A-148-81
Grand Council of the Crees (of Quebec), the Cree
Regional Authority, the Cree Board of Health and
Social Services of James Bay, the Cree Bands of
Fort George, Old Factory, Eastmain, Rupert
House, Waswanipi, Mistassini, Nemaska and
Great Whale River, Chief Sam Tapiatic, Chief
Walter Hughboy, Chief Edward Gilpin Jr., Chief
Samuel Shecapio, Chief Billy Ottereyes, Chief
Henry Mianscum, Chief George Wapachee, Chief
Robbie Dick, Grand Chief Billy Diamond, Andrew
Moar, Executive Chief Philip Awashish, Steven
Bearskin, Abel Kitchen, Albert Diamond, Violet
Pachanos, Robert Kanatewat and James Bobbish
(Appellants)
v.
The Queen, the Honourable John Munro and the
Honourable Monique Bégin (Respondents)
Court of Appeal, Pratte and Heald JJ. and
Lalande D.J.—Montreal, June 3, 1981.
Prerogative writs — Interlocutory injunction — Appeal
from decision of Trial Division dismissing an application for
interlocutory injunction against the respondents — Trial
Judge held that he had no power to issue an injunction against
the Crown — Trial Judge also refused to issue injunction
against the two respondent Ministers since the duties that the
appellants want performed are "duties of a general adminis
trative nature for which they are responsible to the Crown" —
Whether Crown is subject to injunctive relief — Whether a
Minister of the Crown, acting as a servant of the Crown, is
subject to a mandatory order — Appeal dismissed — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 2, 17(1), 18, 44.
Société Asbestos Ltée v. Société nationale de l'Amiante
[1979] C.A. (Que.) 342, referred to. The Minister of
Finance of British Columbia v. The King [1935] S.C.R.
278, followed.
APPEAL.
COUNSEL:
J. O'Reilly and R. Pratt for appellants.
James Mabbutt for respondents.
SOLICITORS:
O'Reilly & Grodinsky, Montreal, for appel
lants.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
delivered orally in English by
PRATTE J.: This is an appeal from a judgment
of Mr. Justice Marceau of the Trial Division
dismissing an application for an interlocutory
injunction against the respondents.
Mr. Justice Marceau's judgment was based on
the view that he did not have the power to issue an
injunction against the Crown and that this was not
a case where an injunction should issue against
Ministers of the Crown since the duties that the
applicants wish the respondent Ministers to per
form are "duties of a general administrative nature
for which they are responsible to the Crown not to
the applicants".
Counsel for the appellants first argued that the
immunity of the Crown from injunctive relief is no
longer as absolute as assumed by the judgment
under attack. He said that the traditional rule has
been recently modified by judicial precedents and,
as an example of that evolution, he referred us to
the decision of the Çourt of Appeal of Quebec in
Société Asbestos Ltée v. Société nationale de
l'Amiante [ 1979] C.A. 342, where that Court
issued an injunction against the Crown in right of
the Province of Quebec. He also said that the
traditional rule has been modified by the Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, par
ticularly by subsection 17(1), when it is read with
the definition of the expression "relief' in section
2, and by sections 18 and 44.
Those contentions must, in my view, be rejected.
The decision of the Quebec Court of Appeal in the
case Société Asbestos Ltée is merely an authority
for the proposition that an injunction may issue
against the Crown in right of a province when this
is necessary in order to avoid that effect be given
by the authorities of that province to unconstitu
tional legislation. This proposition has no applica
tion here.
In so far as the various provisions of the Federal
Court Act are concerned, they do not, in my view,
have the effect of abridging the traditional
immunity of the Crown from injunctive relief. If
Parliament had wanted to modify or repeal such a
well-established principle, much clearer language
would have been used.
I am therefore of opinion that Mr. Justice Mar-
ceau was right in dismissing the appellants'
application in so far as it was directed against the
Crown.
I also think that he was right in refusing to issue
an injunction against the two respondent Minis
ters. Contrary to what was argued by counsel for
the appellants, the Federal Court Act did not, in
my view, repeal the traditional rule, clearly stated
in the decision of the Supreme Court of Canada in
The Minister of Finance of British Columbia v.
The King [1935] S.C.R. 278, that a mandatory
order cannot be issued against a Minister of the
Crown when he is simply acting as a servant of the
Crown rather than as an agent of the legislature
for the performance of a specific duty imposed on
him by a statute for the benefit of some designated
third person. Contrary to another argument put
forward on behalf of the appellants, I am also of
the view that the duties invoked by the appellants
as a basis for their application, assuming them to
exist, are duties that the respondent Ministers
would have in their capacity as Ministers and
servants of the Crown; those duties are not specific
duties imposed by statute.
For those reasons, I would dismiss the appeal
with costs.
* * *
HEALD J. concurred.
* * *
LALANDE D.J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.