Letnes v. Canada (Attorney General)

Letnes v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2020-05-25
Neutral citation
2020 FC 636
File numbers
T-343-19
Decision Content
Date: 20200525
Docket: T-343-19
Citation: 2020 FC 636
Ottawa, Ontario, May 25, 2020
PRESENT: Mr. Justice Gascon
BETWEEN:
CORPORAL RYAN THOMAS LETNES
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. Overview
[1] The Applicant, Corporal Ryan Thomas Letnes, is a serving member of the Royal Canadian Mounted Police [RCMP]. Following his most recent reassignment due to his visual limitations, Cpl. Letnes filed a complaint to the Canadian Human Rights Commission [Commission] under the Canadian Human Rights Act, RSC 1985, c H-6 [CHRA], in which he alleged discrimination in the RCMP’s promotion process based on a disability [Complaint]. Further to its investigation, the Commission referred the Complaint to the Canadian Human Rights Tribunal [CHRT], which initiated an inquiry in January 2018. The matter is still pending and no hearing date has yet been set by the CHRT.
[2] Since then, Cpl. Letnes has been designated medically unfit for any duty within the RCMP because of his medical condition. The designation meant that the RCMP could begin the internal administrative process to discharge Cpl. Letnes.
[3] Further to an application filed before this Court in February 2019 [Application], Cpl. Letnes seeks an interlocutory injunction, pursuant to section 44 of the Federal Courts Act, RSC 1985, c F-7 [FC Act] and subsection 7(a) of the CHRA, to prevent the RCMP from discharging him pending the resolution of his Complaint before the CHRT. He asks the Court to grant him relief in the nature of a quia timet order or, in the alternative, a prohibition order barring the RCMP from discharging him due to a mental or physical disability as defined in the CHRA or from subjecting him to the Employment Requirements [ER] process. This ER process is set out in the Commissioner’s Standing Orders (Employment Requirements), SOR/2014-292 [ER Order]. Cpl. Letnes seeks further relief in the form of an interlocutory injunction prohibiting the reliance, application and/or usage of subsection 6(a) of ER Order until such time that this subsection’s constitutional validity is decided in two other files before the Court, namely Kevin Douglas Picard v Attorney General of Canada et al. (T-1803-18) [Picard] and Christopher Williams v Attorney General of Canada et al. (T-407-19).
[4] Cpl. Letnes submits that the Court has the jurisdiction to issue the requested injunction pursuant to section 44 of the FC Act and that he satisfies each prong of the conjunctive three-part test set forth by the Supreme Court of Canada [SCC] in RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311 [RJR-MacDonald] for the issuance of interlocutory injunctions. He claims that: 1) a serious issue to be tried has been raised in his underlying Complaint; 2) he will suffer irreparable harm if the interlocutory injunction is not granted; and 3) the balance of convenience, which compares the harm he will suffer to the harm done to the RCMP, as well as the public interest, favours him.
[5] The Attorney General of Canada [AGC] responds that section 44 of the FC Act cannot serve to prohibit the RCMP from continuing its administrative discharge process and that, in any event, Cpl. Letnes has not met any of the three parts of the RJR-MacDonald test. The AGC submits that there is no serious issue to be tried and that Cpl. Letnes’ alleged harm is entirely speculative in nature. The AGC adds that Cpl. Letnes’ Application is not about preventing the carrying out of a decision made by the RCMP on Cpl. Letnes’ discharge, but about prohibiting the RCMP from conducting its own discharge process altogether. The AGC pleads that seeking such an injunction at this time is premature.
[6] In this Application, the Court is not tasked with deciding the merits of Cpl. Letnes’ Complaint before the CHRT, but with assessing whether Cpl. Letnes satisfies the requirements to be granted an interlocutory injunction preventing the continuation of the RCMP’s discharge process. There are two issues to be determined: 1) whether section 44 of the FC Act can apply in the circumstances; and, 2) whether Cpl. Letnes meets the well-established tripartite test to obtain injunctive relief.
[7] Further to my review of the parties’ written and oral submissions and of the evidence, I am not satisfied that Cpl. Letnes has met the applicable conditions for the issuance of the interlocutory injunction he is seeking. Even if it is assumed that the Court has jurisdiction pursuant to section 44 of the FC Act and that there is a serious issue to be tried, Cpl. Letnes has failed to demonstrate that he will suffer irreparable harm if the injunction is not granted and if the RCMP continues the discharge process it has undertaken. Furthermore, the balance of convenience does not tilt in his favour. The Application is premature since the decision on Cpl. Letnes’ discharge has yet to occur and, in the absence of exceptional circumstances, the Court should not interfere with the ongoing administrative process before the RCMP until this process has been completed. In the circumstances, I conclude that this is not an exceptional situation where it would be just and equitable for the Court to intervene. Cpl. Letnes’ Application for an injunction will therefore be dismissed.
II. Background
A. Factual context
[8] Cpl. Letnes has been employed by the RCMP since October 2, 2000. Cpl. Letnes suffers from an irregular astigmatism, neurotrophic cornea, tear duct deficiency and forme frust keratoconus. He was diagnosed as having a 20/320 uncorrected vision. In February 2014, due to his uncorrected vision, his medical profile within the RCMP was changed from an operational profile to a non-operational V4 vision medical profile. He was then placed in an undefined administrative role to accommodate his visual disabilities.
[9] In August 2016, Cpl. Letnes filed his Complaint against the RCMP, alleging discrimination based on his disability. He claims that he was denied promotional opportunities within the RCMP due to his inability to meet the minimal visual acuity standard. The RCMP responds that the minimal visual acuity standard is a bona fide occupational requirement of the job for RCMP members engaged in operational policing. Cpl. Letnes’ Complaint is currently before the CHRT following the Commission’s referral.
[10] In December 2018, Cpl. Letnes was assigned a “06” medical profile with no end date, which means that he is medically unfit for duty in any role within the RCMP. This designation further means that the RCMP can begin the process to discharge Cpl. Letnes on the basis of having a disability, as defined by the CHRA, that cannot be accommodated absent undue hardship. At the time of the hearing before this Court, no decision to discharge Cpl. Letnes had yet been made by the RCMP. Cpl. Letnes is currently on medical leave from his assignment with the RCMP.
[11] I pause to note that Cpl. Letnes has not filed any application for judicial review before the Court pursuant to section 18 of the FC Act, whether in respect of a decision to be rendered by the RCMP on his discharge or in respect of the Complaint to be determined by the CHRT. Cpl. Letnes’ Application is what has been described as a “free-standing” application for an interlocutory injunction pursuant to section 44 of the FC Act.
B. Relevant provisions
[12] The Commissioner of the RCMP is responsible for human resources management within the RCMP. Pursuant to paragraph 20.2(1)(g) of the Royal Canadian Mounted Police Act, RSC 1985, c R-10 [RCMP Act], the Commissioner or one of his delegates “may” notably discharge or demote any member, other than a Deputy Commissioner, “for reasons other than a contravention of any provision of the Code of Conduct”.
[13] The ER Order, which is one of the regulations adopted by the Governor in Council respecting the exercise of the Commissioner’s powers under paragraphs 20.2(1)(a) to (g) of the RCMP Act, provides at its paragraph 6(a) that reasons other than a contravention of any provision of the Code of Conduct include “having a disability”, as the term is defined in the CHRA.
[14] The process to be followed to discharge or demote RCMP members is detailed in the ER Order. Paragraph 8(1)(b) of the ER Order notably provides that the decision maker must cause a notice to be served on a member if the decision maker intends to discharge or demote the member under paragraph 20.2(1)(e) or (g) of the RCMP Act. Once the decision maker has sufficient information, he or she must make one of the decisions listed in subsection 12(1) of the ER Order, which includes retaining the member, discharging the member under paragraph 20.2(1)(e), (g) or (k) of the RCMP Act, or demoting the member, subject to any conditions that the decision maker may impose. Finally, paragraph 20(2)(c) of the ER Order provides that a member aggrieved by a written decision under paragraph 20.2(1)(e) or (g) of the RCMP Act to discharge or demote him or her may seek redress by means of an appeal of the decision in accordance with the Commissioner’s Standing Orders (Grievances and Appeals), SOR/2014-289 [Appeals Order].
III. Analysis
A. Section 44 of the FC Act
[15] Cpl. Letnes first submits that, pursuant to section 44 of the FC Act, the Court has jurisdiction to hear his Application and, more generally, to issue interim injunctive relief in matters arising from proceedings before the CHRT. Relying on the SCC decision in Canada (Human Rights Commission) v Canadian Liberty Net, [1998] 1 SCR 626 [Canadian Liberty Net], Cpl. Letnes argues that Parliament entrusted the Court with a general supervisory role over CHRT proceedings. He claims that, in this context, the Court may grant an injunction “[i]n addition to any other relief” even in the event that the substance of the dispute remains to be determined by a different decision maker. As such, Cpl. Letnes argues that, through section 44 of the FC Act, Parliament intended to grant to the Court a general administrative jurisdiction over all federal boards and tribunals.
[16] The AGC responds that, in Canadian Liberty Net and other similar cases where section 44 of the FC Act was relied on, the Court was asked to supervise and oversee the CHRA process and proceedings before the CHRT. However, in the case at bar, Cpl. Letnes is relying on his Complaint against the RCMP not as a means to supervise the ongoing proceedings before the CHRT, but as a means to supervise how the RCMP manages Cpl. Letnes’ services within its own organization. The AGC further argues that, in Canadian Liberty Net, the Court was asked, through the recourse under section 44 of the FC Act, to prohibit individuals from engaging in the same defamatory conduct that was at issue before the CHRT. Here, says the AGC, the issues raised in Cpl. Letnes’ Complaint to the CHRT and in the RCMP’s discharge process are not identical.
[17] I agree with the AGC that the situation of Cpl. Letnes can be distinguished from the facts underlying Canadian Liberty Net and its progeny. In the present case, Cpl. Letnes is effectively trying to stop the RCMP from doing what it is enabled to do under its own legislation governing its relationships with its employees (i.e., conducting a discharge process), rather than trying to obtain an interlocutory injunction to restrain a conduct pending the disposition of an inquiry into that specific conduct by the CHRT. Stated otherwise, Cpl. Letnes is asking the Court to issue an injunction to prevent the RCMP from discharging him, while his complaint before the CHRT relates to denied promotion opportunities attributable to an alleged discrimination based on Cpl. Letnes’ physical disability.
[18] However, I am not prepared to conclude that the Court could not have jurisdiction in this matter under section 44 of the FC Act and that Cpl. Letnes did not have the option of bringing his request for an injunction under that provision. True, section 44 of the FC Act can be and has been relied on to supervise and oversee the CHRA process. But, I am not persuaded that this constitutes the only type of situations where the Court can have jurisdiction to grant relief under that provision.
[19] Section 44 of the FC Act reads as follows.
Mandamus, injunction, specific performance or appointment of receiver
44 In addition to any other relief that the Federal Court of Appeal or the Federal Court may grant or award, a mandamus, an injunction or an order for specific performance may be granted or a receiver appointed by that court in all cases in which it appears to the court to be just or convenient to do so. The order may be made either unconditionally or on any terms and conditions that the court considers just.
Mandamus, injonction, exécution intégrale ou nomination d’un séquestre
44 Indépendamment de toute autre forme de réparation qu’elle peut accorder, la Cour d’appel fédérale ou la Cour fédérale peut, dans tous les cas où il lui paraît juste ou opportun de le faire, décerner un mandamus, une injonction ou une ordonnance d’exécution intégrale, ou nommer un séquestre, soit sans condition, soit selon les modalités qu’elle juge équitables.
[20] In Canadian Liberty Net, the SCC established that section 44 of the FC Act empowers the Court to issue free-standing interim injunctive relief even in situations where the merits of the underlying case, action or application will be heard by another decision maker who cannot issue injunctions (Pier 1 Imports (U.S.), Inc. v Canada (Public Safety and Emergency Preparedness), 2018 FC 963 [Pier 1 Imports] at para 48). Pursuant to the language of section 44, the Court can do so “in all cases in which it appears to [it] to be just or convenient”. In other words, the Court has residual jurisdiction to grant a free-standing injunction even if the final disposition of the dispute is left to an administrative decision maker and is not before the Court.
[21] In Canadian Liberty Net, the application under section 44 of the FC Act was made in the context of circumstances involving complaints made under the CHRA and proceedings before the Commission and the CHRT. In that matter, the Commission had received complaints from the public regarding telephone messages of anti-Semitic nature made available by an organization advertising itself as Canadian Liberty Net. Callers to the Canadian Liberty Net phone number were offered a menu of telephone messages to choose from by subject area, including white supremacist and anti-Semitic messages. After investigating the content of the said messages, the Commission requested that the CHRT decide whether these messages constituted a discriminatory practice under subsection 13(1) of the CHRA. The Commission then applied to the Court for an injunction prohibiting Canadian Liberty Net from making any such messages available until the CHRT rendered a final order on its request.
[22] In the underlying first-instance decision (Canadian Liberty Net v Canada (Human Rights Commission), [1992] 3 FC 155, 90 DLR (4th) 190, aff’d [1998] 1 SCR 626 [Canadian Liberty Net FC]), the Court granted the injunction after concluding that it had the jurisdiction to grant free-standing interlocutory injunctions to restrain the conduct of a party pending the disposition of an inquiry into that conduct by the CHRT (Canadian Liberty Net FC at pp. 14-15). The SCC confirmed that the Court had jurisdiction to issue an injunction in support of the prohibitions contained in the CHRA. The majority of the SCC concluded that, under section 44 of the FC Act, the Court may grant an injunction “[i]n addition to any other relief” even in the event that the dispute’s substance is to be determined by another decision maker (Canadian Liberty Net at para 20). The SCC explained that the introductory words of section 44 do not constitute a clause of limitation, and that the general statement in section 3 of the FC Act describing the Court’s status as “a superior court of record having civil and criminal jurisdiction”, combined with the many powers of supervision, control, and enforcement of this and numerous other tribunals, indicates that section 44 is a power-conferring section (Canadian Liberty Net at paras 21, 24).
[23] Other decisions from the Court have applied the SCC’s interpretation of section 44 of the FC Act and confirmed the Court’s jurisdiction to issue a free-standing interlocutory injunction in certain circumstances involving a process before the Commission or the CHRT (Toutsaint v Canada (Attorney General), 2019 FC 817 [Toutsaint] at para 65; Colasimone v Canada (Attorney General), 2017 FC 953 [Colasimone] at para 7; Drennan v Canada (Attorney General), 2008 FC 10 [Drennan] at para 23; Canadian Human Rights Commission v Winnicki, 2005 FC 1493 [Winnicki] at paras 17-22). In Winnicki, for instance, the Court granted an injunctive relief in the context of its supervisory role over the CHRT to prevent ongoing hate speech, a situation very similar to the facts in Canadian Liberty Net.
[24] In Canadian Liberty Net, the SCC also observed that “the decisions and operations of the [CHRT] are subject to the close scrutiny and control of the Federal Court” (Canadian Liberty Net at para 37). Therefore, what triggered the Court’s jurisdiction under section 44 of the FC Act to issue a free-standing injunction in aid of the CHRT process was the Court’s jurisdiction to review the CHRT’s decisions and to supervise the CHRT (Pier 1 Imports at para 49). That jurisdiction flows from the fact that the CHRT is a “federal board, commission or other tribunal”, as defined in section 2 of the FC Act.
[25] I further note that, in the context of an underlying complaint before the Commission or the CHRT, this Court has assumed that it had jurisdiction to issue an injunction under section 44 of the FC Act in matters where the injunction sought to prohibit or require certain conduct from another federal board or tribunal, namely the Correctional Service of Canada [CSC] (Toutsaint at para 65; Colasimone at para 7; Drennan at para 23). As such, according to the broad interpretation of section 44 of the FC Act recognized in these cases involving CHRT proceedings, the Court considered that it had jurisdiction to consider a request for the issuance of a free-standing interlocutory injunction against another federal board or tribunal.
[26] I acknowledge that, normally, decisions of a federal board or tribunal will only be challenged by way of an application for judicial review. In the context of such judicial review, an applicant could bring a motion, pursuant to section 18 of the FC Act and Rule 373 of the Federal Courts Rules, SOR/98-106 [Rules], to be granted an interlocutory injunction. However, I am not persuaded that section 44 of the FC Act cannot also apply and cannot be used to seek a mandamus, an injunction or an order for specific performance against a federal board or tribunal in situations where the Court has a supervisory relationship vis-à-vis such federal board or tribunal that would be similar to the relationship between the Court and the CHRT described in Canadian Liberty Net.
[27] As stated above, I accept that the situation in the present case is significantly different from Canadian Liberty Net: the application for an interlocutory injunction is directed at the RCMP and its administrative process to discharge Cpl. Letnes, and it does not arise within the strict limits of the CHRT process as in Canadian Liberty Net or Winnicki. However, a parallel can be drawn between the present case and situations where, in the context of the Commission or CHRT proceedings, the Court saw no obvious impediment to assume jurisdiction over another federal board or tribunal further to an application made under section 44 of the FC Act. As acknowledged by the AGC, it is not disputed that the RCMP is a federal board within the meaning of section 2 of the FC Act.
[28] In fact, Cpl. Letnes’ situation is reminiscent of the procedural context in Toutsaint, where the Court declined to issue an interlocutory injunction against the CSC pending the outcome of a CHRT proceeding. In that case, Mr. Toutsaint, an indigenous inmate, had been suffering from mental health illnesses and had a history of inflicting self-harm and suicide attempts. He was declared as a dangerous offender and sentenced to an indeterminate period of detention. Mr. Toutsaint had brought an application for a mandatory interlocutory injunction pursuant to section 44 of the FC Act, where he was asking the Court to intervene with the management of his incarceration by ordering the CSC to transfer him to a penitentiary that also served as a psychiatric centre, pending the outcome of his discrimination complaint filed with the Commission. The Court ultimately dismissed the application because Mr. Toutsaint had failed to meet the stringent requirements for the grant of an injunction.
[29] That being said, for the purpose of Cpl. Letnes’ Application, I do not have to decide this issue of jurisdiction and to determine whether the Court has a supervisory relationship vis-à-vis the RCMP that would be similar to the relationship between the Court and the CHRT described in Canadian Liberty Net. Even if section 44 of the FC Act awards jurisdiction to the Court to grant certain mandamus, injunction or specific performance orders, it does not change the conditions for issuing a remedy authorized by that section, nor does it in any way deal with the procedural support required to bring a remedy application before the Court (Habitations Ilot St-Jacques Inc. v Canada (Attorney General), 2017 FC 535 at para 45). In other words, the question of jurisdiction to grant an injunction under section 44 should not be conflated with the question of whether the conditions for granting such injunction and exercising such jurisdiction are met. As rightly pointed out by the AGC, the mere existence of a CHRT proceeding cannot be the sole basis upon which this Court can issue an interlocutory injunction under section 44 of the FC Act.
[30] In the present case, as detailed in the reasons below, the failure of Cpl. Letnes to meet the conditions of the test for interlocutory injunctive relief suffices to dismiss his Application and is determinative. I pause to underline that, in my view, the AGC’s arguments stating that section 44 of the FC Act does not apply to the RCMP essentially address the conditions for granting an injunction and exercising the Court’s jurisdiction in this specific case, rather than the scope of the Court’s jurisdiction under that section. I will therefore simply assume, without deciding the merits of the issue, that the Court has jurisdiction to consider Cpl. Letnes’ request for an interim injunctive relief against the RCMP under section 44 of the FC Act.
B. The tripartite injunction test
[31] On the conjunctive three-part test to determine interlocutory injunctions, Cpl. Letnes submits that all prongs of the RJR-MacDonald test are satisfied. Cpl. Letnes first claims that there is a serious issue to be tried since it cannot be reasonably argued that his claim before the CHRT is frivolous or vexatious, as the Commission recognized the existence of a prima facie case. Secondly, Cpl. Letnes argues that there is foreseeable irreparable harm in the sense that, if the injunction is not granted, the RCMP will be able to discharge him, which will cause loss of his employment and career at the RCMP, loss of reputation, and exacerbation of his mental health illnesses. Thirdly, Cpl. Letnes maintains that the balance of convenience lies in his favour as he is a vulnerable employee whereas RCMP is a sophisticated organization which would not suffer any negative impact to its operation if the interlocutory injunction were to be granted. He further asserts that public interest considerations also tilt the balance of convenience in his favour since all disabled members of the RCMP have a particular interest in the outcome of his Application (RJR-MacDonald at p 344).
[32] I do not agree. As the SCC noted in Canadian Liberty Net, the test for determining the existence of jurisdiction under section 44 of the FC Act must be distinguished from the appropriateness of exercising such jurisdiction in a particular case (Canadian Liberty Net at para 7). I am of the view that Cpl. Letnes’ case is not a situation where it would be appropriate for the Court to exercise its discretion to grant the injunction. More specifically, for the reasons detailed below, I find that Cpl. Letnes has not established that his request for an interlocutory injunction satisfies the stringent requirements of the conjunctive three-part test in RJR-MacDonald for two reasons. First, Cpl. Letnes has not provided clear and non-speculative evidence that irreparable harm will follow if no injunction is granted, as he will remain an RCMP member on medical leave pending the RCMP administrative discharge process. Second, the balance of convenience does not favour restricting the RCMP’s ability to manage its members and interfering in the RCMP’s ongoing administrative process before it is completed.
(1) The test for granting an interlocutory injunction
[33] It is trite law that, in order to succeed on a motion seeking an interlocutory injunction, the moving party must satisfy the well-known tripartite test set out by the SCC in RJR-MacDonald. The moving party must first establish, on a preliminary assessment of the merits of its case, that there is a serious issue to be tried; this generally means that the underlying action or application is neither frivolous nor vexatious (RJR-MacDonald at pp 334-335, 348). However, an elevated or heightened threshold may apply in certain particular circumstances, such as when a mandatory interlocutory injunction is sought. Second, the moving party must show that it will suffer irreparable harm if the interlocutory injunction is not granted. Third, the onus is on the moving party to establish that the balance of convenience, which contemplates an assessment of which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits, favours the granting of the interlocutory relief (R v Canadian Broadcasting Corp, 2018 SCC 5 [CBC] at para 12; see also Ahousaht First Nation v Canada (Fisheries and Oceans), 2019 FC 1116 [Ahousaht] at paras 48-53, Robinson v Attorney General of Canada, 2019 FC 876 [Robinson] at paras 56-82 and Okojie v Canada (Citizenship and Immigration), 2019 FC 880 [Okojie] at paras 61-93).
[34] At the outset, it is important to underline that an interlocutory injunction is an extraordinary and equitable relief. Moreover, a decision to grant or refuse an interlocutory injunction is a discretionary one (CBC at para 27). Given that an interlocutory injunction is an exceptional remedy, compelling circumstances are required to justify the intervention of the courts and the exercise of their discretion to grant the relief. The burden is on the moving party to demonstrate that the conditions of this exceptional remedy are met.
[35] The RJR-MacDonald test is conjunctive and all three elements of the test must be satisfied in order to grant relief. None of the branches can be seen as an “optional extra” (Janssen Inc. v Abbvie Corporation, 2014 FCA 112 [Janssen] at para 19), and a “failure of any of the three elements of the test is fatal” (Canada (Citizenship and Immigration) v Ishaq, 2015 FCA 212 [Ishaq] at para 15; Western Oilfield Equipment Rentals Ltd. v M-I L.L.C., 2020 FCA 3 [Western Oilfield] at para 7). That said, the three prongs of the test are not water-tight compartments, and they should not be assessed in total isolation from one another (The Regents of University of California v I-Med Pharma Inc, 2016 FC 606 at para 27, aff’d 2017 FCA 8; Merck & Co Inc v Nu-Pharm Inc (2000), 4 CPR (4th) 464 (FC) at para 13).
[36] In Google Inc v Equustek Solutions Inc, 2017 SCC 34 [Google], the SCC reminded that an overarching and fundamental objective animates the RJR-MacDonald test: the judge needs to be satisfied that, ultimately, granting the interlocutory injunctive relief is just and equitable, taking into consideration the particular circumstances of the case. The SCC in Google thus reinforces that, in exercising their discretion to grant an interlocutory injunction, the 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. The Court must therefore assess whether, in the end, granting the interlocutory injunction sought by Cpl. Letnes in his Application would ultimately be “just and equitable in all of the circumstances of the case”, which will “necessarily be context-specific” (Google at para 25).
[37] I add that the courts have repeatedly considered that the applicable test for interlocutory injunctions is the same as the test governing the granting of stays of proceedings (Manitoba (AG) v Metropolitan Stores Ltd, [1987] 1 SCR 110 at para 30; Toronto Real Estate Board v Commissioner of Competition, 2016 FCA 204 at para 11; Janssen at paras 12-17; Glooscap Heritage Society v Canada (National Revenue), 2012 FCA 255 [Glooscap] at para 4; International Charity Association Network v Canada (National Revenue), 2008 FCA 114 at para 5). No distinction therefore needs to be made between the principles developed for interlocutory stays or for interlocutory injunctions, and they are equally applicable in both contexts.
[38] An application for an interlocutory injunction like this one ultimately turns on its facts. When all the circumstances are considered, the Application materials and the evidence must convince the Court that, on a balance of probabilities, the three components of the test are met and that it is just and equitable to issue an injunction. I underline that, as the SCC stated in FH v McDougall, 2008 SCC 53 [McDougall], there is only one standard of proof in civil cases in Canada, and that is proof on a balance of probabilities (McDougall at para 49). The only legal rule in all cases is that “evidence must be scrutinized with care by the trial judge” to determine whether it is more likely than not that an alleged event occurred or is likely to occur (McDougall at para 45). Evidence “must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test” (McDougall at para 46).
(2) Serious issue to be tried
[39] The first element of the tripartite test is whether the Application materials and the evidence before the Court are sufficient to satisfy the Court, on a balance of probabilities, that Cpl. Letnes has raised a serious issue to be tried. The demonstration of a single serious issue suffices to meet this part of the test (Jamieson Laboratories Ltd v Reckitt Benckiser LLC, 2015 FCA 104 at para 26).
[40] As I previously stated in Okojie and Ahousaht, the requirement of a serious issue to be tried can give rise to one of three different thresholds (Okojie at paras 69-87; Ahousaht at para 78). First, the usual and general threshold is a low one, in which case the Court should not engage in an extensive review of the merits. There are no specific requirements to be met in order to satisfy this threshold and the judge must simply conclude that the issues raised in the underlying application are neither frivolous nor vexatious (RJR-MacDonald at pp 338-339). Second, an elevated threshold however applies “when the result of the interlocutory motion will in effect amount to a final determination of the action” (RJR-MacDonald at p 338). These situations call for a more extensive review of the merits at the first stage of the analysis, and they have often been referred to as requiring a “likelihood of success” in the underlying application. Third, for mandatory interlocutory injunctions, the SCC established in CBC that a heightened threshold of a “strong prima facie case” applies, and it expressly stated that, in such cases, a “strong likelihood” of success needs to be demonstrated for assessing the strength of the applicant’s case (CBC at paras 15, 17). I am satisfied that, in the present case, the usual and general low threshold of “neither frivolous nor vexatious” applies.
[41] Given my findings on the other two branches of the RJR-MacDonald test, I do not need to expand on the serious issue to be tried. Therefore, for the purpose of Cpl. Letnes’ Application, I will simply assume that at least one serious issue exists. I underscore that the question here relates to a preliminary assessment of the strength of Cpl. Letnes’ case in the proceeding underlying his Application (CBC at para 25), namely his Complaint to the Commission and the pending proceeding before the CHRT (Toutsaint at para 71; Colasimone at para 10).
[42] I must however pause to mention that, in the context of an application for a free-standing injunction under section 44 of the FC Act, this first prong of the RJR-MacDonald test takes a somewhat different colour, as the merits of the underlying action or application will be heard by a decision maker other than the Court. In other words, the injunction sought will not relate to an underlying action or application for judicial review before the Court, as would usually be the case for an injunction motion brought under Rule 373. In addition, the injunctive relief itself may be sought against a person or an entity which is different from the decision maker involved in the underlying matter (as was the case with the CSC in Toutsaint or Colasimone, and as is the case here with the RCMP in Cpl. Letnes’ Application).
[43] In his submissions, the AGC considers that the matter underlying Cpl. Letnes’ Application for an injunction is not his Complaint and the ensuing CHRT proceeding, but the process before the RCMP. The AGC argues that, since the RCMP has not yet made the decision to discharge Cpl. Letnes, and since Cpl. Letnes has not filed an application for judicial review, there is no underlying application and therefore no question or serious issue for the Court to determine. According to the AGC, Cpl. Letnes’ Application is therefore premature as there is no decision to be judicially reviewed by the Court, given that Cpl. Letnes has not yet been discharged from the RCMP and the administrative process before it is not completed. Moreover, the AGC notes that, if Cpl. Letnes were to be discharged at some future date, an appeal process within the RCMP would be available to him pursuant to the Appeals Order. Furthermore, if he were unsuccessful on his appeal, Cpl. Letnes would then have the right to apply to this Court for a judicial review of the final decision made by the appeal adjudicator.
[44] The AGC rightly points out that Cpl. Letnes challenges an ongoing administrative process in front of the RCMP, before the RCMP has even completed its analysis and at a time where the RCMP has not yet decided whether Cpl. Letnes will be discharged or not. At this point in time, no action has been taken by the RCMP and no final decision has been made regarding Cpl. Letnes pursuant to the ER Order. In the AGC’s view, Cpl. Letnes’ Application amounts to an attempt to pre-empt the RCMP’s jurisdiction to determine how cases proceed before it, contrary to its statutory mandate and to the provisions of the ER Order.
[45] I acknowledge that this question of the “prematurity” of the injunction recourse would typically be addressed in the assessment of the “serious issue” branch of the tripartite test. In Newbould v Canada (Attorney General), 2017 FCA 106 [Newbould], the Federal Court of Appeal [FCA] observed that prematurity and extraordinary circumstances are “a feature of the law of judicial review, and not the law of injunction” (Newbould at para 22). As such, these issues are to be “considered under the heading of serious issue” where the question is whether their weight “is such that the underlying application can be considered frivolous or vexatious” (Newbould at para 24). I further note that, in previous cases such as Abdi v Canada (Public Safety and Emergency Preparedness), 2018 FC 202 [Abdi] or Rogan v Canada (Citizenship and Immigration), 2010 FC 532 [Rogan], the Court indeed dealt with the issue of prematurity of an injunctive relief at the “serious issue to be tried” stage of the RJR-MacDonald test (Abdi at para 22; Rogan at para 12).
[46] However, in the present case, the injunctive relief sought by Cpl. Letnes under section 44 of the FC Act is anchored in an underlying Complaint before the CHRT, not in an application before the Court. In addition, Cpl. Letnes’ Application seeks to prohibit an administrative process undertaken by the RCMP which is different from the CHRT process. Therefore, the prematurity concern raised by the AGC does not truly relate to the underlying Complaint and to the question of whether or not it raises a serious issue under the first prong of the RJR-MacDonald test. That said, the question of prematurity permeates the assessment of each component of the tripartite RJR-MacDonald test and essentially calls to mind the overarching exceptional and discretionary nature of interlocutory injunctive reliefs such as a stay or an injunction. Viewed under that lens, it could be considered under any of the three elements of the RJR-MacDonald test, as it in fact goes to the essence of the remedy sought and calls into question the exercise of the Court’s discretion. Indeed, in James v Canada (Minister of Employment and Immigration), [1991] FCJ No 465 (FCTD) [James], the Court stated that, even though there was at least an arguable case to proceed to trial, no injunction should be issued as the “irreparable harm” and “balance of convenience” prongs of the RJR-MacDonald test were not met because the motion was premature (James at para 14).
[47] In the unusual circumstances of the present case where Cpl. Letnes seeks a free standing injunction under section 44 of the FC Act and where the underlying application relates to a process distinct from the process against which the injunctive relief is sought, I will therefore address the prematurity issue raised by the AGC under the “balance of convenience” branch of the tripartite test.
(3) Irreparable harm
[48] I now move to the second element of the RJR-MacDonald test, irreparable harm. Under this second prong of the test, the question is whether Cpl. Letnes has provided sufficiently clear, convincing and cogent evidence that, on a balance of probabilities, he will suffer irreparable harm between now and the time the CHRT proceeding is completed, should the interlocutory injunction be denied.
(a) Legal test
[49] Irreparable harm refers to the nature of the harm suffered rather than its magnitude. The irreparability of the harm is not measured by the pound. 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” (RJR-MacDonald at p 341).
[50] Irreparable harm is a strict test. First, irreparable harm must flow from clear, compelling and non-speculative evidence (United States Steel Corporation v Canada (Attorney General), 2010 FCA 200 [US Steel] at para 7; AstraZeneca Canada Inc v Apotex Inc, 2011 FC 505 at para 56, aff’d 2011 FCA 211). In addition, simply claiming that irreparable harm is possible is not enough. The jurisprudence of the FCA states that “[i]t is not sufficient to demonstrate that irreparable harm is ‘likely’ to be suffered” (US Steel at para 7). There must be evidence that the moving party will suffer irreparable harm if the injunction or the stay is denied (US Steel at para 7; Centre Ice Ltd v National Hockey League (1994), 53 CPR (3d) 34 (FCA) at p 52). Further, irreparable