Lake St. Martin First Nation v. Canada (Attorney General)

Lake St. Martin First Nation v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2020-01-29
Neutral citation
2020 FC 165
File numbers
T-1927-19
Decision Content
Date: 20200129
Docket: T-1927-19
Citation: 2020 FC 165
Ottawa, Ontario, January 29, 2020
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
CHIEF ADRIAN SINCLAIR, COUNCILLOR BRAD BEARDY, COUNCILLOR EMERGY STAGG, COUNCILLOR MAURICE TRAVERSE, COUNCILLOR CHRIS TRAVERSE, AND COUNCILLOR JULES BEARDY, IN THEIR PERSONAL AND REPRESENTATIVE CAPACITY AS REPRESENTATIVES OF LAKE ST MARTIN FIRST NATION, AND THE SAID LAKE ST MARTIN FIRST NATION AS REPRESENTATIVES FOR ALL ITS MEMBERS
Applicants
and
THE ATTORNEY GENERAL OF CANADA, THE HONOURABLE BILL BLAIR, MINISTER OF PUBLIC SAFETY, THE HONOURABLE MARC MILLER, MINISTER OF INDIGENOUS SERVICES CANADA, THE HONOURABLE CAROLYN BENNETT, MINSTER OF CROWN-INDIGENOUS RELATIONS AND NORTHERN AFFAIRS
Respondents
ORDER AND REASONS
[1] This is a motion brought by Chief Adrian Sinclair, and Councillors Brad Beardy, Emery Stagg, Maurice Traverse, Chris Traverse, and Jules Beardy, in their personal capacity and as representative of the Lake St Martin First Nation, and by Lake St Martin First Nation as representatives for all its members (collectively referred to as the “Applicants” or the “LSM First Nation”), on December 17, 2019, seeking an interlocutory injunction pursuant to s 44 of the Federal Courts Act, RSC 1985, c F-7 and Rule 373 of the Federal Courts Rules, SOR/98-106.
[2] Specifically, the relief sought is as follows:
1. An interlocutory injunction staying the operation of the decision terminating Red Cross evacuee status for Lake St. Martin evacuees who have no house to return to on the reserve, and whose housing needs on reserve have not meet met, such persons identified in schedule “A” to this motion;
2. An order directing that all parties, including the respondents and the Red Cross, abide by the stay, by reinstating or continuing full Red Cross flood evacuee benefits for those evacuees identified in schedule “A” until the earlier of:
a. The full and final disposition, of the origination proceedings (the Application); and
b. A court determination is made that there is a place within a house on Reserve, ready for occupancy by them and their dependents, where they can obtain safe and secure accommodations (to a standard no less than the national Occupancy Standards).
3. In the alternative, if a mandatory injunction to reinstate Red Cross evacuee benefits is required, then an interlocutory injunction to that effect;
4. An order that the Applicants be relieved of any undertaking as to damages that might otherwise be required under Ruled 373(2).
5. An order of costs as this Honourable court may deem just.
6. Such further and other Oder as the Honourable Court may deem just.
[3] When appearing before me, the Applicants’ counsel advised that item 2(b) above is not being pursued.
[4] To address this motion, it is first necessary to summarise the relevant factual background, which has led to the filing of the underlying application for judicial review and this related motion for an interlocutory injunction.
Background
[5] In 2011, as a result of extreme water levels, the government of Manitoba (“Manitoba”) implemented emergency flood mitigation measures, including the diversion of water into Lake Manitoba. While there is debate between the parties as to the role of the government of Canada (“Canada”) in that decision, that issue is not relevant to the motion for an injunction that I must decide, and I make no finding in the regard. What is not in dispute is that the diversion of water into Lake Manitoba led to devastating flooding in First Nation communities, one of which was LSM First Nation. The flooding forced the evacuation of LSM First Nation and caused the destruction of all houses and community infrastructure.
[6] On July 29, 2011, the Governor in Council promulgated Order in Council P.C. 2011-0843 (“OIC”) which authorized the Minister of Public Safety and Emergency Preparedness (“Minister”) to provide financial assistance, under s 4(1)(j) of the Emergency Management Act, SC 2007, c 15, to Manitoba in respect of its declaration of a provincial emergency in relation to the 2011 Manitoba flooding.
[7] Since 2011, LSM First Nation evacuees have received monthly evacuee benefits to pay for rent and living expenses while living off reserve. The monthly evacuee benefits are paid to the head of each household, as identified by LSM First Nation, by a local aid agency. From 2011 to 2014, the Manitoba Association of Native Firefighters (“MANFF”) administered the benefits. In or around 2014, the Canadian Red Cross (“CRC”) replaced MANFF in the managing of support for evacuees. Both the MANFF, and then the CRC, paid or pay the evacuee benefits directly to the evacuees and were or will be reimbursed by Manitoba’s Emergency Measures Organization, which, in turn, is able to claim reimbursement from Canada.
Evacuee List
[8] At the time that CRC replaced MANFF in the role of managing support for evacuees, Canada assumed responsibility for determining evacuee list eligibility.
[9] The 2014 CRC evacuee list identified approximately 1100 LSM First Nation evacuees.
[10] This number changed over time with the natural progression of lives. Children who were under the age of 18 at the time of the 2011 evacuation reached that age. Children were born to evacuees and evacuees passed away. In 2017, the evacuee list included 1297 persons.
Negotiations
[11] There have been ongoing discussions between Canada, Manitoba and LSM First Nation about the rebuilding of the community and the return home of the evacuees since 2011. Canada refers to its efforts to assist the LSM First Nation, and other evacuated First Nations, as “Operation Return Home”.
[12] There was general agreement between the parties that the ultimate goal was to achieve a Comprehensive Settlement Agreement (“CSA”) that would address all matters related to past and future high-level water events on LSM First Nation lands, including ongoing litigation, the re-establishment of the community and effecting the return of the evacuees to their homes.
[13] To that end, on July 14, 2014, the parties signed an Acknowledgement of the Fundamental Elements (“AFE”). This acknowledged that a comprehensive plan was needed to rebuild the LSM First Nation community and that the parties anticipated that a CSA would be based on the fundamental components set out in the AFE. The parties further acknowledged that the proposed CSA would be based on the terms set out in the AFE and that by the signing of the AFE the parties agreed to recommend the terms to their respective principals as the basis for further negations towards a final CSA. However, the parties also acknowledged that the AFE was not binding and did not create any legal obligation amongst them. The AFE addressed a number of matters, including easement lands and new reserve lands, infrastructure (roads, utilities, water treatment, schools, fire hall, band office, community centre etc.). Relevant to this motion was housing. The AFE states:
4) Housing
a) The proposed CSA would contemplate addressing housing as follows:
b) A financial contribution to a total maximum amount of $72.8 million by MB and Canada in respect of housing would be subject to completion on LSMFN of a Community Plan, compliance with the terms and conditions of any funding arrangements, tendering requirements, design specifications, detailed housing strategy and implementation plan;
c) priority to be given to the 2011 evacuee members pursuant to the Red Cross evacuee list dated July 2, 2014, subject to such documentation as may be determined or required.
i) LSMFN to prepare a detailed housing strategy and implementation/management plan; and …..
[14] The parties also agreed that if the LSM First Nation did not approve the AFE, then Canada and Manitoba would provide the listed “Basic Elements Only Package – Essentials to return evacuees”. This states that it is understood that the AFE sets out the elements and items that form a reasonable basis of a CSA agreement, however, if the proposed AFE was not supported by the LSM First Nation, then Canada and Manitoba would provide the listed following basic requirements to return evacuees to the community. With respect to housing:
i) In order to return evacuees as a Basic Element, a total financial contribution up to an amount of $47.3 million, from MB and Canada, to re-establish, on a priority basis, the LSMFN evacuees as per the Red Cross evacuee list dated July 2, 2014 and subject to such documentation as required.
[15] That financial contribution was subject to the stated conditions, including the completion by LSM First Nation of a community plan, detailed housing strategy and the other matters set out, which reflect the housing terms as set out in the AFE.
[16] On April 7, 2016, Canada, Manitoba and LSM First Nation signed a Project Approval Request (“PAR”) for the construction of 150 housing units. Ultimately, a favourable tender permitted the construction of an additional 40 units, for a total of 190 units, referred to as Phase 1 of the project.
[17] On April 26, 2017, Canada, Manitoba and LSM First Nation signed an “Agreement in Principle toward conclusion of Comprehensive Settlement Agreement, dated April 25, 2017” (“AIP”). This acknowledged that, at that time, the majority of evacuees remained displaced from their community with partial repatriation scheduled for 2017 and the full repatriation by fall of 2018. Further, that the parties had met regularly to acknowledge and address the elements of rebuilding the community, including the construction of additional housing units and other elements of the agreement. The AIP was agreed to form the foundation of a CSA but is non-binding and was prepared on a specified without prejudice basis. The AIP states that there remained three categories of infrastructure left to complete and that the parties had agreed to manage them in a distinct manner at the request of the LSM First Nation. One of these was in regard to the funding of $36 million identified for an additional 130 housing units. The parties agreed that Canada would manage the funding after approval of the CSA under the terms of a specific PAR to be executed prior to the completion of the CSA. Canada and Manitoba agreed that that their respective cost shares would be made available to reimburse the current housing contractor, upon approval of LSM First Nation, for additional units up to the full amount of $36 million, even if this exceed 130 living units. This would allow LSM First Nation flexibility to consider multi-plex or higher density housing options, with LSM First Nation members’ support, at a unit cost lower than single family dwellings.
[18] To date, a CSA has not been completed.
Repatriation of Evacuees
[19] The repatriation of evacuees began in the fall of 2017.
[20] At that time, Phase 1, the construction of 190 single-family dwelling living units, was nearing completion. Mr. Stephen Taylor, Manitoba Regional Director General (“RDG”) of Indigenous Services Canada (“ISC”) issued a “Lake St. Martin Decision Note - Repatriation Letter, decision by the Regional Director General Manitoba Region” dated November 1, 2017. The summary in the repatriation letter notes that LSM First Nation currently had 1297 evacuees and approximately 474 were expected to begin repatriation on November 3, 2017, at which time approximately 44 homes would be ready for occupancy, the remaining homes were anticipated to be ready in December 2017. Further, that a draft repatriation letter had been shared with the LSM First Nation Chief and Council who had agreed to sign it and send it to the evacuees. The letter explained that a housing unit had been assigned to them and was ready for immediate occupancy. On August 3, 2018, 40 households were advised that LSM Chief and Council had assigned them a housing unit that was ready for immediate occupancy.
[21] In spring of 2019, LSM Chief and Council submitted a Change Order Request to add 40 multiplex units instead of 10 single family homes. A May 24, 2019 joint letter from Canada and Manitoba indicated their support for the proposed change, and noted that the proposed cost of $5.8 million would result in a revised total project cost of $35.9 million, which was still within the current PAR authority of $36 million. Their support was subject to conditions listed, which included that the inclusion of the multiplex units would not delay the completion of the base contract of the 120 single detached living units and that the substantial completion of the multiplex units would be no later than March 31, 2020 as funding could not be guaranteed in future fiscal years. The letter also noted that upon adding the base contract of 120 units to the previously completed 190 units of Phase 1, the community would have a total of 310 units available by the end of November 2019, and 350 units by the end of March 2020. The letter also states that:
Financial support for all evacuees will be ending December 31, 2019 regardless if [sic] the additional units are not completed by this time. Furthermore, the increased number of units due for completion by the end of the fiscal year will not impact the expected return of evacuees by December 31, 2019.
[22] By letter of July 15, 2019, LSM First Nation Chief and Council expressed their dissatisfaction with the decision to end financial support for all evacuees on December 31, 2019. The letter states that Chief and Council had contacted the project manager, PM and Associates, who had advised that 310 units would be complete by November 30, 2019 and the remaining 40 units would not be completed until March 31, 2020. Chief and Council stated that the time line would result in an estimated 771 evacuees being rendered homeless and that they would be significantly impacted, physically and psychologically, if forced to return prematurely to the community, or to try to exist without continuing financial support. The letter requested that Canada and Manitoba revisit the decision.
[23] By Decision Note dated October 24, 2019, the RDG indicated that LSM First Nation currently had 991 evacuees and all were expected to return to their community by December 31, 2019. However, that an October winter storm had delayed construction such that completion of 100 of the 120 houses in Phase 2 would not occur until December 2019, and that the remaining 20 houses would not be ready for occupancy until mid-January 2020, at the earliest. Further, the note stated that CRC benefits could be terminated and remaining evacuees could return to the community. A draft repatriation letter had been prepared, similar in form to prior letters. It recommended that the repatriation letters be sent on or before October 31, 2019 to achieve a 60 day notice period for an effective cut off date of December 31, 2019. Repatriation letters were sent by the RDG on October 30, 2019. The letters stated that CRC benefits for LSM First Nation residents resulting from an evacuation that began in 2011 were set to end on December 31, 2019, and that recipients should contact the LSM First Nation Band Office for information on assignment of housing units.
[24] The letter also stated that new infrastructure including housing, water and waste water facilities, schools and a temporary Band office were in place, and that CRC was available to assist with the move.
[25] At a meeting held on November 12, 2019 between representatives of Canada and LSM Chief and Council Chief, the latter again expressed dissatisfaction with the decision to end evacuee benefits on December 31, 2019 and expressed concern about the housing units that would not be completed by that date.
[26] By email of November 22, 2019, Canada advised LSM First Nation that it had received the November 18, 2019 letter from LSM First Nation’s counsel (described below) and that Canada had already acknowledged that not all of the housing units (70) would be ready by December 31, 2019, as had been expected. The RDG had expressed that ISC wanted to work with Chief and Counsel to address the situation. Further, that Canada remained prepared to continue assistance past December 31, 2019 for evacuees allocated to those 70 incomplete housing units.
[27] By letter of December 17, 2019 counsel for Canada advised counsel for the LSN First Nation that Canada would, on a without prejudice basis, continue to fund evacuee benefits for the remaining evacuees, generally, until January 31, 2020. Canada would additionally continue to provide benefits for a specific subset of evacuees whose homes were not yet completed, until March 31, 2020, which agreement was not made on a without prejudice basis. The letter states that the author understood that counsel for the LSM First Nation was working to identify those individuals and would shortly provide that information. Further, that Canada required that information so that it could promptly notify all evacuees and accurately advise them of the correct date that their benefits will end.
[28] By email dated December 23, 2019, counsel for the LSM First Nations provided counsel for Canada with a list of evacuee heads of household who have been allocated a house that was not ready for occupancy.
[29] By letters dated December 24, 2019, all remaining evacuee heads of household (496) were advised by the RDG that evacuee benefits were extended to January 31, 2020.
Appeal
[30] By letter of November 18, 2019, counsel for LSM First Nation wrote to counsel for Canada stating that most of the evacuees had no home to return to and expressing the view that the termination notices must be rescinded as they were premature. Counsel referenced an ISC webpage that contains Frequently Asked Questions – Information for 2011 Manitoba Flood Evacuees (“FAQs”). Counsel also stated the view that Canada had failed to advise evacuees how they could appeal the decision to be removed from the evacuee list or of the criteria that must exist in order for an appeal to be successful and asserted that this offended fairness and natural justice. Counsel asked Canada to immediately identify the appeal procedure promised to the evacuees, how and when appeal hearings would take place, and requested that Canada immediately confirm that the termination of benefits had been rescinded and would only be reissued after an appeal process. Failing this, LSM First Nation would seek judicial review and interlocutory relief. Counsel acknowledged this Court’s decision in Dauphin River First Nation (Stagg v Canada (Attorney General), 2019 FC 630 (“Stagg”)), but stated its view that the factual circumstances differed.
[31] By letter of November 28, 2019, counsel for Canada responded to the November 18, 2019 letter from counsel for LSM First Nations. This referenced Canada’s November 22, 2019 email, described above. It also acknowledged that counsel for LSM First Nation had provided a list of evacuees to whom Chief and Council had allocated houses that had been constructed, are under construction or are awaiting construction, and asked for information to help reconcile the houses that would not be complete as of December 31, 2019 with the affected band members. The letter acknowledged LSM First Nation’s concerns as to the number of houses that would be funded in excess of the 183 homes that had existed on the reserve in 2011, but noted that the level of housing was agreed by the parties in the AIP. As to evacuation benefits, those are provided under the Emergency Management Assistance Program until such time as the affected communities are restored to their pre-emergency state. ISC anticipated that the additional housing would be completed by December 31, 2019 (subject to those already noted), and that the authority and responsibility to make housing allocations rests with Chief and Council. The letter states that ISC respects and does not interfere with that authority. As to the reference made to the FAQs on an ISC webpage, the letter states that, as counsel for LSM First Nation would be aware from the evidence in another matter before this Court, the appeal referenced within the FAQs related to a decision about the eligibility of specific individuals on evacuation lists, and not in respect of a decision as to whether funding of evacuees benefits, writ large, are to end.
[32] By letter of December 9, 2019, counsel for LSM First Nations responded to a letter from counsel for Canada dated November 28, 2019 and stated that LSM First Nation counsel, on behalf of the individual LSM First Nation members who had been advised that their evacuee benefits were going to be terminated, sought to appeal the termination decision. Counsel expressed the view that those individuals had a right to an appeal process if they pursued it and that the Dauphin Nations case, which had been determined by the Court (Stagg), did not determine the availability of an appeal process. Counsel demanded that Canada inform LSM First Nation of the appeal procedure and process, and that Canada allow the appeal process to play out before providing notice of termination of evacuee benefits.
[33] By letter of December 16, 2019, counsel for Canada confirmed to counsel for LSM First Nation that there is no appeal process for individual evacuees with respect to Canada’s termination of funding for evacuee benefits. Further, that the appeal process to which counsel for the LSM First Nation referred applied only to situations where an individual evacuee was determined to be ineligible for inclusion on the CRC evacuee list and wished to appeal their removal from that list. Counsel for Canada stated that that process does not apply to Canada’s determination that it will no longer provide this component of the disaster assistance, previously provided pursuant to the OIC and authorizing assistance under the federal Emergency Management Act.
Proceedings before this Court
[34] LSM First Nation filed a Notice of Application for judicial review on November 29, 2019 challenging the October 30, 2019 decision providing notice of termination of evacuee benefits, to be effective December 31, 2019, for the remaining CRC evacuees.
[35] The subject motion was filed on December 17, 2019 and was heard at a special sitting in Winnipeg on Friday, January 24, 2020. Counsel advised at the hearing that, for practical purposes, a decision was needed in advance of the January 31, 2020 termination date for most evacuee benefits.
Evidence
[36] In support of this motion seeking an interlocutory injunction, the LSM First Nation has filed the following affidavits:
i. Affidavit of Chief Adrian Sinclair, Chief and member of LSM First Nation, affirmed on December 17, 2019. Also before me is the transcript of cross examination of Chief Sinclair on his affidavit;
ii. Affidavit of Chase Traverse, Phase 2 Housing Project Coordinator for LSM First Nation, affirmed on December 17, 2019. Also before me is the transcript of cross examination of Chase Traverse on his affidavit;
iii. Affidavit of Chris Traverse, a Band Councillor of LSM First Nation, affirmed on December 17, 2019. Also before me is the transcript of cross examination of Chase Traverse on his affidavit;
[37] In responding to the motion, Canada filed the following affidavits:
Affidavit of Eunice Gross, Acting Manger of Community Initiatives, ICS, affirmed on January 3, 2020. Also before me is the transcript of cross examination of Eunice Gross on her affidavit;
Affidavit of Aaron O’Keefe, previously employed as a Manager of Community Initiatives, ICS, affirmed on January 3, 2020. Also before me is the transcript of cross examination of Aaron O’Keefe on his affidavit;
Affidavit of Donny Buckingham P. Eng., Senior Engineer, Manitoba Region, ICS, affirmed on January 3, 2020. Also before me is the transcript of cross examination of Donny Buckingham on his affidavit;
Affidavit of Louis Dion, Senior Engineer, Manager Claims Negotiations, Manitoba Region, ICS, affirmed on January 3, 2020. Also before me is the transcript of cross examination of Louis Dion on his affidavit;
Issues
[38] There are two questions to be answered on this motion. The first is a preliminary question of whether the injunction sought is properly characterized as mandatory or prohibitory. And, having determined that, the second is whether the applicable test for injunctive relief as been met.
Preliminary Issue: Is the injunction sought properly characterized as mandatory or prohibitory?
LSM First Nation’s Position
[39] LSM First Nation submits that whether the injunction is mandatory or prohibitory depends on the proper characterization of the injunctive relief sought. As indicted by the Supreme Court of Canada in R v Canadian Broadcasting Corporation, 2018 SCC 5 at para 5 (“Canadian Broadcasting”), the analysis required to determine this boils down to whether the injunction would require the defendant to do something or to refrain from doing something. In this case, the core of Applicant’s relief sought, the injunction, is to quash a decision and temporarily refrain the RDG from “doing something” – that something being the removal of CRC evacuee status.
[40] LSM First Nation takes the position that if the injunction is granted it will not compel Canada to make payments to the evacuees as it is actually the CRC that pays the evacuee benefits. Manitoba reimburses the CRC and “then Canada might at a later date” reimburse Manitoba. According to the Applicants, Canada is not making those payments, rather what Canada is doing is making determinations of status of evacuees. That that determination of status is the core of the dispute. The LSM First Nation relies on AC v Canada (Citizenship and Immigration), 2019 FC 1196 (“AC”) and West Moberly First Nations v British Columbia, 2018 BCSC 1835 (“West Moberly”) in support of their position that the injunction sought is prohibitory as Canada is being asked to refrain from terminating evacuee status. It submits that the fact that Canada may reimburse the CRC for the payments to the evacuees is an incidental consequence of the interlocutory prohibition preventing the evacuee’s status from being removed.
Canada’s Position
[41] The named Respondents (referred collectively to as “Canada”) submit that the LSM First Nation seeks a mandatory injunction. This is because, properly characterized, the relief sought seeks to compel Canada to do something (Canadian Broadcasting at para 16), that is, to continue or reinstate funding of evacuee benefits. This type of positive obligation is mandatory in nature as it would, if granted, “direct [the Respondents] to undertake a positive course of action, such as taking steps to restore the status quo, or to otherwise ‘put the situation back to what it should be’” (Canadian Broadcasting at para 15; Medical Laboratory Consultants Inc v Calgary Health Region, 2003 ABQB 995 (“Medical Laboratory”)). Canada also takes issue with the accuracy of LSM First Nation’s characterization of the relief sought as a continuation of evacuee status. Canada submits that there is nothing to indicate that the CRC evacuee benefits would continue, given the termination by Canada and Manitoba of the program funding. This inaccuracy is demonstrated by the LSM First Nation’s prayer of relief, which seeks an additional order for “[a]n order directing that all persons, including the respondents and the Red Cross, abide by the stay, by reinstating or continuing full Red Cross flood evacuee benefits for the evacuees identified in schedule A…”. Canada submits that without this mandatory aspect of the injunction, LSM First Nations’ entire argument respecting irreparable harm must fail as it is premised on financial hardship to the evacuees. Canada submits that characterizing the requested mandatory order as alternative or ancillary relief does not assist the LSM First Nation as the “practical consequence” sought is the continuation of funding of the evacuee benefits by Canada.
Analysis
[42] The starting point in resolving this issue is the Supreme Court of Canada’s decision in Canadian Broadcasting. There that Court discussed the test for a prohibitive injunction and the enhanced first stage test applicable to mandatory injunctions:
[12] In Manitoba (Attorney General) v. Metropolitan Stores Ltd. and then again in RJR — MacDonald, this Court has said that applications for an interlocutory injunction must satisfy each of the three elements of a test which finds its origins in the judgment of the House of Lords in American Cyanamid Co. v. Ethicon Ltd. At the first stage, the application judge is to undertake a preliminary investigation of the merits to decide whether the applicant demonstrates a “serious question to be tried”, in the sense that the application is neither frivolous nor vexatious. The applicant must then, at the second stage, convince the court that it will suffer irreparable harm if an injunction is refused. Finally, the third stage of the test requires an assessment of the balance of convenience, in order to identify the party which would suffer greater harm from the granting or refusal of the interlocutory injunction, pending a decision on the merits.
[13] This general framework is, however, just that — general. (Indeed, in RJR — MacDonald, the Court identified two exceptions which may call for “an extensive review of the merits” at the first stage of the analysis.) In this case, the parties have at every level of court agreed that, where a mandatory interlocutory injunction is sought, the appropriate inquiry at the first stage of the RJR — MacDonald test is into whether the applicants have shown a strong prima facie case…
…
[15] In my view, on an application for a mandatory interlocutory injunction, the appropriate criterion for assessing the strength of the applicant’s case at the first stage of the RJR — MacDonald test is not whether there is a serious issue to be tried, but rather whether the applicant has shown a strong prima facie case. A mandatory injunction directs the defendant to undertake a positive course of action, such as taking steps to restore the status quo, or to otherwise “put the situation back to what it should be”, which is often costly or burdensome for the defendant and which equity has long been reluctant to compel. Such an order is also (generally speaking) difficult to justify at the interlocutory stage, since restorative relief can usually be obtained at trial. Or, as Justice Sharpe (writing extrajudicially) puts it, “the risk of harm to the defendant will [rarely] be less significant than the risk to the plaintiff resulting from the court staying its hand until trial”. The potentially severe consequences for a defendant which can result from a mandatory interlocutory injunction, including the effective final determination of the action in favour of the plaintiff, further demand what the Court described in RJR — MacDonald as “extensive review of the merits” at the interlocutory stage.
[16] A final consideration that may arise in some cases is that, because mandatory interlocutory injunctions require a defendant to take positive action, they can be more burdensome or costly for the defendant. It must, however, be borne in mind that complying with prohibitive injunctions can also entail costs that are just as burdensome as mandatory injunctions. While holding that applications for mandatory interlocutory injunctions are to be subjected to a modified RJR — MacDonald test, I acknowledge that distinguishing between mandatory and prohibitive injunctions can be difficult, since an interlocutory injunction which is framed in prohibitive language may “have the effect of forcing the enjoined party to take . . . positive actions”. For example, in this case, ceasing to transmit the victim’s identifying information would require an employee of CBC to take the necessary action to remove that information from its website. Ultimately, the application judge, in characterizing the interlocutory injunction as mandatory or prohibitive, will have to look past the form and the language in which the order sought is framed, in order to identify the substance of what is being sought and, in light of the particular circumstances of the matter, “what the practical consequences of the . . . injunction are likely to be”. In short, the application judge should examine whether, in substance, the overall effect of the injunction would be to require the defendant to do something, or to refrain from doing something.
[Footnotes removed]
[43] Thus, when seeking a prohibitive injunction the party seeking the relief must establish that:
(a) there is a serious issue to be tried, in the sense that the application is neither frivolous nor vexatious
(b) the moving party would suffer irreparable harm if an injunction is refused; and
(c) the balance of convenience favours the moving party.
[44] When a mandatory injunction is sought, there is an enhanced first stage analysis. The party seeking the relief must establish that there is strong prima facie case that they will succeed on the underlying application.
[45] In either case, the test is conjunctive.
[46] The task on this preliminary issue is, therefore, to determine whether the motion sought by the LSM First Nation may be properly characterized as mandatory or prohibitory, looking past the language used in the order sought, to identify, in substance, whether the overall effect of the injunction would be to require Canada to do something, or to refrain from doing something.
[47] In order to properly characterize the injunction, it is helpful to first recall the legislative basis pursuant to which the funding of the evacuee benefits is provided, and the continuation of which benefits at issue. This is the Emergency Management Act. This legislation is very brief. It defines emergency management at s 2 as, “the prevention and mitigation of, preparedness for, response to and recovery from emergencies”. Section 2 also defines a provincial emergency as “an emergency occurring in a province if the province or a local authority in the province has the primary responsibility for dealing with the emergency”. The Minister is responsible for exercising leadership relating to emergency management in Canada by coordinating, among government institutions and in cooperation with the provinces and other entities, emergency management activities. This includes providing assistance to provinces:
4(1)(j) providing financial assistance to a province if
(i) a provincial emergency in the province has been declared to be of concern to the federal government under section 7,
(ii) the Minister is authorized under that section to provide the assistance, and
(iii) the province has requested the assistance;
[48] The legislation also states that a federal government institution may not respond to a provincial emergency unless the government of the province requests assistance or there is an agreement with the province that requires or permits the assistance (s 6(3)). Here, the OIC demonstrates that Manitoba requested financial assistance from Canada and that, pursuant to s 7(c) and (d) of the Emergency Management Act, Canada declared the 2011 flooding in Manitoba to be a provincial emergency to be of concern to the federal government and authorized the Minister to provide financial assistance to Manitoba pursuant to s 4(1)(j).
[49] The evidence before me, including the Funding Agreement between Canada and the CRC and the affidavit evidence of Eunice Gross, confirms that the CRC administers the benefits currently being paid to evacuees, including those from the LSM First Nation, and is reimbursed by Manitoba which, in turn, is reimbursed by Canada. The funding for this is authorized and provided by the Emergency Management Act. Accordingly, while the LSM First Nation submits that if the injunction is granted it will not compel Canada to make any payments to the evacuees, this is true only in the sense that Canada does not itself directly pay those benefits to the evacuees. Canada does, however, ultimately absorb that cost. And, in the absence of any evidence to suggest that the CRC would independently fund the evacuee benefits if the Funding Agreement were terminated, estimated by Canada to be $800,000 per month, it is clear that if the injunction is granted, Canada will be compelled to continue to fund those payments. Indeed, this would appear to be recognized by the LSM First Nation as it also seeks an order directing that all parties, including Canada and the CRC, reinstate or continue full evacuee benefits until the full and final disposition of the application for judicial review.
[50] I also note that the injunctive relief as framed by LSM First Nation is the staying of the operation of the decision terminating CRC “evacuee status”. The LSM First Nation and Canada fundamentally disagree on what the RDG decided in October 2019. The LSM First Nation view is that the decision is a termination of individual’s status as evacuees, while Canada asserts that the decision was that all CRC evacuee benefits would end on December 31, 2019 because all evacuees could then return to the reserve as housing commitments had been fulfilled and the evacuation emergency had therefore ended.
[51] I disagree with LSM First Nation’s position that that the crux of this matter is the termination of individual evacuee “status”. However, for the purposes of determining whether the injunction is prohibitory or mandatory, I note that if the decision challenged by LSM First Nation is one of individual evacuee status, and if that status is terminated, it follows that so too will be evacuee benefits. Similarly, if the RDG determined that the emergency had come to an end and terminated all evacuee benefits on that basis, benefits will end. Thus, whether cast as an issue of status or the end of the emergency, the result is the same.
[52] As to the jurisprudence, although LSM First Nation refers to AC, I am not persuaded that it is of assistance to them. That case did not involve an interlocutory injunction (s 44 of the Federal Courts Act, Rule 373 of the Federal Courts Rules), but rather was concerned with a stay of removal of a failed refugee claimant by way of an interim order (s 18.2 of the Federal Courts Act). This Court deals with motions seeking to stay removal on a daily basis. It is well established that in order to succeed on a motion to stay the execution of a removal order, the applicant must meet the requirements of the tri-partite test as set out by the Federal Court of Appeal in Toth v Canada (Minister of Employment and Immigration), 6 Imm LR (2d) 123, [1988] FCJ No 587 (CA) (QL/Lexis) and by the Supreme Court of Canada in RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311, [1994] SCJ No 17 (QL/Lexis) (“RJR – MacDonald”) and Canadian Broadcasting at para 12, that: (a) there is a serious issue to be tried; (b) the applicant would suffer irreparable harm if removed at this time; and (c) the balance of convenience favours the applicant. I disagree with the Applicants’ statement that in AC this Court “considered that the injunction sought was prohibitory. It sought to prevent Canada from changing the person’s status. The injunction was granted”. This entirely mischaracterizes AC. The Court did not hold that the injunction sought was prohibitory, indeed, as no injunction was sought. There is no discussion of mandatory or prohibitory injunctions in the case. Nor did Justice Pentney find that the matter before him concerned the revocation of refugee status. The issue before Justice Pentney was whether a removal order should be stayed pending determination of an underlying application for leave and judicial review of a decision dismissing an application for permanent residence based on humanitarian