Buck v. Canada (Attorney General)

Buck v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2020-07-17
Neutral citation
2020 FC 769
File numbers
T-1929-19
Decision Content
Date: 20200717
Docket: T-1929-19
Citation: 2020 FC 769
Vancouver, British Columbia, July 17, 2020
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
MARGUERITE MARY (MARGARET) BUCK, DOROTHY ANNE SAVARD, SYLVIA M MCGILLIS, FRANCES JUNE MCGILLIS, FLORENCE JOYCE L’HIRONDELLE, AND MARILYN MCGILLIS
Plaintiffs
and
ATTORNEY GENERAL OF CANADA AND ENOCH CREE NATION
Defendants
ORDER AND REASONS
[1] This is a motion brought by the Plaintiffs seeking an interlocutory injunction, pursuant to Rule 373 of the Federal Courts Rules, SOR/98-106, enjoining the Minister of Crown-Indigenous Relations and Northern Affairs Canada [Minister] from executing a proposed settlement agreement [Proposed Settlement Agreement] with the Enoch Cree Nation [Enoch] until this Court renders its judgment in an action commenced by the Plaintiffs as against the Attorney General of Canada and Enoch.
[2] As I have concluded that the Court has no jurisdiction to grant the injunction, the motion is dismissed and the related motions of the Attorney General and Enoch challenging the admissibility of certain portions of the Plaintiffs’ evidence filed in support of the injunction motion are accordingly rendered moot.
Background
[3] Although the Plaintiff and Enoch have submitted highly detailed descriptions of the background to this matter, for the purposes of this injunction motion, the facts can be summarized as follows.
[4] Enoch is a First Nation and a band as defined in s 2(1) of the Indian Act, RSC 1985, c I-5 with over 2200 members. Pursuant to Treaty 6, to which Enoch adheres, the Stoney Plain Indian Reserve No. 135, also known as the Enoch Cree Nation 135, was established [Enoch Reserve].
[5] In 1942, Canada leased a portion of Enoch Reserve lands, known as the Yekau Lake Bombing Range, to the Department of Munitions and Supply [DMS] for use as a practice bombing range.
[6] Since 1973, First Nations have been able to avail of the Specific Claims Policy, which provides an alternate dispute resolution process for resolving historic grievances that are related to Canada’s obligations pursuant to historic treaties or the way Canada managed First Nations’ lands, funds or other assets. In 2008, Canada enacted the Specific Claims Tribunal Act, SC 2008, c 22 [SCTA] pursuant to which First Nations could file specific claims with the Tribunal as specified therein.
[7] A specific claim submitted by a First Nation can be accepted for negotiation by Canada. In that event, the parties aim to negotiate a final settlement agreement, which, if achieved, must be approved by both the First Nation and Canada before it can be finalized. The negotiation and settlement of a specific claim avoids recourse to adjudication before the Specific Claims Tribunal. The Specific Claims Policy establishes the principles and process for resolving specific claims through negotiation and that such claims can only be submitted by a First Nation. Similarly, only First Nations can file specific claims with the Tribunal.
[8] In 2007, Enoch submitted a specific claim in respect of the use by DND of Enoch Reserve lands as a bombing range [Enoch Specific Claim]. The Enoch Specific Claim alleged breaches of fiduciary duty and breaches of the 1927 Indian Act. More particularly, that the Crown improperly utilized Enoch’s Reserve lands as a practice bombing range during the Second World War without Enoch’s consent and without regard to the damage that would be done to the Reserve lands.
[9] The Affidavit of Jennifer O’Neil, a negotiator with the Department of Crown-Indigenous Relations and Northern Affairs, Canada, sworn on March 9, 2020 [O’Neil Affidavit], deposes that in 2013 Canada offered to negotiate the Enoch Specific Claim and in 2016 Enoch agreed. While these dates are not entirely consistent with those found in the Affidavit of Chief Morin, sworn on March 9, 2020 [Morin Affidavit] and filed by Enoch, this is of no relevance to the motion before me.
[10] A negotiation protocol was effected between Canada and Enoch, and in April 2018, the negotiating committees of Canada and Enoch reached mutual agreement as to the settlement of the Enoch Specific Claim that they would respectively be prepared to recommend to their stakeholders. The proposal was for payment of a significant figure by Canada to Enoch in full and final settlement of the Enoch Specific Claim. On June 11, 2019, Canada issued a formal offer to settle the Specific Claim. On August 29, 2019, Enoch Chief and Council passed a Band Council Resolution accepting the June 11, 2019 offer to settle. On December 18, 2019, Enoch provided all of its members with a Notice of Ratification Vote, attaching a 3-page summary of the Proposed Settlement Agreement, a copy of that agreement, a 2-page summary of the Yekau Trust Agreement and a copy of that agreement. On January 8, 2019, Enoch Chief and Council held an information meeting for its members to explain the terms and conditions of the Proposed Settlement Agreement and proposed trust agreement. On January 31, 2020, Enoch held a ratification vote at which the large majority of Band members who voted did so in favour of accepting the Proposed Settlement Agreement. On February 24, 2020, Enoch Chief and Council passed a Band Council Resolution accepting the Proposed Settlement Agreement.
[11] The Plaintiffs are members of Enoch. On May 10, 2019, Deborah Hardy, daughter of Florence L’Hirondelle, a Plaintiff herein, wrote to the Minister stating that she did so on behalf of the Plaintiffs. In her letter, Ms. Hardy stated that the Enoch Specific Claim included land held by the McGillis family by way of a Certificate of Possession [CP]. Amongst other things, Ms. Hardy stated that Enoch had recently engaged directly with the McGillis family, but despite a February 21, 2019 letter from their counsel to the Department of Justice outlining what the Plaintiffs viewed as the legal obligations of the Crown to the CP holders, there had been no direct engagement with the Crown. Ms. Hardy alleged that Enoch and the Crown could not proceed with the Enoch Specific Claim settlement without reaching prior agreement with the Plaintiffs as to their interests in the land held under the CP [CP Lands].
[12] The Plaintiffs’ motion record discloses correspondence sent by counsel for the Plaintiffs between January 2019 and March 2020 to counsel for Enoch and Canada. In his many correspondences, counsel for the Plaintiffs repeatedly reiterated the Plaintiffs’ legal position. Enoch provided a substantive response by letter of May 15, 2019 and by other correspondence, including by letters of September 3, September 23, and October 9, 2019. The written submissions of the Plaintiffs and Enoch, as well as their respective records, also indicate that there were meetings between Ms. Hardy, counsel for the Plaintiffs, and Enoch and its counsel to discuss the Plaintiffs’ position. In the affidavit of Deborah Hardy sworn on March 17, 2020 [Affidavit #2 of Deborah Hardy], Ms. Hardy deposes that there were five meetings between the Plaintiffs and Enoch and their respective legal counsel over the course of 2019, but agreement was not reached “on how the legal rights of the CP Holders will be addressed by the proposed settlement” of the bombing range claim.
[13] On June 24, 2019 counsel for Enoch provided the Plaintiffs, on a without prejudice basis, with a copy of the June 11, 2019 offer to settle as sent to Chief Morin by Ms. O’Neil. The Plaintiffs took the view that as CP holders they were entitled to be a party and require changes to the offer. These changes primarily aimed at achieving a separate agreement with Enoch to be referenced in the settlement offer and agreement.
[14] As to communications from Canada, by letter of December 27, 2019, Mr. Joe Wild, Senior Assistant Deputy Minister, Treaties and Aboriginal Government, Indigenous and Northern Affairs Canada, responded to Ms. Hardy’s letter of May 10, 2019 to the Minister and advised that Canada’s negotiations with Enoch were undertaken on a confidential basis, and for that reason, the Minister was unable to meet with Ms. Hardy to discuss them. However, that through the specific claims negotiations, Canada encourages First Nations elected leadership to share information about the claim with all community members and that Mr. Wild understood that, with respect the Enoch Specific Claim, there had been recent calls, meetings, and correspondence between Enoch and members of the McGillis family to discuss their CP interests. The letter encouraged Ms. Hardy to continue this communication in the interests of having her concerns considered by the Enoch Chief and Council.
[15] By letter of April 4, 2019 to Plaintiffs’ counsel, counsel with the Department of Justice [DOJ] addressed, amongst other things, the Plaintiffs’ view that Canada should engage directly with the Plaintiffs. Because this, and other letters from DOJ to Plaintiffs’ counsel are likely subject to settlement privilege, I reference them here only to the extent necessary to describe Canada’s stated position with respect to the Plaintiffs’ view that Canada should engage directly with the Plaintiffs with respect to their CP interests. In the April 4, 2019 letter, DOJ counsel stated that he appreciated the efforts of Plaintiffs’ counsel to explain the Plaintiffs’ interests and positions as holders of a CP on lands implicated in the Enoch Specific Claim. Further, and as DOJ had previously advised, and contrary to counsel for the Plaintiffs’ correspondence, the Plaintiffs’ CP was not a matter that was being ignored by Canada. Canada was aware of the existence of the CP and of the claims the Plaintiffs were making and appreciated the seriousness of the issue. DOJ stated that Canada regularly discussed these matters with Enoch and, that since July 2018, DOJ had been encouraging the Plaintiffs’ current and past counsel, and Enoch, to communicate amongst themselves with a view to resolving the matter. The letter also pointed out that DOJ had previously advised that Canada is not in a position to release to the Plaintiffs’ information or documentation pertaining to the negotiations between Canada and Enoch because they are confidential and subject to settlement privilege. Further, that specific claims generally deal with past wrongs against First Nations, as collectives. In that regard, Enoch’s Specific Claim negotiations arose as a result of matters which occurred between Canada and Enoch between 1941 and 1949 and, for that reason, DOJ had urged the Plaintiffs, through their counsel, to direct their requests to Enoch.
[16] DOJ repeated this position by letters of July 15, 2019, September 12, 2019 and November 21, 2019, in which DOJ again explained, in response to a request by Plaintiffs’ counsel that Canada provide an assurance that it would deal directly with the CP holders, that negotiations between Canada and Enoch were confidential and that Canada’s mechanism for dealing with historic grievances is the specific claim process, which deals with past wrongs against First Nations as collectives. Accordingly, Canada continued to urge the Plaintiffs to direct their claims to Enoch. DOJ also noted that in its November 21, 2019 letter that it had canvassed key legal principles related to fiduciary law, judicial review and trespass, to the extent that could be expected in the circumstances, and that although the Plaintiffs had subsequently raised arguments relating to the tort of conversion, based on its examination of the law, DOJ saw no application to the settlement of the Enoch Specific Claim.
[17] On November 29, 2019, the Plaintiffs filed a Statement of Claim in this Court, commencing an action against Canada alleging ongoing trespass caused by alleged munitions scraps on the lands that were leased to DMS for use as the bombing range, including those lands held under the CP.
[18] On January 10, 2020, the Plaintiffs filed an Amended Statement of Claim asserting that Canada breached its fiduciary duties owed to the Plaintiffs with respect to the CP Lands, including by finalizing the terms of the Proposed Settlement Agreement to the prejudice of the Plaintiffs. They further alleged the tort of conversion on the basis that as holders of the CP, only they can sue for trespass, seek remediation and receive damages and that Enoch was not authorized to make the Specific Claim in relation to the CP lands. They allege that Canada is therefore liable to the Plaintiffs through the tort of conversion as the result of the Enoch Specific Claim negotiation and purported settlement.
[19] On March 2, 2020, the Plaintiffs filed a Notice of Motion seeking an interlocutory Injunction.
Confidentiality Order
[20] In support of this motion, the Plaintiffs filed copies of correspondence, some of it marked without prejudice, and documents that either directly or indirectly referred to the Proposed Settlement Agreement, including the settlement offer and the Proposed Settlement Agreement itself. The Attorney General took issue with this on the basis of settlement privilege. Although the Plaintiffs were offered the opportunity to revise their affidavits and exhibits they declined to do so and instead insisted that the admissibility of the documents proceed by way of a separate motion. The Attorney General duly brought a motion seeking an order striking out paragraphs of Affidavit #2 of Fiona Scott, affirmed on February 28, 2020, together with related exhibits, which affidavit was filed by the Plaintiffs [Attorney General Motion to Strike].
[21] Enoch similarly filed a motion seeking an order striking out paragraph 7 of Affidavit #2 of Deborah Hardy and to strike the evidence of Fiona Scott or, alternatively, striking out the cross-examination answer to question #1 on her written cross-examination [Enoch Motion to Strike].
[22] Because the Plaintiffs also insisted that it was necessary to address the specifics of the documents, the admissibility of which was challenged, when the motions to strike and, if admissible, the injunction were heard, the Case Management Judge ordered that the hearing would not be open to the public unless otherwise ordered.
[23] The hearing before me was conducted by Zoom. It was closed, other than to the parties, their respective counsel and other agreed observers, because it was impossible to know in advance if, as the Plaintiffs submitted, it would be necessary to speak to the specifics of the content of those documents. During the hearing, counsel made efforts to refer the Court to documents as necessary but without verbally disclosing the majority of the settlement terms, the proposed settlement amount or other amounts. However, it did prove necessary to review the specifics of certain of the Proposed Settlement Agreement provisions. In my view, there is no question that the Proposed Settlement Agreement, as well as the settlement offer, is covered by settlement privilege. Accordingly, in this decision I will refer only generally to the very few provisions of the Proposed Settlement Agreement that are relevant to the injunction motion.
Jurisdiction
[24] The determinative issue is this matter is whether this Court has jurisdiction to grant the requested injunctive relief.
[25] The Plaintiffs assert that this Court has jurisdiction to grant the injunction referencing Hupacasath First Nation v Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4 at para 54 [Hupacasath] and Stagg v Canada (Attorney General), 2019 FC 630 at para 51 [Stagg].
[26] The Attorney General submits that pursuant to s 22 of the Crown Liability and Proceedings Act, RSC 1985, c C-50, this Court does not have jurisdiction to grant an injunction against the Federal Crown within an action. While the Federal Courts Act, RSC 1985, c F-7 permits injunctive relief against federal boards, commissions and officers within judicial review application, the Crown Liability and Proceedings Act prevents the issuance of an injunction against the Federal Crown in any other proceedings (Mundle v Canada, (1994), 28 Admin LR (2d) 69, 1994 CarswellNat 861 at paras 9-10 (FCTD) [Mundle] referring to Grand Council of Crees (of Quebec) v Canada, [1982] 1 FC 599, 1981 CanLII 2759 (FCA) [Grand Council of Crees], leave to appeal to the SCC refused, 41 NR (1982)). Further, that the clear distinction between the availability of injunctions against the Crown in the context of judicial reviews as opposed to actions is also made clear in Musqueam Indian Band v Canada (Governor in Council), 2004 FC 579 at paras 69-71 [Musqueam].
[27] Enoch agrees with the Attorney General and adds that in Paul v Canada, 2002 FCT 615 at paras 1-2, 81, s 22 of the Crown Liability and Proceeding Act was interpreted to prevent the exact type of injunction that the Plaintiffs now seek to be granted.
Analysis
[28] Section 22(1) of the Crown Liability and Proceedings Act states:
22(1) Where in proceedings against the Crown any relief is sought that might, in proceedings between persons, be granted by way of injunction or specific performance, a court shall not, as against the Crown, grant an injunction or make an order for specific performance, but in lieu thereof may make an order declaratory of the rights of the parties.
[29] Section 18 of the Federal Courts Act states
18(1) Subject to section 28, the Federal Court has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.
(2) The Federal Court has exclusive original jurisdiction to hear and determine every application for a writ of habeas corpus ad subjiciendum, writ of certiorari, writ of prohibition or writ of mandamus in relation to any member of the Canadian Forces serving outside Canada.
(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.
[30] In my view, these provisions are clear. I note, in particular, that the remedies provided for in s 18(1)(a), which specifically includes injunctions, may only be obtained on an application for judicial review.
[31] Here, the Plaintiffs have proceeded by way of an action, demonstrated by the Amended Statement of Claim. There is no underlying application for judicial review that could be the basis for the Court’s jurisdiction to grant an interlocutory injunction.
[32] In Grand Council of Crees, the Federal Court of Appeal rejected a submission that the traditional rule had been modified by either case law or the provisions of the then Federal Court Act. With respect to the latter, the Federal Court of Appeal stated that the provisions do not have the effect of abridging the traditional immunity of the Crown from injunctive relief and that if Parliament had wanted to modify or repeal such a well established principle, much clearer language would have been used (Grand Council of Crees at paras 3-5).
[33] In Centre d’information et d’animation c La Reine, 7 Admin LR 157, 1984 CarswellNat 184 (FCA) the appellants’ land was expropriated for the construction of an airport. By an action, they attacked the validity of the expropriation. Having learned during the course of the proceeding that the Crown intended to dispose of the land in dispute, they made an application for an interlocutory injunction seeking to suspend the project until the action was decided. The Federal Count of Appeal noted that the interlocutory injunction sought by the appellants was directed against the Crown and, in effect, what the appellants wanted to prevent was the cession by Her Majesty of the lands that were the subject of the dispute. The Federal Court of Appeal stated at paragraph 8 that, “There is a rule of long standing that the courts cannot issue an injunction against the Crown. This rule may seem archaic, but this Court has recently held that it still applies and that it was not abolished by the Federal Court Act…In these circumstances, I consider that this recent decision must be followed until the legislator or the Supreme Court of Canada decides otherwise” [footnote removed].
[34] The Plaintiffs’ point to no subsequent legislation or decision of the Supreme Court of Canada that would support that this long-standing rule has subsequently been abolished.
[35] Rather, in Mundle, the applicant sought a stay or an interlocutory injunction preventing the defendants from requiring the applicant report for duty. This was denied, and Justice Strayer addressed the intersection of s 22(1) of the Crown Liability and Proceedings Act with s 18(1) of the Federal Courts Act:
9 In my view, the relief sought can only be obtained in judicial review proceedings. This action is framed as an action as against the Crown and against one of the Minsters of the Crown. According to the jurisprudence of the Federal Court of Appeal an injunction may not be granted against the Crown. It has also been held in the Trial Division that injunctive relief is not available against any Minister of the Crown in Crown proceedings except perhaps where it is alleged he is doing something beyond his authority. This position has been codified by statute in s 22 of the Crown Liability and Proceedings Act…This, it must be emphasized, pertains to proceedings against the Crown. Such proceedings properly involve the contractual or proprietary obligations or interests of the Crown, its civil liability, its fiduciary duties, etc. Judicial review under s. 18 of the Federal Court Act is not a proceeding against the Crown. Rather it is a proceeding to review decisions of federal boards, commissions or other tribunals, or federal officers, and is normally brought against those who were adverse in interest to the applicant in respect of that decision. Section 18 is also broad enough to cover proceedings against the Attorney General of Canada to obtain declaratory relief against him. It is clear that pursuant to paragraph 18(1)(a) the court can issue an injunction against federal boards, commissions, officers, etc. in such proceedings. It was surely not the intention of Parliament to abolish, by s. 22 of the Crown Liability and Proceedings Act, the right to an injunction under s. 18 of the Federal Court Act. This makes clear that the two sections are dealing with different kinds of proceedings.
10 The net result is that an injunction or a stay in the nature of an injunction can be sought against servants of the federal Crown in the course of judicial review but not otherwise. The power to grant such a stay has been expressly given to the Trial Division in the present s. 18.2 of the Federal Court Act, and that power had been held to exist by implication prior to that time. Thus the plaintiff cannot succeed on this application for an injunction, made in the course of an action against the Crown because in such an action he cannot obtain injunctive relief either against the Crown or against a servant of the Crown.
11 Nor can the plaintiff obtain a stay or injunction under subs 18(1) of the Federal Court Act because of the provisions of subs 18(3)…This is not an application under s 18.1 which has its own procedure and a timetable thought appropriate for judicial review.
[Emphasis in bold added]
[36] Musqueam is referenced by both the Plaintiffs and the Attorney General. That case concerned an application for judicial review. There, Canada argued that the Court had no jurisdiction to issue an interlocutory injunction against it based on s 22 of the Crown Liability and Proceedings Act. The Court adopted the reasoning of Justice Strayer in Mundle and rejected the argument:
[68] There is a further important distinction in Paul, supra; the proceeding was an action under s. 17 of the Federal Court Act, R.S.C. 1985, c. F-7 and the Crown Liability and Proceedings Act. These proceedings are by way of judicial review under s. 18 of the Federal Court Act.
[69] In my view, Paul, supra has no application to a proceeding under s. 18 of the Federal Court Act. Judicial review is not a proceeding against the Crown, it is a challenge to decisions (acts or refusals to act) of a "federal board, commission or other tribunal". Those words are broadly defined in s. 2 of the Federal Court Act to encompass any body exercising jurisdiction or powers under a federal statute. The Canada Respondents fall into this class of body.
[70] It would have been inconsistent for Parliament to have established, on the one hand, a detailed scheme for the review of the exercise of statutory powers and to enshrine effective remedies, including injunctive relief under the Federal Court Act, and, on the other hand, have it rendered nugatory by the Crown Liability and Proceedings Act.
[71] In view of the legislative history of s. 18 of the Federal Court Act, its enactment subsequent to s. 22 of the Crown Liability and Proceedings Act, Parliament intended to address different matters under s. 18 of the Federal Court Act than those found in actions against the Crown.
[72] If the Canada Respondents were correct, then the Federal Court would have no power (and never had such power) to issue stays or interim or interlocutory injunctions no matter how necessary such remedy may be to preserve the status quo until a final decision on the merits. I cannot accept this as a proper reading of the two legislative provisions.
[37] In addition to the cases referenced by the Attorney General and Enoch, I note that in Meggeson v Canada (Attorney General), 2012 FCA 175, the Federal Court of Appeal stated the following about remedies under the Federal Courts Act:
[34] As noted by Binnie J. in Canada (Attorney General)) v. Telezone Inc., [2010] 3 S.C.R. 585 (“Telezone”) at para. 52, the remedies available on an application for judicial review pursuant to the Federal Courts Act are traditional administrative law remedies and declaratory and injunctive relief in the administrative law context, and these remedies do not include an award of damages. Moreover, the plaintiff in a damages action is not entitled to add a supplementary claim for a declaration or injunction to prevent the government from acting on a decision said to be tainted by illegality, since subsection 18(3) of the Federal Courts Act specifically provides hat [sic] the administrative law remedies set out in subsection 18(1) of that act “may be obtained only on an application for judicial review made under section 18.1.
[38] The above passage emphasises the point made in Mundle that ss 18(1) and (3) of the Federal Courts Act carve out the ability of the Federal Court to grant remedies, including injunctions, on applications for judicial review, but that these remedies are not similarly available in actions.
[39] Further, in Attawapiskat First Nation v Canada, 2012 FC 146 [Attawapiskat] the Attawapiskat First Nation [AFN] sought several forms of interlocutory relief including “an order enjoining the Minister from imposing third party management on the AFN pending hearing of AFN’s judicial review application” (at para 1). The underlying application for judicial review was filed to quash the appointment of a third party manager. The respondent in Attawapiskat argued that an interlocutory injunction was not available because of s 22(1) of the Crown Liability and Proceedings Act. Justice Phelan rejected the respondent’s argument because the relief sought was related to an application for judicial review:
[38] As was clear from Zenon Environmental Inc v Canada, 2005 FC 210, where Justice Strayer described the immunity of the Crown from general law to be an anomaly, the provision operates where there is an action against the Crown, but not where there is an attack on the authority exercised by a public official on the grounds that the official was acting outside of his statutory or constitutional powers. Section 22 of the Crown Liability and Proceedings Act merely codified the common law. Most particularly, s. 22 does not apply where the proceeding is a proper Federal Courts Act s. 18.1 application for judicial review.
[39] This Court has in several cases, including Musqueam Indian Band v Canada (Governor in Council), 2004 FC 579, ordered injunctive relief in the context of s. 18.1 Federal Courts Act judicial review proceedings. The prohibition of injunctions against the Crown is a long held common law principle which predates the more specific language of the Federal Courts Act.
(Also see Federation of Newfoundland Indians v Canada, 2011 FC 683 at para 81.)
[40] In short, there is a clear line of authority standing for the proposition that where an action is brought against the Crown, s 22(1) of the Crown Liability and Proceedings Act will, in the normal course, preclude the granting of an injunction against the Crown. This Court has no jurisdiction to grant an injunction in that circumstance as its jurisdiction is determined by ss 18(1) and (3) of the Federal Courts Act, which permits it to grant injunctive relief only where the underlying proceeding is an application for judicial review.
[41] Here, as demonstrated by the Plaintiffs’ Amended Statement of Claim, the Plaintiffs allege that Canada committed trespass and the tort of conversion. Accordingly, as their claim is founded on an action, this Court does not have jurisdiction to grant an interlocutory injunction enjoining the Minister from settling the Enoch Specific Claim.
[42] As to the Plaintiffs’ reliance on Hupacasath, in my view, it is misplaced. Hupacasath was an appeal from the decision of this Court (2013 FC 900) which concerned an application for judicial review regarding the pending ratification of the Agreement between the Government of Canada and the Government of the People’s Republic of China for the Promotion and Reciprocal Protection of Investments [CCFIPPA]. In the application for judicial review the applicant, Hupacasath First Nation, sought a declaration that Canada was required to engage in a process of consultation and accommodation with First Nations, including Hupacasath First Nation, prior to ratifying or taking other steps that would bind Canada under the CCFIPPA.
[43] There the Federal Court of Appeal found that the Federal Court system “has the jurisdiction to review exercises of federal Crown Prerogative power” (at paras 7, 54). Accordingly, the Federal Courts had jurisdiction over the matter. Hupacasath was not an action nor was the remedy sought an injunction. Here, conversely, the Plaintiffs have brought an action, not an application for judicial review of a decision by a Minister. They do not challenge the prerogative power of the Crown, nor is any such authority under review by this Court. When appearing before me the Plaintiffs submitted that Hupacasath demonstrated that the powers of this Court to issue injunctive relief have been expanded. Even if that were so, and I make no finding in that regard, it ignores that Hupacasath was a judicial review, not an action.
[44] As to Stagg, it too was an application for judicial review. It concerned the review of the termination of evacuee benefits provided to members of a First Nation whose community had been flooded. The application for judicial review was denied as the decision was found to be reasonable. However, the Attorney General had made a preliminary objection on the basis that the decision to terminate benefits was not subject to judicial review. The premise of that argument being that the federal government had no legal obligation to provide the benefits, which were instead an exercise of royal prerogative, and therefore subject to judicial review only on constitutional grounds. The Attorney General argued that the decision to provide such benefits was a discretionary policy decision unsuitable for review by the courts. Justice Grammond concluded that the decision was subject to judicial review.
[45] Again, I fail to see how this case assists the Plaintiffs. There is no decision that is the subject of judicial review in this matter, and the jurisdictional hurdle that they face is not related to the justiciability of a decision under review. It is concerned with the jurisdiction of the Court to grant the requested injunction.
[46] When appearing before me the Plaintiffs referred to Smoling v Canada (Ministry of Health), 1992 CanLii 8547 (FC), 8 Admin LR (2d) 285 [Smoling]. This too was an application for judicial review. Justice Rothstein, then of this Court, was not persuaded that an interlocutory injunction could not lie simply because the style of cause named the Crown as one of the respondents – the applicable regulations required the Minister of National Health and Welfare to take the action impugned by the judicial review – and found that, pursuant to s 18.2 of the Federal Court Act, on application for judicial review the Court could make such interim orders as it deemed appropriate until the final disposition of the application. Thus, in Smoling the Crown Liability and Proceedings Act was not squarely engaged and the matter was not an action; it was a judicial review.
[47] As to decision of the Supreme Court of British Columbia in Snuneymuxw First Nation et al v British Columbia, 2004 BCSC 205 [Snuneymuxw], which the Plaintiffs also raised at the hearing, this states that there is no doubt that an interlocutory injunction will not be issued against the Crown where it is acting within the sphere of its legislative authority, as demonstrated by s 11 of the British Columbia Crown Proceeding Act, RSBC 1996, c 89 (at para 52). However, the Court agreed with the plaintiffs in that case that s 11 could have no effect where the Province lacked legislative jurisdiction over the subject matter and that the Crown Proceeding Act could not expand the common law immunity of the Crown in cases where the Crown is alleged to be acting beyond its legislative competence. This is not the situation before me.
[48] When appearing before me the Plaintiffs argued that Snuneymuxw illustrates an exception to the rule precluding injunctive relief against the Crown in an action. Specifically, where the Crown acts illegally or unlawfully. The Plaintiffs submit that in the Amended Statement of Claim and in their correspondence, they set out what they describe as a “legal rights framework” which, they assert, binds the Crown. Therefore, as I understood the argument, by not responding to their demands that Canada engage directly with the Plaintiffs and by proceeding with the Proposed Settlement Agreement, the Crown would be acting in defiance of Court declarations and the law, thereby acting illegally, unlawfully, beyond its jurisdiction and in an ultra vires manner.
[49] It must first be pointed out that the “legal rights framework”, as coined by the Plaintiffs, is comprised of the fact that the CP was issued pursuant to the Indian Act and by reference, mainly, to four cases pertaining to CP rights: Joe v Findlay, 1981 CanLII 401 (BC CA), [1981] 3 CNLR 58; Boyer v Canada, [1986] 2 FC 393, 26 DLR (4th) 284 (FCA); Dale v Paul, 2000 ABQB 411 at para 4; and, Louie v Normand, 1993 CanLII 805 (BC SC), [1994] 3 CNLR 197. In my view, this is not an established “legal rights framework” that necessarily binds the Crown as might, for example, a test set out by the Supreme Court of Canada. It is merely the legal position taken by the Plaintiffs in support of their allegations against Enoch and Canada. Enoch has advised the Plaintiffs that they do not share that view, and why they do not. Canada has made it very clear that it is negotiating the Enoch Specific Claim with Enoch in accordance with the Specific Claims Policy and has encouraged the Plaintiffs to raise their concerns with Enoch for resolution. Given this, I do not agree with the Plaintiffs that because Canada did not engage with its asserted “legal rights framework” that Canada will be acting illegally or unlawfully by proceeding with the Proposed Settlement Agreement. Nor am I persuaded that Snuneymuxw establishes an exception to the rule precluding injunctive relief against the Crown in an action as the Plaintiffs submit. Rather, it is concerned with legislative competence.
[50] And, in any event, Snuneymuxw ultimately appears to have relied on the Supreme Court of Canada’s decision in RJR – MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311, 1994 CanLII 117 (SCC) [RJR – MacDonald] finding that, as a statutory court, the Supreme Court was required to find a statutory basis to grant an interlocutory injunction suspending legislation. However, even if the availability of that statutory authority that was in doubt, it would still be prepared to find jurisdiction in s 24(1) of the Canadian Charter of Rights and Freedoms, as a charter remedy should not be defeated due to a deficiency in the ancillary procedural powers of the Court to preserve the rights of the parties pending a final resolution of constitutional rights. From this, the British Columbia Supreme Court stated that it would seem that it too had the power to stay the effect of legislation in constitutional cases as it is a court of inherent jurisdiction. Therefore, if in constitutional cases it had the power to suspend, on an interlocutory basis, rights and obligations under legislation, then it must have the same power with respect to rights and obligation deriving from contract (Snuneymuxw at para 68). And, given that the principles governing stays and injunctions are identical, the British Columbia Supreme Court stated that it would be quite illogical if that Court had the power to suspend rights and obligations under a contract once it was entered into but could not suspend the ability of government to enter into the agreement in the first place.
[51] Leaving aside the logic of this conclusion, the decision has no application to this matter. The Federal Court is not a Court of inherent jurisdiction. It is a statutory court and its authority to issue interlocutory injunctions is prescribed by ss 18(1) and (3) of the Federal Courts Act. Nor is this a constitutional matter. Moreover, Snuneymuxw does not engage the interplay of s 18 of the Federal Courts Act with s 22 of the Crown Liability and Proceedings Act.
[52] In conclusion, the lack of jurisdiction of this Court to grant the motion seeking an injunction entirely disposes of the Plaintiffs’ motion. It also renders moot the motions of the Attorney General and Enoch seeking to strike out portions of the Plaintiffs’ evidence.
[53] Even if that had not been the case, for the reasons that follow I would not have granted the injunction.
Test for an injunction
[54] In R v Canadian Broadcasting Corp, 2018 SCC 5, the Supreme Court of Canada restated the well known three part conjunctive test to be met in order for an injunction to be granted:
[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.