profit, charitable organization that is responsible for the certification of kosher meat production and numerous other products. The “COR” symbol is found on the labels of many kosher food products.
[6] The Applicant Mehadrin is the largest kosher meat distributor in Canada. It also imports into Canada kosher meat from Mexico and Argentina to be sold to Canadian customers, and exports kosher meat produced in Canada to the United States of America.
[7] The Applicant Shefa is another significant kosher meat distributor in Canada.
[8] It is not disputed that together, Mehadrin and Shefa procure and distribute all of the kosher meat from Canadian licenced slaughterhouses, with Mehadrin having approximately 75% of the market for such distribution and Shefa having the remainder.
[9] The Applicant, Rabbi Abraham Banon, is a shochet and bodek, and an employee of MK who has received intensive practical training and religious certification on how to slaughter animals humanely according to the Jewish religious law, and how to determine whether a slaughtered animal may be certified for consumption as kosher. Because of the reduction in kosher meat production at the licenced slaughterhouses, demand for Rabbi Banon’s services has been reduced. Rabbi Banon’s (and other shochetim’s and bodkim’s) capacity to perform the religious act for which he dedicated many years of training and of practice, as well as his livelihood, is impacted by the Guidelines.
[10] The rules of Kashrut, in respect of religiously prescribed dietary laws, are the keystones of Jewish practice. These laws include restrictions on the species of animals that may be eaten and the manner of slaughter of the animals, and also mandate inspections of internal organs for certain anomalies before an animal is considered fit for consumption, and certified as kosher.
[11] In the Jewish faith, slaughter must be conducted through one continuous, fluid cut with a knife resulting in the rapid, simultaneous and complete severance of the animal’s trachea, esophagus, carotid arteries, and jugular veins, leading to immediate massive blood loss. That slaughter process is known as shechita, which is a central element of Jewish religious practice. That process, which includes other steps such as the examination of the organs of the animal, is required for the meat to be certified for consumption as kosher. Shechita is performed by highly trained professionals known as shochetim and bodkim.
[12] The manner of slaughter is impugned in this case.
[13] The Safe Food for Canadians Act, SC 2012, c 24 [SFCA] and, more precisely, the SFCR, regulate food animal slaughter in Canada. Section 128 of the SFCR requires licence holders to handle food animals in a manner that does not cause avoidable suffering, injury or death.
[14] Section 141 of the SFCR requires that, before bleeding a food animal and continuing the slaughter process, a licence holder must render the animal unconscious in a manner that prevents it from regaining consciousness before death or slaughter. A licence holder may do so by using a method listed in section 141, such as stunning by delivering a blow to the head of the food animal with a mechanical device called a “captive bolt” in a manner that causes immediate loss of consciousness, if the process is conducted appropriately. That process is known as the “conventional slaughter.” Shechita is not one of the methods listed under section 141.
[15] Section 144 of the SFCR provides specific additional methods to those listed under section 141, in cases where a licence holder ritually slaughters the food animal to comply with Judaic or Islamic law. Shechita is therefore specifically permitted under section 144 of the SFCR. Section 144 requires that the slaughter through the process of shechita must cause the animal to bleed immediately, rapidly, and completely, to render it unconscious in a manner that prevents it from regaining consciousness before death.
[16] Section 143 of the SFCR prohibits the suspension of an animal on the slaughter line before it is rendered unconscious. Suspension of animals typically involves lifting and hanging an animal upside down by one leg to facilitate subsequent slaughter steps. The prohibition under section 143 of the SFCR to suspend an animal on the slaughter line before it is rendered unconscious applies both to conventional slaughter under section 141, and to ritual slaughter under section 144 of the SFCR.
[17] Once the animal has been rendered unconscious and suspended, the slaughter process comprises the following stages: bleeding, dressing (which entails removal of the skin, head, developed mammary glands and feet), evisceration, and splitting.
[18] Prior to 2019, the SFCR’s predecessor, the Meat Inspection Regulations, 1990, SOR/90-288, contained requirements similar to the SFCR for the humane treatment of food animals and listed similar conditions in which ritual slaughter could be performed. As currently applicable under sections 143 and 144 of the SFCR, ritual slaughter was allowed under the former regulations, and a food animal could not be suspended prior to it being rendered unconscious (see sections 77 and 78 of the Meat Inspection Regulations; see also the Affidavit of Dr. Appelt, at paras 29–33, Respondent’s Record, at pages 2201–2203.). Shechita was therefore allowed prior to the enactment of the SFCR, but the three indicators of unconsciousness now required under the Guidelines were not imposed to ensure that a food animal was unconscious before suspension.
[19] The issue in this case is that for the production of kosher meat, the food animals are not stunned by a forceful strike to the head from a captive bolt gun, prior to or after shechita, as is the case for conventional slaughter. The forceful strike to the head, in the case of conventional slaughter, renders the food animal unconscious when performed correctly, allowing the licence holders to suspend the animal almost immediately to continue the process.
[20] However, for kosher meat, the food animal is not stunned prior to shechita. As is the case for conventional slaughter, a licence holder must still ensure that a food animal is unconscious before it is suspended when conducting a ritual slaughter, as required under section 143 of the SFCR. In order to ensure that the food animal is unconscious prior to its suspension in the case of kosher slaughter, the Guidelines now require the licence holders to go through a series of measures, including applying the three indicators of unconsciousness.
[21] Prior to the adoption of the Guidelines, the three indicators of unconsciousness were not mandated, and licence holders were allowed to ensure that food animals were unconscious before suspension through the use of other indicators. The new measures mandated under the Guidelines are not required to the same extent for conventional slaughter, because the forceful strike to the head from a captive bolt gun renders the animal unconscious in most cases.
[22] The Guidelines are a result of a scientific literature review, performed by the CFIA following compliance issues in 2017 in the performance of ritual slaughter at a specific slaughterhouse [Establishment C]. During inspections, CFIA inspectors observed consistent signs of sensibility in animals following their suspension on the slaughter line, including rhythmic breathing, righting reflex, stiff neck and curled tongue. This scientific literature review led to the adoption of the Guidelines (Affidavit of L-P Vaillancourt, at paras 68–74, Respondent’s Record, at pages 15–16; Affidavit of Dr. Appelt, at paras 34–42, Respondent’s Record, at pages 2203–2205).
[23] The SFCR also came into force on January 15, 2019. The SFCR have not changed the requirement now existing under section 143 of the SFCR that a food animal must be unconscious before suspension. That requirement existed before. However, the CFIA also published the Guidelines, setting out the norms to be followed by licence holders in their application of section 143 of the SFCR. Contrary to conventional slaughter, as stated, the Guidelines require from licence holders performing ritual slaughter to ensure that food animals are unconscious by verifying physical indicators, including the three indicators of unconsciousness that are: a) absence of rhythmic breathing (2 or more regular rib movements in and out); b) absence of palpebral reflex (requiring 3 consecutive negative results, 20 seconds apart); and c) absence of corneal reflex (requiring 3 consecutive negative results, 20 seconds apart). The Guidelines are not incorporated by reference in the SFCR or in any other regulations administered by the CFIA.
[24] The Applicants submit that the three indicators of unconsciousness test the presence of reflexes that are controlled by the brain stem and are present even in unconscious animals incapable of feeling pain. The Applicants therefore argue that the three indicators of unconsciousness are misplaced because they do not demonstrate that an animal is unconscious, as required under section 143 of the SCFR, but rather that the animal is dead.
[25] Between 2019 and 2023, the CFIA did not strictly implement the use of the three indicators of unconsciousness required under the Guidelines, and instead promoted their use as best practices, informing the licence holders that eventually, the Guidelines would become mandatory. In 2023, the CFIA announced to licence holders performing shechita that they would be required to conform with the Guidelines by the end of May 2023. Beginning in June 2023, the CFIA started to enforce the Guidelines at all the slaughterhouses that were then doing kosher slaughter.
[26] According to the Applicants, the new requirements mandated by the Guidelines represent a departure from prior practice resulting in a reduction in efficiency of the operation of kosher slaughter to the point that some licence holders have now ceased to produce kosher meat. The Guidelines have added a few minutes to the time needed to process every animal, slowing the production to the extent that licence holders prefer to put an end to shechita and the production of kosher meat.
[27] The Applicants argue that the number of slaughterhouses producing kosher meat in Canada has been reduced to three because of the closure of several plants, resulting in a reduction of the total volume of kosher beef produced by 55%, and the volume of kosher veal by 90% (Affidavit of S. Rosenfeld, at paras 31–33, 54, 77, Applicant’s Record, at pages 5136, 5139, 5143). The restriction on access to kosher meat therefore prevents Canadian Jews from exercising the requirements of their faith, which unjustifiably violates their freedom of religion and their right to equality enshrined in the Charter.
[28] It also leaves specialized rabbis trained in shechita – the shochetim and bodkim – unable to fulfill their religious duties and practise their religion, and the other members of the community without local kosher meat.
[29] The issue is therefore whether the Guidelines requiring the application of the three indicators of unconsciousness to ensure that an animal is unconscious before suspension, as required under section 143 of the SFCR, are reasonable when applied to shechita, or whether they represent an encroachment on the Applicants’ right to freedom of religion under subsection 2(a) of the Charter, or whether the requirement is discriminatory under section 15 of the Charter.
III. Analysis A. The test for injunctive relief [30] In R v Canadian Broadcasting Corp, 2018 SCC 5 at paragraph 12 [CBC], the Supreme Court of Canada [SCC] restated the applicable test in motions for injunctive relief, and re-affirmed the three-part test previously set out in Manitoba (Attorney General) v Metropolitan Stores Ltd, [1987] 1 SCR 110, 1987 CanLII 79 (SCC) [Metropolitan Stores] and RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311 at 334, 1994 CanLII 117 (SCC) [RJR]. The test requires an applicant to demonstrate a “serious question to be tried,” in the sense that the application is neither frivolous nor vexatious; to convince the court that it will suffer irreparable harm if the relief is refused; and that on an assessment of the balance of convenience, the applicant will suffer greater harm than the respondent from the granting or refusal of the injunction.
[31] These requirements are conjunctive and failure to demonstrate any of the three elements of the test is fatal to the motion (Canada (Citizenship and Immigration) v Ishaq, 2015 FCA 212 at para 15). However, the three prongs of the test are not watertight compartments. The three prongs are flexible and interrelated, should be considered together and inform the holistic approach of the Court’s discretion in a particular case. Indeed, the prima facie strength of the case on the merits may affect the Court’s consideration of irreparable harm and the balance of convenience at the other stages (The Regents of University of California v I‑Med Pharma Inc, 2016 FC 606 at para 27, aff’d 2017 FCA 8; Merck 7 Co Inc v Nu-Pharm Inc, 4 CPR (4th) 464 at para 13, 2000 CanLII 14758 (FC); Wasylynuk v Canada (Royal Mounted Police), 2020 FC 962 at para 135 [Wasylynuk]; British Columbia (Attorney General) v Alberta (Attorney General), 2019 FC 1195 at para 97, rev’d on other grounds 2021 FCA 84; Indigenous Police Chiefs of Ontario v Canada (Public Safety), 2023 FC 916 at para 71 [Indigenous Police Chiefs of Ontario]; Kent Roach, Constitutional Remedies in Canada, 2nd ed (Toronto: Thomson Reuters, 2023) (loose-leaf release 2) §7:4 at 7-10, 7-12, 7-18, 7-19 [Roach, Constitutional Remedies]).
[32] The decision to grant an interlocutory injunction is discretionary (CBC at para 27). In the end, “[t]he fundamental question is whether the granting of [injunctive relief] is just and equitable in all of the circumstances of the case. This will necessarily be context-specific” (Google Inc v Equustek Solutions Inc, 2017 SCC 34 at para 25 [Google]). In sum, Google instructs that, in exercising their discretion, “courts need to be mindful of overall considerations of justice and equity, and that the RJR-MacDonald test cannot be simply boiled down to a box-ticking exercise of the three components of the test” (Indigenous Police Chiefs of Ontario at para 72).
[33] On the application of the three-part test set in Metropolitan Stores, the SCC has held that on the first branch of the test, whether there is a “serious question,” “a preliminary and tentative assessment of the merits of the case” is a low threshold and only requires the court to determine that the issue is not frivolous or vexatious (Metropolitan Stores at 127–128; RJR at 337–338; Perry v Cold Lake First Nations, 2016 FC 1081 at para 9; Bellegarde v Carry the Kettle First Nation, 2023 FC 129 at para 21; AC and JF v Alberta, 2021 ABCA 24 at para 21 [AC and JF]). The Court should not engage in an extensive review of the merits, because of the relative complexity of constitutional adjudication, the limited and incomplete evidentiary record and legal submissions, and the short time allowed to the Court in determining whether injunctive relief ought to be granted. There are no specific requirements to be met in order to meet this low threshold; the judge must simply conclude that the issues raised are “neither frivolous nor vexatious” (RJR at 337–338; AC and JF at paras 21–22, 24; Indigenous Police Chiefs of Ontario at para 78; Letnes v Canada (Attorney General), 2020 FC 636 at para 40 [Letnes]). The demonstration of a single serious issue suffices to meet the first part of the test (Jamieson Laboratories Ltd v Reckitt Benckiser LLC, 2015 FCA 104 at para 26; Indigenous Police Chiefs of Ontario at para 76).
[34] In the Charter context, a decision on injunctive relief is not indicative of eventual success after a full examination of the merits at trial or on an application, because the Court does not have a full record on which to assess the claim. Many examples illustrate that decisions on interlocutory relief do not always coincide with the ultimate decision on the merits. For example, in RJR, the SCC initially refused interlocutory relief, but later found some of the impugned provisions to be a breach of freedom of expression in RJR-MacDonald Inc v Canada (Attorney General), [1995] 3 SCR 199, 1995 CanLII 64 (SCC). On the other hand, the SCC granted injunctive relief suspending the application of laws limiting third party spending during an election in Harper v Canada (Attorney General), 2000 SCC 57 [Harper], but later lifted that relief because the limits constituted reasonable limits on freedom of expression in Harper v Canada (Attorney General), 2004 SCC 33.
[35] The SCC also indicated that in the Charter context, a more lenient approach can be taken on the merits because any potential justification under section 1 of the Charter may be considered later under the third step of the test, in the assessment of the balance of convenience (RJR at 333–334; Roach, Constitutional Remedies, §7:4 at 7-10–7-12). Indeed, “the complex nature of most constitutional rights means that a motions court will rarely have the time to engage in the requisite extensive analysis of the merits of the applicant’s claim” (RJR at 337). A relatively weak Charter claim may still represent a serious question that is not frivolous or vexatious and therefore meet the first part of the test (AC and JF at para 30). The fact that the potential breach has not been conclusively established should not disqualify access to injunctive relief (Roach, Constitutional Remedies, §7:4 at 7-10–7-13).
[36] Although the test for a serious question is not onerous, given that constitutional issues are complex and the Court does not benefit from a complete evidentiary record nor of adequate time to fully canvass the issues, the Court must still engage with the jurisprudence and be sensitive to case law that may undermine the applicant’s Charter claim (Roach, Constitutional Remedies, §7:4, at 7-17). On the other hand, the presumption of constitutional validity of a government’s impugned measure with Charter rights is not relevant for injunctive relief (Metropolitan Stores at 122; AC and JF at paras 20, 35; Roach, Constitutional Remedies, §7:7 at 7-23, 7-24, 7-44; Robert J Sharpe & Kent Roach, The Charter of Rights and Freedoms, 7th ed (Toronto: Irwin Law, 2021), ch 18 at 508 [Sharpe & Roach, The Charter of Rights and Freedoms]).
[37] On the second branch of the test, the only issue is whether a refusal to grant relief would adversely affect the Applicants’ interests, and cause them to suffer any harm, in a manner that could not be compensated in damages if the decision on the merits vindicates their claims (RJR at 334, 341).
[38] Evidence of irreparable harm must be more than speculations or mere assertions, cannot be inferred, and if it occurs, cannot be compensated or remedied by damages (Air Passengers Rights v Canada (Transportation Agency), 2020 FCA 92 at para 30, leave to appeal to SCC refused, 39266 (23 December 2020); Canada (Attorney General) v Oshkosh Defense Canada Inc, 2018 FCA 102 at paras 24–25; Gateway City Church v Canada (National Revenue), 2013 FCA 126 at paras 13–16; Haché v Canada, 2006 FCA 424 at para 11). It is the nature of the harm, not its magnitude, that is important. It is harm which “either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other” (Metropolitan Stores at 128; RJR at 341, 348; Letnes at para 49).
[39] To meet the test, the Applicants must provide a sound evidentiary basis for the Court to assess the alleged irreparable harm. The Applicants must adduce “evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted” (Glooscap Heritage Society v Canada (National Revenue), 2012 FCA 255 at para 31 [Glooscap]).
[40] The fact that the Applicants are alleging violations of constitutional rights does not modify this evidentiary requirement (International Longshore and Warehouse Union, Canada v Canada (Attorney General), 2008 FCA 3 at paras 23, 26). However, in Charter cases, even a quantifiable financial loss may be considered irreparable harm given the difficulty of recovering damages at the merits in such cases (Metropolitan Stores at 128; RJR at 341–342). It may not be possible to conclude whether damages could properly compensate any Charter violation, and if it is possible, evaluate any quantum of damages necessary to fully repair the breach of intangible values protected by the Charter. The irreparable harm branch of the test is therefore often not onerous in Charter cases (Sharpe & Roach, The Charter of Rights and Freedoms, ch 18 at 508). As proposed by Roach in Constitutional Remedies at §7:8 at 7–25: “[f]or the purposes of constitutional remedies, irreparable harm should be related not to whether an injury can be compensated in damages per se, but rather to whether the interests and purposes of the Charter will be irreparably harmed.” Indeed, in 143471 Canada Inc v Quebec (Attorney General), [1994] 2 SCR 339 at 380, 382, 1994 CanLII 89 (SCC) [143471 Canada], Justice Corry, also writing for Justices Sopinka and Iacobucci (with Lamer CJC concurring on other grounds without specifically addressing the issue), opined that the loss of privacy interest, contrary to section 8 of the Charter, “would, in itself, constitute irreparable harm” (at 380).
[41] Moreover, irreparable harm has been demonstrated in the context of an impact on minority language communities (and their culture) protected under section 23 of the Charter (Commission Scolaire Francophone v Northwest Territories (Attorney General), 2008 NWTSC 53 [Commission Scolaire Francophone]; Procureur général du Québec c Quebec English School Board Association, 2020 QCCA 1171), and in the context of freedom of religion and equality rights under subsection 2(a) and section 15 of the Charter by the requirement to remove religious coverings to receive public services (National Council of Canadian Muslims (NCCM) c Attorney General of Quebec, 2017 QCCS 5459; National Council of Canadian Muslims (NCCM) c Attorney General of Québec, 2018 QCCS 2766; Roach, Constitutional Remedies, §7:8 at 7-29, 7-30; but see also Hak c Procureure générale du Québec, 2019 QCCA 2145, leave to appeal to SCC refused, 39016 (9 April 2020), which is distinguishable because the injunction was denied on the basis of the balance of convenience branch of the test, and the application of section 33 of the Charter rendered the serious question to be tried in relation to freedom of religion inapplicable). In non-Charter claims, irreparable harm has been established when the alleged breach puts at risk an applicant and their community’s culture, traditions and way of life (Namgis First Nation v Canada (Fisheries, Oceans and Coast Guard), 2018 FC 334 at paras 93–94 [Namgis]).
[42] In the Charter context, the SCC has indicated that an applicant may normally be able to satisfy the first two steps of the test and establish that their Charter claim is not frivolous or vexatious, and that irreparable harm arises from a Charter violation. Injunctive relief will often fail at the third branch of the test, because the public interest will then be balanced against the applicant’s claim and support the continued application of the government’s measure. However, the applicant may also be able to demonstrate that injunctive relief will equally serve the public interest or will at least not constitute or contribute to any harm (Roach, Constitutional Remedies, §7:2 at 7-7, 7-8, relying on RJR and 143471 Canada).
[43] On the third branch of the test, the Court must determine which of the parties will suffer the greater harm from the granting or refusal of the interlocutory injunction, until a final decision is made on the merits (RJR at p 342). At this stage, the factors to be considered in assessing the balance of convenience are numerous and vary with each individual case (RJR at 342, 349).
[44] The interest of the public is an important factor to be taken into account at the stage of balance of convenience and “includes both the concerns of society generally and the particular interests of identifiable groups” (RJR at 344; AC and JF at para 23). When a public authority is involved, it is assumed that the public authority and the existing regulatory framework represents the public interest and the onus of demonstrating that the balance of convenience lies against the public interest rests with the private parties (RJR at 344; Indigenous Police Chiefs of Ontario at para 145-146; Roach, Constitutional Remedies, §7:12 at 7-42).
[45] In Charter matters, the evaluation of the competing risks between an applicant’s Charter rights and the government’s interest can be better assessed under the balance of convenience test. The required holistic assessment of the three-part test may allow the Court, at the third stage, to examine considerations of proportionality between the competing interests within their proper specific contexts, in determining whether injunctive relief is “just and equitable in all of the circumstances of the case” (Google at para 25).
[46] This onus will usually not be met if there is an indication that the action taken by the authority charged with the duty of promoting or protecting the public interest is undertaken pursuant to that responsibility (Letnes at para 83; Power Workers Union v Canada (Attorney General), 2022 FC 73 at paras 112, 117). The Court should, in most cases, presume that an injunction restraining the public authority’s actions will cause irreparable harm to the public interest. Validly enacted government measures must be presumed to serve the public interest as well as a legitimate purpose (Harper at para 9; Ahousaht First Nation v Canada (Fisheries), 2019 FC 1116 at paras 126–128 [Ahousaht]).
[47] As stated, injunctive relief often fails at the third branch of the test, because the public interest supports the continued application of the government’s measure. However, an applicant may succeed in demonstrating that the relief requested will equally serve the public interest or that it will not harm the public’s interest (Roach, Constitutional Remedies, §7:2 at 7-7, 7-8, relying on RJR and 143471 Canada; see also Roach, Constitutional Remedies, §7:12 at 7-46, 7-58.1–7-59). Moreover, the public interest includes both the interests of society at large, but also those of individuals and minority communities (see Reference Re Secession of Québec, [1998] 2 SCR 217 at paras 79–82, 1998 CanLII 793 (SCC)).
[48] In the end, the Court must assess the respective harms resulting from the granting or refusal of injunctive relief, and may apply, when possible, proportionality as a remedial principle and allow the least drastic remedy possible that both protects the applicant against irreparable harm, while at the same time preserving the public interest as much as possible.
B. The Respondent’s arguments that the Applicants’ request is a mandatory injunction and that the relief sought has no practical utility [49] The Respondent argues that the Applicants are seeking a mandatory injunction and must therefore demonstrate more than a serious issue to be tried. Relying on CBC at paragraphs 13–15, the party seeking a mandatory injunction must show a “strong prima facie case.” A mandatory injunction is an injunction that requires the respondent to do something, as opposed to an injunction that merely prohibits the respondent from doing something.
[50] The Respondent argues that the orders sought by the Applicants amount to a mandatory injunction since they would require the CFIA to take positive actions. In the Respondent’s view, the injunction would require the CFIA to modify and publish a new version of the Guidelines, and remove the three indicators of unconsciousness. The CFIA would need to train its inspectors on the changes made to the Guidelines and to communicate with relevant licence holders to inform them of the modified Guidelines.
[51] The Respondent also argues that an injunction should not be issued, because the ultimate remedy sought by the Applicants has no practical utility and cannot be granted by the Court. Relying on Little Sisters Book and Art Emporium v Canada (Minister of Justice), 2000 SCC 69 at paragraphs 70–71, 85, the Respondent argues that because the Guidelines are not binding, a declaration of unconstitutionality would have no value as the source of unconstitutionality must reside in a statutory provision and not in non-binding manuals or guides.
[52] Moreover, in the Respondent’s view, a declaration would not have any effect as it will not settle a “live controversy” between the parties (relying on Shot Both Sides v Canada, 2024 SCC 12 at paras 67–69; Ewert v Canada, 2018 SCC 30 at para 81; Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12 at para 11), because the slaughterhouses that have ceased production have made no commitment to resume, continue or increase their production of kosher beef or veal if the injunction is granted.
[53] I disagree.
[54] First, in my view, no “mandatory steps” are required by the CFIA under the remedy sought in this injunction. Rather, the remedy sought precludes the CFIA from strictly applying the Guidelines, essentially suspending its binding nature and application for ritual slaughter, and revert back to the situation applying before June 2023, only 13 months ago. Indeed, the Applicants seek to preserve the status quo existing prior to 2019 when the Guidelines were drafted, and the regulatory environment that existed prior to June 2023 when the CFIA was still not strictly enforcing the Guidelines. The Applicants therefore aim to prevent the Respondent from doing something, namely, to require licence holders to strictly abide by the Guidelines.
[55] Moreover, since the Guidelines are allegedly non-binding, and the licence holders may choose other effective methods, there is no requirement for CFIA to modify and publish a new version of the Guidelines, nor to train its inspectors, because licence holders are already allowed to use other methods that may not be within the existing expertise of inspectors. The evidence relied upon by the Respondent to allege that the CFIA would have to take positive action is also unconvincing. Paragraphs 77–81 of the Affidavit of L-P Vaillancourt (Respondent’s Record, at pages 17–18) simply mention that under its normal mandate, the CFIA actively communicates with licence holders to promote best practices and compliance with regulatory requirements. The injunction sought in this case would not have any specific “mandatory” impact, other than to have the CFIA simply continue to attend slaughterhouses, communicate and discharge its regulatory mandate under the SFCR. There is also no evidence of the necessity to publish a new version of the Guidelines, or what “training” would be required of the inspectors if the Guidelines were suspended. Indeed, the CFIA inspectors have applied section 143 of the SFCR for many years in the context of kosher slaughtering, and there is no extensive evidence of systemic non-conformity in relation to the suspension of conscious food animals (including in the Affidavit of L-P Vaillancourt, Exhibit LPV-7, Respondent’s Record, at page 325 which does note some non-compliance in relation to sensitivity assessments, but except for Establishment C, was mostly not related to the actual suspension of a conscious food animal contrary to section 143 of the SFCR).
[56] In oral argument, the Respondent argued that an injunction in this case would be mandatory in nature because the CFIA would have to inform its inspectors, as well as the licence holders, that the Guidelines had been suspended. In my view, even if that element may represent a “mandatory aspect” of the order sought by the Applicants, this “mandatory aspect” is incidental to the order and not sufficiently important to require the Applicants to prove a “strong prima facie case” (West Moberly First Nations v British Columbia, 2018 BCSC 1835 at paras 226, 231–235).
[57] Finally, an injunction does not automatically become a “mandatory” one merely because it requires a respondent to do something, instead of prohibiting an act. In some cases, an injunction aims at maintaining the status quo, which requires the continuation of an existing practice. For example, in AC and JF, the applicants sought injunctive relief from the application of changes to the Alberta Support, Financial Assistance program, where the changes reduced admissibility to financial support up to the age of 22, when that admissibility was previously up to the age of 24. The applicants argued that the reduction in the availability of financial support was in breach of their rights under sections 7 and 12 of the Charter, and sought injunctive relief to preserve the status quo, requiring the continuation of prior practice by the government. The Alberta Court of Appeal (albeit ultimately dismissing the injunction) applied the criteria set out in RJR of a “serious question to be tried” (the lower threshold), and not the “strong prima facie case” for mandatory injunctions, even if the order required Alberta to take positive action and continue the financial support that existed previously (thereby preserving the status quo existing before the changes to the program were adopted) (AC and JF at paras 19–26, 30).
[58] It is also important to mention that in AC and JF, the Alberta Court of Appeal also opined that in CBC, the SCC applied a higher threshold of a “strong prima facie case” for a mandatory injunction in the non-Charter context. The Alberta Court of Appeal questioned the application of that threshold in the context of injunctive relief under the Charter, regardless of whether the nature of the relief was a mandatory injunction (AC and JF at paras 24–30; see also Roach, Constitutional Remedies, §7:4 at 7-13 to 7-16 where the author also opines that the CBC test for mandatory injunctions should not apply in the Charter context).
[59] In this case, I do not need to opine on the matter as I conclude that the relief sought does not amount to a “mandatory injunction,” and that any “mandatory” action required of the CFIA is ancillary to the relief, and merely requires the CFIA to continue to implement its mandate.
[60] In any event, the injunctive relief in this case is seeking to maintain the status quo existing before June 2023 when the CFIA was not issuing non-compliance measures for the failure to apply the three indicators of unconsciousness, but rather implemented its regular mandate to enforce the SFCR, communicate and promote best practices. The injunctive relief therefore seeks a prohibition on the CFIA from applying the Guidelines, which it did not do prior to June 2023 despite its existence.
[61] To the extent that injunctive relief, and the status quo, requires the CFIA to continue its earlier practice in applying section 143 of the SFCR, the requirement to continue earlier practice does not constitute a “mandatory injunction” as understood in CBC or in case law requiring, for example, that the government incur additional expenditures of monies to provide modular classroom spaces to a minority school in order to protect the minority community from irreparable harm (Commission Scolaire Francophone).
[62] Second, regarding the Respondent’s argument that any declaration in this case would have no practical utility, I am satisfied that there is sufficient evidence that licence holders do, in fact, consider the Guidelines as binding, and if they are informed that the CFIA will not strictly impose the use of the three indicators of unconsciousness, are prepared to resume the production of kosher meat. Therefore, the Court is able to provide a remedy, by declaration, on the binding nature of the Guidelines and the validity of their use as a regulatory requirement by the CFIA.
[63] Contrary to what the Respondent asserts, the Guidelines, while not “binding” in the sense that it is incorporated by reference as a regulation, are clearly binding from a practical and pragmatic standpoint. The Guidelines are aimed at licence holders and CFIA inspectors, and indicate that the use of the three indicators of