Manitoba (A.G.) v. Metropolitan Stores Ltd.

Manitoba (A.G.) v. Metropolitan Stores Ltd.
Collection
Supreme Court Judgments
Date
1987-03-05
Report
[1987] 1 SCR 110
Case number
19609
Judges
Beetz, Jean; McIntyre, William Rogers; Lamer, Antonio; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
Manitoba
Subjects
Constitutional law
Courts
Notes
SCC Case Information: 19609
Decision Content
Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110
Attorney General of Manitoba Appellant
v.
Metropolitan Stores (MTS) Ltd. Respondent
and
Manitoba Food and Commercial Workers, Local 832 Respondent
and
The Manitoba Labour Board Respondent
indexed as: manitoba (attorney general) v. metropolitan stores ltd.
File No.: 19609.
1986: June 20; 1987: March 5.
Present: Beetz, McIntyre, Lamer, Le Dain and La Forest JJ.
on appeal from the court of appeal for manitoba
Courts ‑‑ Procedure ‑‑ Stay of proceedings and interlocutory injunctions ‑‑ Constitutional validity of legislation challenged ‑‑ Board proposing to act pursuant to challenged legislation ‑‑ Motion to stay Board's proceedings until determination of constitutional validity of legislation ‑‑ Decision to deny motion overturned by Court of Appeal ‑‑ Principle governing judge's discretionary power to grant stay ‑‑ Appropriateness of Court of Appeal's intervention in motion judge's discretion ‑‑ Labour Relations Act, C.C.S.M., c. L10, s. 75.1.
Constitutional law ‑‑ Charter of Rights ‑‑ Currency of impugned legislation ‑‑ Whether or not presumption of constitutionality when legislation challenged under Charter .
The Manitoba Labour Board was empowered by The Labour Relations Act to impose a first collective agreement. When the union applied to have the Board impose a first contract, the employer commenced proceedings in the Manitoba Court of Queen's Bench to have that power declared invalid as contravening the Canadian Charter of Rights and Freedoms . Within the framework of this action, the employer applied by way of motion in the Court of Queen's Bench for an order to stay The Manitoba Labour Board until the issue of the legislation's validity had been heard. The motion was denied. The Board, unfettered by a stay order, indicated that a collective agreement would be imposed if the parties failed to reach an agreement. The Manitoba Court of Appeal allowed the employer's appeal from the decision denying the stay order and granted a stay. At issue here are: (1) whether the Court of Appeal erred in failing to recognize a presumption of constitutional validity where legislation is challenged under the Charter ; (2) what principles govern the exercise of a Superior Court Judge's discretionary power to order a stay of proceedings until the constitutionality of impugned legislation has been determined; and (3) whether the Court of Appeal's intervention in the motion judge's discretion was appropriate.
Held: The appeal should be allowed.
The innovative and evolutive character of the Canadian Charter of Rights and Freedoms conflicts with the presumption of constitutional validity in its literal meaning‑‑that a legislative provision challenged on the basis of the Charter can be presumed to be consistent with the Charter and of full force and effect.
A stay of proceedings and an interlocutory injunction are remedies of the same nature and should be governed by the same rules. In order to better delineate the situations in which it is just and equitable to grant an interlocutory injunction, the courts currently apply three main tests.
The first test is a preliminary and tentative assessment of the merits of the case. The traditional way consists in asking whether the litigant who seeks the interlocutory injunction can make out a prima facie case. A more recent formulation holds that all that is necessary is to satisfy the court that there is a serious question to be tried as opposed to a frivolous or vexatious claim. The "serious question" test is sufficient in a case involving the constitutional challenge of a law where the public interest must be taken into consideration in the balance of convenience. The second test addresses the question of irreparable harm. The third test, called the balance of convenience, is a determination of which of the two parties will suffer the greater harm from the grant or refusal of an interlocutory injunction, pending a decision on the merits.
When one contrasts the uncertainty in which a court finds itself with respect to the merits of the constitutional challenge of a law at the interlocutory stage, with the sometimes far‑reaching albeit temporary practical consequences of an interlocutory injunction, not only for the parties to the litigation but also for the public at large, it becomes evident that the courts ought not to be restricted to the traditional application of the balance of convenience.
It is thus necessary to weigh in the balance of convenience the public interest as well as the interest of the parties, and in cases involving interlocutory injunctions directed at statutory authorities, it is erroneous to deal with these authorities as if they had any interest distinct from that of the public to which they owe the duties imposed upon them by statute. Such is the rule even where there is a prima facie case against the enforcement agency, such as one which would require the coming into play of s. 1 of the Charter .
The granting of an interlocutory injunction generally works in one of two ways. Either the law enforcement agency is enjoined from enforcing the impugned provisions in all respects until the question of their validity has been finally determined, or the law enforcement agency is enjoined from enforcing the impugned provisions with respect to the specific litigant who requests the granting of a stay. In the first branch of the alternative, the operation of the impugned provisions is temporarily suspended for all practical purposes. Instances of this type can be referred to as suspension cases. In the second branch of the alternative, the litigant who is granted a stay is in fact exempted from the impugned legislation which, in the meanwhile, continues to operate with respect to others. Instances of this other type are called exemption cases. The rule of the public interest should not be interpreted as meaning that interlocutory injunctive relief will only be granted in exceptional or rare circumstances, at least in exemption cases when the impugned provisions are in the nature of regulations applicable to a relatively limited number of individuals and where no significant harm would be suffered by the public. On the other hand, the public interest normally carries greater weight in favour of compliance with existing legislation in suspension cases when the impugned provisions are broad and general and such as to affect a great many persons.
Finally, in cases where an interlocutory injunction issues in accordance with the above‑stated principles, the parties should generally be required to abide by the dates of a preferential calendar.
Here, the motion judge applied the correct principles in taking into consideration the public interest and the inhibitory impact of a stay of proceedings upon the Board, in addition to its effect upon the parties. The Court of Appeal was not justified in substituting its discretion for that of the motion judge: the emergence of new facts after the judgment of first instance must be of such a nature as to substantially affect the decision of the motion judge in order to justify a Court of Appeal to exercise a fresh discretion.
Cases Cited
Disapproved: Home Oil Distributors Ltd. v. Attorney‑General for British Columbia, [1939] 1 D.L.R. 573; considered: American Cyanamid Co. v. Ethicon Ltd., [1975] 1 All E.R. 504; Morgentaler v. Ackroyd (1983), 42 O.R. 659; Société de développement de la Baie James c. Chef Robert Kanatewat, [1975] C.A. 166; Procureur général du Québec c. Lavigne, [1980] C.A. 25, reversing [1980] C.S. 318; Campbell Motors Ltd. v. Gordon, [1946] 4 D.L.R. 36; Law Society of Alberta v. Black (1984), 8 D.L.R. (4th) 346, dismissing (1983), 144 D.L.R. (3d) 439; referred to: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Therens, [1985] 1 S.C.R. 613; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; McKay v. The Queen, [1965] S.C.R. 798; Re Federal Republic of Germany and Rauca (1983), 145 D.L.R. (3d) 638; Black v. Law Society of Alberta, [1986] 3 W.W.R. 590, leave to appeal granted [1986] 1 S.C.R. x; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; Boeckh v. Gowganda‑Queen Mines, Ltd. (1912), 6 D.L.R. 292; Battle Creek Toasted Corn Flake Co. v. Kellogg Toasted Corn Flake Co. (1923), 55 O.L.R. 127; Haldimand‑Norfolk Regional Health Unit and Ontario Nurses' Association, Ont. Div. Ct., January 17, 1979, Galligan, Van Camp and Henry JJ. (unreported); Daciuk v. Manitoba Labour Board, Man. Q.B., June 25, 1985, Dureault J. (unreported); Metropolitan Toronto School Board v. Minister of Education (1985), 6 C.P.C. (2d) 281; Chesapeake and Ohio Railway Co. v. Ball, [1953] O.R. 843; Aetna Financial Services Ltd. v. Feigelman, [1985] 1 S.C.R. 2; Weisfeld v. R. (1985), 16 C.R.R. 24; Turmel v. Canadian Radio‑Television and Telecommunications Commission (1985), 16 C.R.R. 9; Marchand v. Simcoe County Board of Education (1984), 10 C.R.R. 169; Gould v. Attorney General of Canada, [1984] 2 S.C.R. 124, aff. [1984] 1 F.C. 1133, setting aside [1984s <) 1 F.C. 1119; Cayne v. Global Natural Resources plc., [1984] 1 All E.R. 225; R. v. Jones, [1986] 2 S.C.R. 284; Attorney General of Quebec v. Quebec Association of Protestant School Boards, [1984] 2 S.C.R. 66; Attorney General of Quebec v. Greater Hull School Board, [1984] 2 S.C.R. 575; Pacific Trollers Association v. Attorney General of Canada, [1984] 1 F.C. 846; Attorney General of Canada v. Fishing Vessel Owners' Association of B.C., [1985] 1 F.C. 791; Smith v. Inner London Education Authority, [1978] 1 All E.R. 411; Ontario Jockey Club v. Smith (1922), 22 O.W.N. 373; Bregzis v. University of Toronto (1986), 9 C.C.E.L. 282; Vancouver General Hospital v. Stoffman (1985), 23 D.L.R. (4th) 146; Rio Hotel Ltd. v. Liquor Licensing Board, [1986] 2 S.C.R. ix; Home Oil Distributors Ltd. v. Attorney‑General of British Columbia, [1940] S.C.R. 444; Société Asbestos Ltée c. Société nationale de l'amiante, [1979] C.A. 342; Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042; Garden Cottage Foods Ltd. v. Milk Marketing Board, [1983] 2 All E.R. 770.
Statutes and Regulations Cited
Act respecting municipal taxation and providing amendments to certain legislation, S.Q. 1979, c. 72.
Canada Elections Act, R.S.C. 1970 (1st Supp.), c. 14, s. 14(4)(e).
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (a), (b), (d), 3 , 6(2) , 7 , 15 , 23 , 24 , 32(2) .
Coal and Petroleum Products Control Board Act, S.B.C. 1937, c. 8.
Code of Civil Procedure, art. 751, 752.
Constitution Act, 1867, ss. 91 , 92 , 93 , 133 .
Criminal Code, R.S.C. 1970, c. C‑34, s. 251.
Fisheries Act, R.S.C. 1970, c. F‑14.
Hospital Act, R.S.B.C. 1979, c. 176.
Human Rights Code, 1981, S.O. 1981, c. 53, s. 9(a).
James Bay Region Development Act, S.Q. 1971, c. 34.
Labour Relations Act, C.C.S.M., c. L10, s. 75.1, enacted by S.M. 1984‑85, c. 21, s. 37.
National Emergency Transitional Powers Act, 1945, S.C. 1945, c. 25, s. 2(1)(c).
Pacific Commercial Salmon Fishery Regulations, C.R.C. 1978, c. 823.
Supreme Court of Judicature Act, 1873, 36 & 37 Vict., c. 66, ss. 24, 25.
Authors Cited
Carlson, Patricia. "Granting an Interlocutory Injunction: What is the Test?" (1982), 12 Man. L.J. 109.
Côté, Pierre‑André. "La préséance de la Charte canadienne des droits et libertés ," dans La Charte canadienne des droits et libertés : Concepts et impacts. Montréal: Les éditions Thémis, 1984.
Gibson, Dale. The Law of the Charter: General Principles. Calgary: Carswells, 1986.
Halsbury's Laws of England, vol. 24, 4th ed. London: Butterworths, 1979.
Hanbury, Harold Grenville and Ronald Harling Maudsley. Modern Equity, 12th ed. By Jill E. Martin. London: Stevens & Sons, 1985.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.
Magnet, Joseph Eliot. "Jurisdictional Fact, Constitutional Fact and the Presumption of Constitutionality" (1980), 11 Man. L.J. 21.
McLeod, Roderick M., et al., eds. The Canadian Char‑ ter of Rights: The Prosecution and Defence of Criminal and Other Statutory Offences, vol. 1. Toronto: Carswells, 1983.
Rogers, Brian MacLeod and George W. Hately. "Getting the Pre‑Trial Injunction" (1982), 60 Can. Bar Rev. 1.
Sharpe, Robert J. Injunctions and Specific Performance. Toronto: Canada Law Book, 1983.
APPEAL from a judgment of the Manitoba Court of Appeal (1985), 37 Man. R. (2d) 181, ordering a stay of proceedings pending disposition of a constitutional challenge and allowing an appeal from a decision of Krindle J. (1985), 36 Man. R. (2d) 152, denying an application for a stay of proceedings before The Manitoba Labour Board. Appeal allowed.
Stuart Whitley and Valerie J. Matthews‑Lemieux, for the appellant.
Walter L. Ritchie, Q.C., and Robin Kersey, for the respondent Metropolitan Stores (MTS) Limited.
A. R. McGregor, Q.C., and D. M. Shrom, for the respondent the Manitoba Food and Commercial Workers, Local 832.
David Gisser, for the respondent The Manitoba Labour Board.
The judgment of the Court was delivered by
1. Beetz J.‑‑
I The Facts, the Proceedings and the Judgments of the Courts Below
2. The facts are not in dispute. Here is how the Manitoba Court of Appeal (1985), 37 Man. R. (2d) 181, described them at p. 181:
Under the terms of the Labour Relations Act, C.C.S.M., c. L‑l0, there is provision allowing the Manitoba Labour Board to impose a first collective agreement upon the employer and the union, in circumstances where bargaining for a first contract has not been fruitful. In this particular case the respondent union is the certified bargaining agent, but has not been successful in negotiating a first collective agreement with the appellant employer. The union applied to have the Manitoba Labour Board impose a first contract.
The employer then commenced proceedings, by way of originating notice of motion in the Manitoba Court of Queen's Bench, to have those provisions of the Labour Relations Act under which a first collective agreement might be imposed, declared invalid, as contravening the Charter of Rights and Freedoms. Within the framework of that action, the employer then applied by way of motion for an order to stay the Manitoba Labour Board until such time as the issue as to the validity of the legislation might be heard by a judge of the Court of Queen's Bench. The motion for a stay was denied by Krindle, J. (see 36 Man. R. (2d) 152). The board, unfettered by a stay order, then indicated that if the parties failed to conclude a first collective agreement through further negotiations by September 25, l985, the board would proceed to impose a first contract upon the parties within 30 days thereafter.
3. The employer launched an appeal from the decision of Krindle J. refusing a stay order. The Manitoba Court of Appeal allowed the appeal and granted a stay.
4. The reasons of Krindle J. (1985), 36 Man. R. (2d) 152, for refusing a stay read in part as follows at pp. 153‑54:
The employer argues that the granting of a stay will maintain the status quo between the parties until the constitutional challenge has been dealt with. I cannot accept that argument. The entire notion of maintaining a status quo in these circumstances is fanciful. As of the date of the application for certification there were 22 employees in the unit. At the date this matter came to Court, only five of the original 22 continued to be employed. The industry in question is a high turn‑over one with no history at all of trade union involvement. At some point the union was able to gain the support of a majority of the 22. Nine employees wrote in letters opposing the certification of the union.
We are not here looking to a strong base of support that can withstand lengthy periods of having the union appear to do nothing whatsoever for these people. It is acknowledged by both counsel that this case may well have to wend its way up to the Supreme Court of Canada for final resolution, a matter which will take years. Considering the high turn‑over rate in the unit and the lack of union tradition in the unit, it seems to me to be self evident that the protracted failure of the union to accomplish anything for the employees in the unit virtually guarantees an erosion of support for the bargaining agent. The right of 55% of the employees within the unit to compell [sic] decertification of the bargaining agent, the right of another union to apply for certification on behalf of those employees, are rights not affected by the stay of proceedings. The status quo cannot be frozen. Attempts to freeze it will prejudice the position of the union.
The employer argues that the imposition of a first contract may prejudice the position of the employer. It may give to the union a semblance of bargaining strength which the union does not in fact possess. It may permit the union to benefit from a contract which, left to its own devices, it could not have successfully negotiated. That, however, was the object of the legislation....
Counsel for the employer also raises concern about the contents of the agreement to be imposed. The unit in question is situate in a mall on an Indian Reservation outside The Pas. The terms of the lease between the employer and the owner of the shopping mall contain a provision regarding the employment of a certain minimum percentage of Indian people. That requirement may cause problems if the usual seniority clauses present in most agreements are simply rubber stamped into this first agreement. It may well be that the traditional seniority provisions will have to be modified somewhat in this case to accommodate the requirements of the lease. Surely, though, that is a matter to be brought to the attention of the Board during the course of the Board's hearings into settling the terms of the agreement. I cannot imagine that the Board would fail to give consideration to such a problem in arriving at those terms.
...
It would seem to me that the granting of a stay in this case would invite the granting of stays in most other cases of applications for first agreements or applications involving the mandatory inclusion of sections within negotiated agreements. In effect, for a two or three year period, prior to any finding of invalidity of those sections, their operation would be suspended, suspended in circumstances where the status quo cannot, practically speaking, be maintained.
In my opinion, in both the circumstances of this particular case and more generally, the balance of convenience favours proceeding as though the sections were valid unless and until the contrary is found.
5. In reviewing the decision of the learned motion judge, the Manitoba Court of Appeal did not make any finding that Krindle J. was in error in concluding that stay ought to be refused, or that she had declined to exercise her discretion or had acted on a wrong principle in exercising her discretion. The Court of Appeal, at pp. 181‑83, exercised fresh discretion based on additional considerations which, in its view, were not before the motion judge:
The appeal first came before this court on September 10, 1985 before a panel consisting of Matas, Huband and Philp, JJ.A. Before any hearing took place on the merits of the appeal, the court adjourned for a few moments, consulted with Court of Queen's Bench authorities as to the prospect of an earlier date for a hearing in the Queen's Bench of the employer's attack on the legislation, resumed the hearing and informed counsel that one day could be set aside for such a hearing on September 25, 1985. This would enable a hearing on the validity of the legislation to take place before any collective agreement could possibly be imposed. Counsel for employer, union and the Manitoba Labour Board, agreed to the September 25th hearing date....
It was understood by all concerned that the one‑day hearing would proceed on September 25th. On that date counsel appeared before Glowacki, J., of the Court of Queen's Bench, but in addition, counsel representing the Canadian Labour Congress also appeared, requesting permission to intervene. Glowacki, J., was advised by counsel for the C.L.C. that it wished to present a considerable amount of evidence relative to the question which might arise as to whether the impugned legislation is a reasonable limit "prescribed by law as can be demonstrably justified in a free and democratic society" in accordance with s. 1 of the Charter of Rights and Freedoms.
Instead of the planned one‑day hearing, a hearing of several days' duration was envisaged. Instead of the matter proceeding on September 25th, Glowacki, J., fixed a hearing date for some time in December 1985.
Once again the prospect of a collective agreement being imposed before a hearing to determine the validity of the legislation became real. Counsel for the employer immediately requested a hearing in this court on the appeal from the order of Krindle, J., denying the stay order which had been adjourned sine die on September 10th. The present panel heard the appeal on the afternoon of September 25th.
At the conclusion of that hearing, it was suggested to counsel for the Manitoba Labour Board, that in order to expedite matters and obtain a decision on the validity of the legislation, it was open to the Manitoba Labour Board to direct a reference to this court. We are informed that there are other cases besides this one where provisions of the Labour Relations Act are under attack as violating the Charter , and it was suggested that these matters might also be resolved by way of a direct reference to this court. We have now been informed however that the board "... will not, at this time, be requesting a reference to the Court of Appeal pursuant to the Labour Relations Act".
...
By its originating notice of motion, the employer raises a serious challenge to the constitutional validity of various sections of the Labour Relations Act. As previously noted, other provisions in the Act are under attack in other litigation. When Krindle, J., denied the initial request for a stay order, she was not made aware of either the proposed new intervention in this case by the Canadian Labour Congress, nor the other challenges to the Act, based upon the Charter in other litigation.
There is also a new factor, in that the merits of the attack on the legislation could have been expedited in the Court of Queen's Bench, and a hearing to determine the validity of the impugned sections could have taken place in late September, but for the intervention of the Canadian Labour Congress.
In short, this is no longer a matter where this court is reviewing a discretionary order made by the learned motions judge. Additional considerations affecting the exercise of discretion have now been raised, allowing this court to exercise a fresh discretion.
In our view it would be unwise to permit the Manitoba Labour Board to impose a new first contract and then some few months later to find the legislation set aside as unconstitutional as being contrary to the Charter .
A stay is therefore granted, with costs in the cause. We urge that the parties proceed with a hearing on the merits of the employer's motion with dispatch.
6. In allowing the appeal, the Manitoba Court of Appeal ordered that:
all proceedings before the Manitoba Labour Board relating to the application for settlement of a first collective agreement between the Applicant and the Respondent Manitoba Food and Commercial Workers, Local 832, pursuant to Section 75.1 of The Labour Relations Act (Case No. 586/85/LRA), be stayed until after this action has been heard and determined by the Court of Queen's Bench, or further Order of this Court.
7. It is from this interlocutory order that the Attorney General is appealing by leave of this Court. He is supported by the Manitoba Food and Commercial Workers, Local 832, (the "Union") and by The Manitoba Labour Board, (the "Board").
II The Issues
8. The points in issue, according to appellant's factum, are as follows:
1. Did the Manitoba Court of Appeal err in failing to recognize that a presumption of constitutional validity continues to exist where legislation is being challenged on the basis of the Canadian Charter of Rights and Freedoms ?
2. Did the Manitoba Court of Appeal err in exercising its discretionary power to grant a stay of proceedings until the constitutional validity of section 75.1 of The Labour Relations Act, C.C.S.M., c. L10 has been determined, since the effect of the stay is to render the legislation inoperative?
3. Did the Manitoba Court of Appeal err when it interfered with the exercise of the trial Judge's discretion in refusing to grant a stay of proceedings?
4. Did the Manitoba Court of Appeal apply proper legal principles when it decided that proceedings before a quasi‑judicial tribunal; namely, a labour board constituted under provincial legislation, should be stayed?
9. The first issue stated by the appellant is related to the existence of a so‑called presumption of constitutional validity of a law when challenged under the Canadian Charter of Rights and Freedoms and will be dealt with first.
10. The second and fourth issues essentially address the same question: in a case where the constitutionality of a legislative provision is challenged, what principles govern the exercise by a Superior Court judge of his discretionary power to order a stay of proceedings until it has been determined whether the impugned provision is constitutional? This issue arises not only in Charter cases but also in other constitutional cases and I propose to review some cases dealing with the distribution of powers between Parliament and the legislatures and some administrative law decisions having to do with the vires of delegated legislation: as I read those cases, there is no essential difference between this type of cases and the Charter cases in so far as the principles governing the grant of interlocutory injunctive relief are concerned.
11. Finally, the third issue raises the question of the appropriateness of the Court of Appeal's intervention in the motion judge's discretion; it will be examined in the last part of this judgment.
III The Canadian Charter of Rights and Freedoms and the So‑called Presumption of Constitutional Validity
12. According to the appellant, the Manitoba Court of Appeal erred in granting a stay of the proceedings since it failed "to recognize that a presumption of constitutional validity continues to exist where legislation is being challenged on the basis of the Canadian Charter of Rights and Freedoms ".
13. I should state at the outset that, while I have reached the conclusion that the appeal ought to be allowed, it is not on account of what the appellant calls a presumption of constitutional validity.
14. We have not been told much about the nature, weight, scope and meaning of that presumption. For lack of a better definition, I must assume that the so‑called presumption means exactly what it says, namely, that a legislative provision challenged on the basis of the Charter must be presumed to be consistent with the Charter and of full force and effect.
15. Not only do I find such a presumption not helpful, but, with respect, I find it positively misleading. If it is a presumption strictly so‑called, surely it is a rebuttable one. Otherwise a stay of proceedings could never be granted. But to say that the presumption is rebuttable is to open the way for a rebuttal. This in its turn involves a consideration of the merits of the case which is generally not possible at the interlocutory stage.
16. A reason of principle related to the character of the Charter also persuades me to dismiss the appellant's submission based on the presumption of constitutional validity. Even when one has reached the merits, there is no room for the presumption of constitutional validity within the literal meaning suggested above: the innovative and evolutive character of the Canadian Charter of Rights and Freedoms conflicts with the idea that a legislative provision can be presumed to be consistent with the Charter .
17. As was said by Lamer J., speaking for himself and five other members of the Court in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 496:
The truly novel features of the Constitution Act, 1982 are that it has sanctioned the process of constitutional adjudication and has extended its scope so as to encompass a broader range of values.
18. The Charter extends its protection to rights of a new type such as mobility rights and minority language educational rights. It is significant also that the effect of s. 15 , relating to equality rights, was delayed by three years pursuant to s. 32(2) of the Charter , presumably to give time to Parliament and the legislatures to prepare for the necessary adjustments.
19. Furthermore, the innovative character of the Charter affects even traditional rights already recognized before the coming into force of the Charter and which must now be viewed in a new light. In R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, this Court declined to restrict the meaning of the freedom of conscience and religion guaranteed by the Charter to such interpretation of this freedom as had prevailed before the Charter . At pages 343‑44 of the Big M case, Dickson J., as he then was, speaking for himself and four other members of the Court, wrote as follows:
...it is certain that the Canadian Charter of Rights and Freedoms does not simply "recognize and declare" existing rights as they were circumscribed by legislation current at the time of the Charter 's entrenchment. The language of the Charter is imperative. It avoids any reference to existing or continuing rights but rather proclaims in the ringing terms of s. 2 that:
2. Everyone has the following fundamental freedoms:
(a) Freedom of conscience and religion;
I agree with the submission of the respondent that the Charter is intended to set a standard upon which present as well as future legislation is to be tested. Therefore the meaning of the concept of freedom of conscience and religion is not to be determined solely by the degree to which that right was enjoyed by Canadians prior to the proclamation of the Charter .
20. Similarly, as traditional a right as the presumption of innocence is given a greater degree of protection under the Charter than it has received prior to the Charter : R. v. Oakes, [1986] l S.C.R. 103.
21. Thus, the setting out of certain rights and freedoms in the Charter has not frozen their content. The meaning of those rights and freedoms has in many cases evolved, and, given the nature of the Charter , must remain susceptible to evolve in the future:
In my opinion the premise that the framers of the Charter must be presumed to have intended that the words used by it should be given the meaning which had been given to them by judicial decisions at the time the Charter was enacted is not a reliable guide to its interpretation and application. By its very nature a constitutional charter of rights and freedoms must use general language which is capable of development and adaptation by the courts.
(Per Le Dain J., dissenting, although not on this point, in R. v. Therens, [1985] 1 S.C.R. 613, at p. 638.)
22. The views of Le Dain J. reflect those of Dickson J., as he then was, in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 155:
The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights , for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers.
23. In my view, the presumption of constitutional validity understood in the literal sense mentioned above, and whether it is applied to laws enacted prior to the Charter or after the Charter , is not compatible with the innovative and evolutive character of this constitutional instrument.
24. This proposition should not be taken as necessarily affecting what has sometimes been designated, perhaps improperly, as other meanings of the "presumption of constitutionality".
25. One such meaning refers to the elementary rule of legal procedure according to which "the one who asserts must prove" and "the onus of establishing that legislation violates the Constitution undeniably lies with those who oppose the legislation": D. Gibson, The Law of the Charter: General Principles (1986), pp. 56 and 58. By definition, such a rule is essentially directed to the merits of the case.
26. Still another meaning of the "presumption of constitutionality" is the rule of construction under which an impugned statute ought to be construed, whenever possible, in such a way as to make it conform to the Constitution. This rule of construction is well known and generally accepted and applied under the provisions of the Constitution relating to the distribution of powers between Parliament and the provincial legislatures. It is this rule which has led to the "reading down" of certain statutes drafted in terms sufficiently broad to reach objects not within the competence of the enacting legislature: McKay v. The Queen, [1965] S.C.R. 798. In the Southam case, supra, a Charter case, it was held at p. 169 that it "should not fall to the courts to fill in the details that will render legislative lacunae constitutional". But that was a question of "reading in", not "reading down". The extent to which this rule of construction otherwise applies, if at all, in the field of the Charter is a matter of controversy: Re Federal Republic of Germany and Rauca (1983), 145 D.L.R. (3d) 638, at p. 658 (Ont. C.A.); Black v. Law Society of Alberta, [1986] 3 W.W.R. 590, at p. 628 (Alta. C.A.), leave to appeal has been granted, [1986] 1 S.C.R. x; P.‑A. Côté, "La préséance de la Charte canadienne des droits et libertés ," in La Charte canadienne des droits et libertés : Concepts et impacts (1984), pp. 124‑26; R. M. McLeod, et al., eds., The Canadian Charter of Rights: The Prosecution and Defence of Criminal and Other Statutory Offences (1983), vol. 1, pp. 2‑198 to 2‑209; P. W. Hogg, Constitutional Law of Canada (2nd ed. 1985), p. 327; D. Gibson, The Law of the Charter: General Principles (1986), pp. 57, 58 and 186‑88. I refrain from expressing any view on this question which also arises only when the merits are being considered.
IV The Principles Which Govern the Exercise of the Discretionary Power to Order a Stay of Proceedings Pending the Constitutional Challenge of a Legislative Provision
27. The second question in issue involves a study of the principles which govern the granting of a stay of proceedings while the constitutionality of a legislative provision is challenged in court by the plaintiff.
28. It should be observed that none of the parties has disputed the existence of the discretionary power to order a stay in such a case and, in my view, the parties were right in conceding that the trial judge had jurisdiction to order a stay: see Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307, at p. 330.
(1) The Usual Conditions for the Granting of a Stay
29. Prior to the Supreme Court of Judicature Act, 1873, 36 & 37 Vict., c. 66, no distinction between injunctions restraining proceedings and other sorts of injunctions was drawn in English law (Halsbury's Laws of England, vol. 24, 4th ed., p. 577). The Parliament of Westminster then enacted the Act referred to above, which in the main has been adopted by all of the provinces of Canada except Quebec where the distinction between equity and law is unknown. The distinction the English Judicature Act created between a stay of proceedings and an injunction was, however, essentially procedural. Section 24(5) stated that no cause or proceeding at any time pending in the High Court of Justice, or before the Court of Appeal, shall be restrained by prohibition or injunction provided that "any person, whether a party or not to any such cause or matter, who would have been entitled, if this Act had not passed, to apply to any Court to restrain the prosecution thereof...shall be at liberty to apply to the said Courts respectively, by motion in a summary way, for a stay of proceedings in such cause or matter, either generally, or so far as may be necessary for the purposes of justice; and the Court shall thereupon make such Order as shall be just." Section 25(8) of the same Act provided further that an injunction may be granted in all cases in which it shall appear to the Court to be "just and convenient" that such order should be made. See also Boeckh v. Gowganda‑Queen Mines, Ltd. (1912), 6 D.L.R. 292.
30. A stay of proceedings and an interlocutory injunction are remedies of the same nature. In the absence of a different test prescribed by statute, they have sufficient characteristics in common to be governed by the same rules and the courts have rightly tended to apply to the granting of interlocutory stay the principles which they follow with respect to interlocutory injunctions: Battle Creek Toasted Corn Flake Co. v. Kellogg Toasted Corn Flake Co. (1923), 55 O.L.R. 127, at p. 132; Haldimand‑Norfolk Regional Health Unit and Ontario Nurses' Association, Ont. Div. Ct., January 17, 1979, Galligan, Van Camp and Henry JJ. (unreported); Daciuk v. Manitoba Labour Board, Man. Q.B., June 25, 1985, Dureault J. (unreported); Metropolitan Toronto School Board v. Minister of Education (1985), 6 C.P.C. (2d) 28l (Ont. Div. Ct.), at p. 292, leave to appeal to the Court of Appeal refused.
31. The case law is abundant as well as relatively fluid with regard to the tests developed by the courts in order to help better delineate the situations in which it is just and equitable to grant an interlocutory injunction. Reviewing it is the function of doctrinal analysis rather than that of judicial decision‑making and I simply propose to give a bare outline of the three main tests currently applied.
32. The first test is a preliminary and tentative assessment of the merits of the case, but there is more than one way to describe this first test. The traditional way consists in asking whether the litigant who seeks the interlocutory injunction can make out a prima facie case. The injunction will be refused unless he can: Chesapeake and Ohio Railway Co. v. Ball, [1953] O.R. 843, per McRuer C.J.H.C., at pp. 854‑55. The House of Lords has somewhat relaxed this first test in American Cyanamid Co. v. Ethicon Ltd., [1975] l All E.R. 504, where it held that all that was necessary to meet this test was to satisfy the Court that there was a serious question to be tried as opposed to a frivolous or vexatious claim. Estey J. speaking for himself and five other members of the Court in a unanimous judgment referred to but did not comment upon this difference in Aetna Financial Services Ltd. v. Feigelman, [1985] l S.C.R. 2, at pp. 9‑10.
33. American Cyanamid has been followed on this point in many Canadian and English cases, but it has also been rejected in several other instances and it does not appear to be followed in Australia: see the commentaries and cases referred to in P. Carlson