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The Cana La Ian Ba Evue Du Bar Canadien Evie E THE CANA IAN BA EVIE LA EVUE DU BAR E CANADIEN VOL . XL11 MARCH .1964 MARS No . 1 INJUNCTIONS AGAINST CROWN FFICERS B. L. STRAYER* Saskatoon L Introduction . The scope of the injunction as a remedy against government officers has never been adequately defined in Anglo-Canadian law. Legal writers have given the subject only cursory treatment, and judicial opinion apparently has not yet crystallized . Nevertheless, the in- junction deserves special attention as a method of restraining un- authorized governmental activity. The injunction differs from the prerogative writs in that its origins are in private law : both in form and substance it is a remedy sought on behalf of a private citizen. The injunction differs from the. private equitable remedy now so significant in defining citizen-government relationships-the de- claratory judgment or order : while the latter is non-cOercive and at best advisory, the injunction is a specific order from the court to a member of the executive branch demanding specific compli- ance. The injunction also differs from an action for damages : its usual purpose is to prevent government action rather than to pro- vide compensation after the event. The emphasis will be put on the use of injunctions . against Crown officers in Canada because the Canadian situation is more obscure. As a result of recent legislation in England,' it is now *B. L. Strayer, of the College of Law, University of Saskatchewan, Sas- katoon. 1 Crown Proceedings Act, 1947, 10 & 11 Geo. 6, c. 44, s. 21 . THE CANADIAN BAR REVIEW [VOL. XLII almost impossible to obtain such injunctions there.' In the United States, however, the injunction has long been recognized as a proper device for controlling unauthorized government activity, though the precise limits of the remedy are perhaps not yet finally settled.' In Canada there may still be found judicial opinion in some courts that an injunction can never be given against a Crown officer, and contemporaneous decisions of other courts where it seems to be assumed, without expressly dealing with the question, that such injunctions are unobjectionable. Canadian law on this subject will therefore bear particular examination to determine what principles are recognizable, and to see what developments might be beneficial. Comparison with American and English law may be instructive, but there also may be sound reasons why Canada should not follow either example in toto. While Canada shares with the United States the common experience of a federal system, with necessary constitutional lim- itations on the executive at each level of government, the existence of the parliamentary system in the former may indicate somewhat different conceptual and practical problems. The preamble to the British North America Act, 1867,4 recited the desire of the Canad- ian provinces to be federally united "with a Constitution similar in Principle to that of the United Kingdom . .". In spite of Dicey's jibe that "if preambles were intended to express the truth, for the word `Kingdom' ought to have been substituted `States' . .",F the British conventions of responsible parliamentary government ex- pressed and implied in the Canadian constitution are as significant a feature as is federalism.' This raises the question as to whether a more restricted view of judicial control over the executive might be warranted than is the case in the United States. Nor do English developments necessarily point the way for Canada. The legislative and administrative hazards of federalism do not beset the government of that country. Its courts have noted 2 Underhill v. Ministry ofFood, [1950] 1 All E.R. 591 (Ch .D .) ; Merricks v. Heathcoat-Amory, [1955] Ch. 567. 3 See Block, Suits Against Government Officers and the Sovereign Immunity Doctrine (1946), 59 Harv . L. Rev . 1060 ; Davis, Sovereign Im- munity in Suits Against Officers for Relief other than Damages (1955), 40 Cornell L.Q. 3 ; Developments in the Law-Remedies Against the United States and its Officials (1957), 70 Harv. L. Rev. 827, at pp. 850-864 . ° 30 & 31 Vict ., c. 3. Dicey, Federal Government (1885), 1 L.Q. Rev. 80, at p. 93. e See e.g . Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920), 28 C.L.R. 129, at pp. 146-148, where Isaac' J., remarked on the dangers of applying American precedents to a constitution embracing both federalism and responsible government. 1964] Injunctions Against Crown Officers 3 the irrelevancy of decisions predicated on a federal division of powers .7 II. The Position at Common Law. A. Sources of the Relevant Canadian Law. The law of England was received in all Canadian provinces except Quebec, either through settlement or statutory adoption.$ While the Quebec Act, 1774,9 generally preserved for the inhab- itants of Quebec their laws with respect to property and civil rights, so that the civil law rather than common law prevails in private matters, that province has adopted the injunction in its Code of Civil Procedure."' The Code has almost excluded the injunction as a remedy against provincial government officers" but insofar as the injunction has vitality in Quebec the common law should provide the principles and precedents in application. 12 The law in each. province as between citizen and provincial officer thus may be seen as directly derived from English principles. The law applicable as between citizen and federal officer is sim ilarly derived. At the time of union, section 129 of the British North America Act, 1867,13 preserved the common and statutory law then in force subject to alteration or repeal by the Dominion or the provinces according to their newly defined jurisdiction. There might be said to be a federal common law applicable to injunctions against federal officers if this is really within federal jurisdiction. It is no doubt in part a matter for federal law, to the extent that it affects the operation of the Government of Canada and the pre- rogatives of Her Majesty in right of Canada. It also has a pro- vincial aspect, to the extent that such injunctions protect the prop- erty and civil rights of citizens.14 However, it is not important at r E.g., Harper v. Home Secretary, [1955] Ch. 238, at p. 253 . 8 See Scott, The Canadian Constitution Historically Explained (1918), pp. 20-22 ; Clement, The Law of the Canadian Constitution (3rd ed., 1916), pp. 271-297. 1 14 Geo. 3, c. 83, s. 8. 10 Que. Code of Civil Procedure, arts . 957-972a . 11 Que. Code of Civil Procedure, art. 87a. 12 See Berthiaume v. Du Tremblay, [1955] Que. R.P. 328, at p. 330, where Challies J., noted : "The injunction comes to us from English law and English authorities and jurisprudence are relevant in determining whether or not it lies in this case." Several English authorities were relied on in the judgment. 13 Supra, footnote 4. ' 14 An analogy may be drawn perhaps with liability of the Dominion in tort . The Exchequer Court Act, R.S.C., 1952, c. 98, s . 18 and its predeces- sors allowed actions for damages against the Crown in right of Canada. But as civil liability generally is a provincial matter and varies from prov- ince to province, and as there is thus no federal law of torts, it was held that while the Exchequer Court Act had removed the federal Crown pre- 4 LA REVUE DU BARREAU CANADIEN [VOL. XLII the moment to know which level of government could legislate on the subject, as in fact neither has done so in relation toproceedings against federal officers. Section 29 of the Exchequer Court Act15 which gives that court concurrent jurisdiction "in all cases in which demand is made or relief sought against any officer of the Crown . ." impliedly recognizes a corresponding jurisdiction in provincial courts. Provincial courts in fact exercise such jurisdic- tion." But this does not affect the substantive law with respect to federal officers. It must therefore be assumed that, just as in the case of provincial officers, such substantive law is to be found in the general principles of the common law. B. General Principles and Their Possible Rationale. At the outset it must be observed that the main objection to granting injunctions against Crown officers has been based on the immunity from suit of the Crown itself. In my opinion, what- ever validity this objection ever had has now disappeared. This is not to say that such injunctions should be granted indiscriminately. It will be argued instead that there are other criteria-based on the recognized division of functions of the various arms of govern- ment-which are more appropriate for consideration by the courts when deciding whether to enjoin Crown officers. When the jurisdiction and the necessary grounds are otherwise established, the courts should (subject to their discretionary powers) be pre- pared to grant such injunctions except where to do so would be to interfere with matters which are the sole concern of the legislature. In other words, Crown officers are not per se immune from judicial supervision; but in some cases the courts may have no right to review particular decisions taken by such officers. English writers express doubt that the injunction has ever been considered a proper remedy against an officer of their central gov- -ernment.11 The traditional judicial attitude toward issuing com- rogative of immunity to this extent, the law determining and measuring liability in specific instances would be that of the province where the tort or delict was committed. H.M. the King v. Desrosiers (1909), 41 S.C.R . 71, at p. 78. See also Nadeau, 8 Trait6 de Droit Civil du Quebec (1949), pp . 57-62. Actions against the Dominion are now permitted by the Crown Liability Act, S.C., 1953, c.
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