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 injunction deserves special attention as a method of restraining unauthorized 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 declaratory 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 compliance. The injunction also differs from an action for damages : its usual purpose is to prevent government action rather than to provide 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 limitations 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 expressed 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 prerogatives of Her Majesty in right of Canada. It also has a provincial aspect, to the extent that such injunctions protect the property 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 predecessors allowed actions for damages against the Crown in right of Canada. But as civil liability generally is a provincial matter and varies from province 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 jurisdiction." 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, whatever 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 government-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 prepared 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. 30. is Ibid. is See, e.g. Chan v. McFarlane (1962), 31 D.L.R . (2d) 551 (Ont.) ; Lafieur v. Guay & M.N.R. (1962), 31 D.L.R. (2d) 575 (Que . S.C.) ; Vantel Broadcasting Co. Ltd. v. Canada Labour Relations Board et al (1962), 40 W.W.R. 95 (B.C.C.A.). It would appear from the Lafleur and Vantel cases that the respective provincial courts considered this to be within their inherent powers, not deriving from some implied grant such as in section 29 of the Exchequer Court Act. 17 See De Smith, Judicial Review of Administrative Action (1959), pp.

1964] Injunctions Against Crown Officers 5

mands to the Crown may- be seen in a leading mandamus case, Queen v. Lords Commissioners of the Treasury," which has been cited frequently in Canadian injunction decisions. The County of Lancaster sought mandamus against the Lords of the Treasury to require them to pay certain accounts, submitted by the county, representing costs incurred by the county in criminal prosecutions . The members of the court (Cockburn C.J., Blackburn, Mellor and Lush JJ.) were unsympathetic to the action taken by the Treasury, but they were unanimous in refusing mandamus . The opinion of Chief Justice Cockburn has since been accorded great significance . In referring to the contended jurisdiction of the court to ' grant mandamus he stated I take it, with reference to that jurisdiction, we must start with this un- questionable principle, that when a duty has to be performed (if I may use that expression) by the Crown, this court cannot claim even in appearance to have any power to command the Crown; the thing is out of the question. Over the sovereign we can have no power. In like manner where the parties are acting as servants of the Crown, and are amenable to the Crown, whose servants they are, they are not amenable to us in the exercise of our prerogative jurisdiction .i' While the Chief Justice particularly noted that the alleged "duty" involved the payment out of public funds, the principle enunciated would appear to go beyond that of mere non-interference with the treasury. In refusing mandamus, the decision suggested that a Crown officer was never answerable to a court. This was Crown immunity restated in its broadest form. The royal cloak of immunity, it seemed, was large enough to cover every Crown servant. Such a powerful stream of judicial opinion was bound to over- flow the narrow channel of mandamus . Only eight years after the Lords Commissioners case, the British Columbia Supreme Court in Barnard v. Walkem2° cited it in refusing an injunction sought against the Attorney General of that province in order to prevent him from sitting as a member of the Legislative Assembly. In Attorney Generalfor Ontario v. Toronto Junction Recreation Club" the Lords Commissioners case was again relied upon as raising an absolute bar to the grant of an interlocutory injunction against a provincial Attorney General. The injunction was sought to restrain that officer from advising the Lieutenant Governor in Council to cancel defendant's corporate charter pending trial. Mr, 338-339 ; Griffith and Street, Principles of Administrative Law (2nd ed ., 1957), p. 240 ; Street, Governmental Liability (1953), p. 140 . 1 8 (1872), L.R. 7 Q.B . 387. 19 Ibid., at p. 394. . 20 (1880) 1 B.C.R. (pt . 1) 120, at p. 139. 21 (1904), 8 O.L.R. 440.

6 THE CANADIAN BAR REVIEW [VOL . XLII Justice Anglin emphasized the complete lack of jurisdiction in the court . . . it is not therefore surprising that the research of the learned counsel for the defendants has unearthed no instance of any such anomalous order as that which he now asks, by which His Majesty, through the instrumentality of this Court, would restrain himself in the exercise of functions of his executive government .22 Other cases since have similarly denied the existence of any such jurisdiction because of this supposedly obvious principle.23 This concept of the complete immunity of the Crown and its officers to the processes of the courts rested on historical bases which are not relevant in the solution ofmodern problems. Whether this immunity derives from the questionable logic that the Queen may not be commanded by her own creature, the court,24 or from the identification of the sovereign in her corporate capacity with her natural personage2l is no longer important, when one is attempting to delineate the proper relationship between the executive and the judiciary. Neither reason for the immunity has much to command it now when it may easily be recognized that "the Crown" in this context is really the state and that there is nothing inherently illogical in the state functioning through various organs each having some measure of control over, and dependence on, the other. The cases which have been discussed so far, in simply relying on the dogma of immunity, are equally unhelpful. First, they beg the question as to whether the officer in question was an officer of the Crown, or whether an order against him would be an order against the Crown itself. Secondly, they give us no rational basis for the doctrine of Crown immunity, and thus no indicia as to where it should and should not apply. Activities possibly attribut- able to the Crown today exceed the scope of anything imagined

22 Ibid., at p. 444. 23 See e.g. lit re Carey, [1920] 3 W.W.R. 329 (B.C.) where the Lords Commissioners case was applied in a mandamus action against a federal customs collector . The inability of the court to command the Crown, and the answerability of the officer to the Crown alone were stressed ; Montreal and European Short Line Ity. Co. v. Stewart (1887), 20 N.S .L.R . 115, where an injunction was refused because the Crown's rights would be affected though the defendant was not a Crown officer ; and Amalgamated Builders' Council v. McGregor (1929), 36 O.W.N. 344, which referred to the Lords Commissioners case as an authority for refusing an injunction against Crown officers, though broader reasons were also stated to be discussed infra. 24 See e.g. Morgan, Introductory Chapter in Robinson, Public Auth- orities and Legal Liability (1925), pp. xvni-xix . 2s See e.g. Holdsworth, The History of Remedies Against the Crown (1922), 38 L.Q. Rev . 280, at pp. 293-294 .

1964] Injunctions Against Crown Officers 7 when these principles were originally stated. .The courts'today cannot blindly adhere to a rule of absolute Crown immunity if, they are to cope with the problems raised by hew and multifarious' Crown activities." A few Canadian decisions in the last fifty.years have perceived the real significance of the immunity principle. The. simple explanation given is that, in the main, the conduct' of the executive is subject to the direct control of Parliament'and: not to the. courts. The propriety, of executive action or inaction -.raises, : questions suitable for political, not judicial, determination. Public, , not private, rights are involved here. Such an explanation represents, in a sense, the rejection of any mysterious immunity surrounding "the Crown" and a substitution of a rational .principle consistent with modern parliamentary. forms of government. Some of the cases referred to involve other remedies; but - the ptinciple itself would seem to be equally applicable to injunctions. In Lake Champlain and St. Lawrence Ship -Canal Co. v.: IL M. the King," two judges of the Supreme Court of Canada relied in part on this principle in their concurring opinions. The plaintiff company had brought an action against the, ,federal government for damages suffered by the company through .the,.failure of the Governor in Council to approve its plans for construction of a canal. An Act of Parliament incorporating the company had authorized the construction subject to cabinet .approvah of the plans. Of the three majority judges, Mr. Justice Idington thought :there was no duty cast on the cabinet, the breach of., which could give rise to an action in tort or contract. Mr. Justice,Duff held that, the, cabinet's refusal to act could not be reviewed; by the courts. The power to decide was reposed in the executive responsible to Parlia- ment, "and there being such remedy for grievances of persons al=. leging non-execution of powers by the executive as the, existence of this responsibility entails, . . ." ~~ one could not infer any legal obligation to any, individual to exercise the power. Mr. Justice Anglin held that, even assuming a "duty" to consider and to approve plans which conformed to certain government regulations, it was a "duty" for which the Governor in Council' was only re-

26 As early as 1887 the Privy Council suggested. that Crown ïtnmunity had to be modified in the colonies where colonial governments had necessarily become engaged in more commercial activity than had the government in England. Farnell v. Bowman (1887), 12 App. . Cas. 643, at p. 649. In 1922 H61dsworth, op. cit_ ibid., at pp. 295-296 thought such modifiba- tion was overdue in England because of the extension of governmental activity there. 27 (1916), 54 S.C.R. 461 . 28 Ibid., at'pp. 475-476.

H LA REVUE DU BARREAU CANADIEN [VOL . XLII sponsible to Parliament. He stated: "It seems to me to be contrary to our conception of responsible government that the action of the executive department in such a matter as this should be subject directly or indirectly to the control of the courts." s° The principle was best expressed in ratio by another distinguished jurist, Mr. Justice Riddell, in Orpen v. Attorney General for Ontario." A petition of right had been submitted to the Lieuten- ant Governor to permit plaintiffs to commence an action for the purpose of ascertaining the validity of certain taxes imposed on them. On the advice of the Attorney General the petition was rejected and plaintiffs then commenced action against him for an order declaring that he was under a constitutional duty to recom- mend issuance of the fiat. The "duty" was alleged to be based on various customs and conventions. Mr. Justice Riddell dismissed the action, stating in part : On principle, and leaving to one side all archaic notions concerning the royal prerogative and the divinity which was supposed to surround royal servants, it seems to me plain that in our system of responsible government the duty of the advisers of His Honour, who are the real rulers of the province, is to exercise their best judgment in all matters of State; that, in the exercise of that duty, they are not subject in any wise to the supervision or interference of the Courts or of any other power except the representatives of the people in the Legislative As- sembly . They are responsible to these alone, and not to the courts.31 While the Lake Champlain and Orpen cases might be construed narrowly as involving internal cabinet decisions clearly beyond the scope of judicial review, the principle enunciated therein is apparently of broader application. Amalgamated Builders' Council v. McGregor" involved an attempt to restrain action of a federal executive officer, the registrar under the Combines Investigation Act, 33 in a proposed investigation of plaintiff's activities. On an application by plaintiff for an interlocutory injunction, Mr. Justice Raney took the view that it had misconceived its remedy. It is clear that the action of the defendants which the plaintiff associa- tion seeks to restrain is pursuant to a deliberate policy of the Minister of Labour. But the policy and the official acts of the Minister are, not only the policy and acts of his department, but are the policy and acts of the Government of Canada, which is merely an executive committee of Parliament; and, so long as the Government enjoys the confidence

29 Ibid., at p. 479. 3° 56 O.L.R. 327, [1925] 2 D.L.R. 366 ; affd. 56 O.L.R. 530, [1925] 3 D.L.R. 301 ; foll'd in Chan v. McFarlane, [19611 O.R. 745, 29 D.L.R. (2d) 434. 31 Ibid., at pp. 337 (O.L.R.), 375 (D.L.R.). 32 Supra, footnote 23. 33 R.S.C., 1927, c. 26.

1964] Injunctions Against Crown Officers 9

of Parliament, the acts and policy of the government, are the acts and policy of Parliament . In that view, an injunction restraining the Min- ister of Labour from executing his office would be an injunction restraining Parliament. 34 These opinions provide a rational explanation for the "immunity" of Crown officers from certain types of.judicial interference. This "immunity" is based, not on an "immunity" of officers from judicial process, but rather on an absence of substantive rights in the citizen capable of enforcement by the court. So long as Crown officers are engaged in the execution of parliamentary policy, the judiciary cannot interfere. Parliament is supreme in this area. The judiciary can intercede only if the executive goes outside this area by exceeding its jurisdiction. This general principle still does not answer automatically the multitude of questions arising out of any specific executive action. What is the policy of Parliament with respect to the particular situation in issue? Which acts must be treated as in fulfillment of that policy, and which cannot be so treated? Did Parliament have authority to adopt such a policy or to implement it in this, way, and if not, can the court intervene? While particular applications of the principle may not be easy, the principle itself is far more useful than a canon of Crown immunity based on the "archaic notions" referred to by Mr. Justice Riddell in the Orpen case. It might be thought that the principle ofexecutive responsibility and parliamentary supremacy is so evident that it need not be expressed or justified. Nevertheless, a survey of a number of Canad ian and English cases will show how the judicial navigators have overlooked this natural harbour, and how the waters have been badly muddied in the search for a suitable anchorage. The results of the cases are generally consistent with the suggested principle, but their express reasons are not. It might also be noted in passing that this principle is equally applicable to certain remedies other than the injunction, particularly to mandamus. But the use of the injunction does not corres- pond exactly to that of the prerogative writs, either individually or collectively . While a mandatory injunction is similar in effect to mandamus, a court in the exercise of its equitable discretion might be reluctant to issue a mandatory injunction against a Crown officer. This would be particularly true where the court felt help- less to supervise compliance with the order requested. It has been suggested in the United States that a prohibitory'injunction is per-

3A Supra, footnote 23, at p. 345.

lO THE CANADIAN BAR REVIEW [VOL. XLII missible because it prevents unauthorized acts, whereas a mandatory injunction is not permissible because it would interfere with the government by requiring the performance of authorized acts." Also, mandamus is a method of enforcing "public" duties ; the injunction is a method of protecting private rights from improper interference, rights which could be the foundation of a private right of action." Again, the injunction is dissimilar to certiorari and prohibition because they are confined to reviewing or preventing action by judicial or quasijudicial officers and agencies ; the injunction is not similarly restricted ." It will therefore be useful to examine the special implications for the injunction of the principle of responsible government and parliamentary supremacy. C. Criteria Applied in the Cases. The courts have used different approaches at different times in deciding whether or not a Crown officer should be subject to their direction. Some of these approaches are unobjectionable, while others are demonstrably unsound. I shall attempt to describe some of the recurring themes, to see which have merit, and to suggest some explanation for the overall results of the cases with a view to formulating more useful criteria for the future. 1 . Status of the defendant . This approach has tended to be rather formalistic, with the cases turning on whether the defendant could or could not be given some magic label. It is reflected in three different tests used by the courts. (a) Capacity in which the officer is sued. The English courts have 15 Developments in the Law-Remedies Against the United States and its Officials (1957), 70 Harv. L. Rev. 827, at p. 863. But there would be "interference" only where a court sought to compel the exercise of a discretionary power in a particular way. Compelling performance of legally required (i.e. "ministerial") acts is surely not "interference" . °° See De Smith, op. cit., footnote 17, pp. 331, 433. 3' See De Smith, op. cit., !bid., pp. 274-290 ; Yardley, The Grounds for Certiorari and Prohibition (1959), 37 Can. Bar Rev. 294 (a discussion of the English and Canadian authorities concerning these remedies). In some cases the injunction coupled with a declaration could probably be an alternative remedy to certiorari or prohibition . See Barnard v. National Dock Labour Board, [1953] 2 Q.B. 18 ; Charter Airways Ltd. v. A.G. for Canada (1955), 17 W.W.R. (N.S.) 129, (1956), 1 D.L.R . (2d) 110 (Alta. S.C.) ; De Smith, Statutory Tribunals and the Action for a Declaration (1953), 16 Mod. L. Rev . 506. Contra : Hollinger Bus Lines Ltd. v. Ontario Labour Relations Board, [1951] O.R. 562, [1951] 4 D.L.R . 47, aff'd [1952] O.R. 366,1195213 D.L.R. 62. The tribunal whose order is to be reviewed by an action for a declaration must be a suable entity, though this is not necessary where certiorari is sought. See Hollinger case, and Retail Whole- sale and Department Store Union, Local 580 v. Baldwin et al, [1953] 4 D.L .R. 735 (B.C.) .

1964] Injunctions Against Crown Officers 11

occasionally put much emphasis on the question of whether the officer to be restrained was being sued in his official, or in his private, capacity. It has been held that an "official", defendant cannot be restrained, but that the "non-official" defendant can be- even though he is one and the same person. The Privy Council decision in Nireaha Tamaki v. Baker" must be noted in this regard, not because it expressly adopted the personal-official dichotomy but because of the later interpretation put on it. The case involved an action for a declaration and an injunction to restrain the New Zealand Commissioner for Crown Lands from advertising or selling certain lands to which the appellant claimed a possessory title. By the Treaty of Waitangi, 1840, the Maoris had ceded to Her Majesty the sovereignty and ownership over their lands, and were guaranteed exclusive possession in return. Subsequent legislation provided that where Maori possessory title had been ceded to the Crown, the land could be advertised and sold by the procedures therein specified. Appellant claimed that possession of certain lands which respondent Com- missioner had advertised had not been ceded to the Crown and that he and other Maoris were possessory owners of it. The respondent in the New Zealand courts argued inter alga that this claim involved the Crown's interest in the land which could not be attacked in this sort of proceeding . He also contended that the court had no power to review his actions by inquiring whether, as a matter of fact, possessory title had been ceded to the Crown. These points were ordered set down for argument before trial and it was from a decision in favour of the respondent that this appeal was brought to the Privy Council: The Privy Council took the view, as to the first objection, that no question of Crown title arose unless the possessory right had been ceded. Thus the second objection alone had to be considered, namely was it proper to bring such a proceeding against a Crown officer to determine these facts? Lord Davey, delivering the opinion of the Board, referred to the dedision below and stated : Their Lordships think that the learned judges have misapprehended the true object and scope of the action, and that the fallacy of their judgment is to treat the respondent as if he were the Crown, or acting under the authority of the Crown for the purpose of this action . The object of the action is to restrain the respondent from infringing the appellant's rights by selling property on which he alleges an interest in assumed,pursuance of a statutory authority, the conditions of which, it is alleged, have not been complied with.39

38 [19011 A.C. 561. 19 Ibid., at p. 575.

12 LA REVUE DU BARREAU CANADIEN [VOL. XLII The judgment then stated that if the acts of the Commissioner were not in fact within the authority granted by the statute, the appellant was entitled to his remedy. Therefore the trial should proceed to ascertain the facts necessary to establish compliance or non-compliance with the statute. The essence of the Tainaki case would appear to be that an injunction may issue against a Crown officer acting outside the scope of his statutory authority. The issue was not as to the capacity in which he was being sued, but rather as to the capacity in which he had acted in advertising the land. However, in Hutton v. Secretary of State for War" the Chancery Division interpreted this case as turning on the capacity in which the Commissioner was sued. In the Hutton case, the British War Office sought to ex- propriate certain lands belonging to the plaintiff. The statutory requirements for expropriation included the obtaining of a certificate from a special tribunal to the effect that the acquisition of this particular land was necessary. Such a certificate was obtained in a proceeding of which the plaintiff owner had no notice. Relying on it, the War Office took possession of the land. Subsequently, the plaintiff sought a declaration that the certificate was invalid because no hearing had been held. He also sought an interim injunction restraining further expropriation proceedings being taken, and this was the issue in the first reported decision. The action was against the Secretary of State for War in his official capacity, and the Attorney General contended that such an action would not lie. Plaintiff relied in part on the Tamaki case. Mr. Justice Tomlin, in dismissing the application for an injunction on the grounds that it would not he against the Minister in his official capacity, distinguished Tamaki as follows What Lord Davey was really saying was that in a case where an official was sued as an individual for a wrongful act it was no defence to say that the wrongful act was done by him as an officer of the Crown. The argument that an action would lie against a Crown official, as such, when a wrong had been done which purported to be an exercise of a statutory authority, entirely failed . 41 The relevant question for Mr. Justice Tomlin was not whether the 40 (1926), 43 T.L.R. 106. 41 Ibid., at p. 107 emphasis added. That the Hutton decision turned solely on the question of capacity in which the defendant was sued is clearly illustrated by the fact that the plaintiff subsequently sued him in his private capacity, and upon a similar application for an interim injunction the court considered the substantive questions at issue without hesitation . Hutton v. Attorney General, [1927] 1 Ch. 427 . See also Davis, op. cit., footnote 3, at pp. 17-18, where a similar judicial approach in the United States is discussed .

1964] Injunctions Against Crown officers 13

officer was acting within the scope of his authority, but rather how he was described in the statement of claim. It is hard to find this meaning in the Tamaki case, and apparently the Supreme Court of Canada has taken a different view of it. In Rattenbury v. Land Settlement Board42 the plaintiff had commenced an action against the Board, an agency of the British Columbia Government. He sought a declaration that the statute under which it intended to enforce certain taxes was ultra vires the legislature of British Columbia, and an injunction to prevent such imposition . The Board, a body corporate, was in every respect a Crown agency. Its members were appointed by the provincial cabinet; its funds were to be supplied from the Consolidated Rev- enue Fund of the province ; its funds and property were to be the property of the Crown; and money payable to it was to be recover- able as a debt owed to the Crown. It was sued in its "official" capacity. The Board argued initially that it was the "servant and agent of the Crown", that acts done by it were done in that capacity, that it was therefore immune from such proceedings, and further that the Act was valid. These points were set down for argument before trial, and were the subject of the appeal to the Supreme Court. Mr. Justice Newcombe writing the majority judgment (Mignault and Rinfret JJ., concurring) held that such an action would lie. He relied first on the British Columbia Inter- pretation Act" which provided that any body created a corporation by statute should be deemed to have the power to sue and be sued unless otherwise provided. This provision, he said, removed Crown immunity to suit. He also held that, regardless of this provision, the court could interfere to restrain unauthorized actions of a statutory agency whether the want of authority was based on an overstepping of the bounds of the statute or on the invalidity of the statute itself. The Tamaki case was cited as authority for this proposition. On the Hutton interpretation of Tamaki the fact that the Board was sued in its official capacity would automatically exclude the action. Rattenbury, it is submitted, took the correct view of Tamaki -that the court can restrain unauthorized acts of Crown officers and that the capacity in which such officers are sued is irrelevant. Nevertheless, this question of capacity still seems to be a matter of some importance to English courts. In Harper v. Home Secre- tary 44 an injunction was sought against the Home Secretary in his

42 [19291 S.C.R. 52. 43 R.S.B. C., 1924, c. 1, s. 23. 44 Supra, footnote 7.

14 THE CANADIAN BAR REVIEW [VOL . XLII official capacity to prevent him from submitting, for implementa- tion by order in council, a report to Her Majesty in Council on redistribution of parliamentary constituencies . It was alleged that the report did not comply with the statutory authority under which it was given. The case was decided on the basis that the contents of the report were within the completely discretionary powers of the Boundary Commission and of both houses of Parliament which had approved it, and that therefore the plaintiff could not establish any irregularity in the report. The Court of Appeal also dealt in passing with the capacity in which the Home Secretary was sued. Sir Raymond Evershed M.R., giving the court's opinion, pointed out that if the plaintiff's contention was that the whole report was a nullity then the plaintiff should have sued the Home Secretary in his private capacity. He noted, however, that it would be difficult in such a case to say what breach of duty to plaintiff the defendant could commit in his private capacity if his acts were of no official effect." Whatever the effect of this distinction in the English courts, the Canadian courts have not given it much weight. As we have seen, in the Rattenbury case the Supreme Court held that an in junction could be granted against a Crown agency sued in its official capacity (though this is probably obiter because of the view the court had already taken of the effect of incorporation of the Land Settlement Board). In Canadian Pacific Ry. v. Attorney General of Saskatchewan ae the Court of Queen's Bench was asked to grant a declaration that certain mineral tax legislation of the province of Saskaechewan was invalid, and to issue an injunction against the provincial Minister of Natural Resources to prevent forfeiture proceedings being taken for non-payment of the tax. The Crown argued that such relief must be had by petition of right, and that an injunction could not issue against an officer or servant of the Crown. Mr. Justice Thomson, referring inter alga to the Tarnaki case, held that an injunction could issue against the Min- ister. He was in doubt as to whether it would issue against the Minister in his official or in his private capacity but found it unnecessary to decide this as he held the legislation to be valid. This case suggests that the personal-official dichotomy had little significance in determining whether the court had jurisdiction to issue an injunction. 11 Ibid., at p. 254. 's (1951), 1 W.W.R. (N.S.) 193, [1951] 3 D.L.R. 362 (Sask) ; appealed 2 W.W.R. (N.S.) 424, [1951] 4 D.L.R. 21, [1952] 2 S.C.R. 231, but these issues were not dealt with on the appeals.

1964] Injunctions Against Crown Offcers 15

Other Canadian cases have completely ignored the significance of such a distinction. Melbourne v. McQuesten, a case with many aspects, involved an action against the Ontario Minister of High- ways and one of his officers, both sued personally. Plaintiff sought a declaration that an expropriation of her property was outside the relevant statute or was based on an invalid statute, and an injunction to prevent further expropriation proceedings. Upon application being made 47 for an interlocutory injunction pending trial, such injunction was refused because a probable case had not been made out. Subsequently, defendants obtained an order requiring the plaintiff to post security for costs on the grounds that she was a non-resident and also that, as they were being sued personally they would have no ready means of collecting costs from the plaintiff even if they won. If the plaintiff lost, the Crown and not they would be in possession of her property. They would be in no position to deduct their personal costs from the compensation which would ultimately be payable to the plaintiff by the Crown. On appeal48 from the order granting security for costs, the Ontario Court of Appeal rejected this reasoning. Mr. Justice Riddell considered that in reality the action was against the Crown. In this action the defendants are sued because of acts done as servants of the Crown-the Crown it is, which is in fact though not in form attacked, and it is, of course, plain that the Crown will in fact pay any expense to which the defendants may be put.49 While this case leaves some questions unanswered," it represents a refreshingly realistic approach to the -problem by looking behind the form in which the pleadings are drafted. Similarly, in Barnard v. Walkem" the Supreme Court of British Columbia applied the principles of Crown immunity in rejecting a request for an injunction against a Crown officer in his personal capacity. The court in effect treated it as an action against a public officer because of the practical effect an injunction would have on the functioning of the government. Whatever the merits of the decision, it avoids the formalistic, in favour of the realistic, approach. It is questionable whether the capacity in which the defendant is sued now would be considered decisive in Canadian courts. There are good reasons why it should not be. There are difficulties inherent in a rule that a Crown officer can only be restrained in his 47 [1940] O.W.N. 311 ; aff'd [1940] O.W.N. 314. 48 [1942] O.L.R. 102. 49 lbid., at p. 108. so E.g., how, if the action were really against the Crown, could it proceed without petition of right? 51 Supra, footnote 20 and accompanying text .

16 LA REVUE DU BARREAU CANADIEN [VOL. XLII personal capacity, or that he can always be so restrained. As the Master of the Rolls suggested in the Harper case, it would often be difficult to know what breach of duty such officer could commit in his private capacity. A Minister cannot promulgate a regulation in his private capacity. In a case such as Tamaki, the Commissioner of Lands could not advertise and convey Crown lands in his private capacity. Tax enforcement officers would not declare a forfeiture of property for non-payment of taxes in their private capacities. Under this rule, an incorporated Crown agency could never be restrained because it is inconceivable that one could sue a public body corporate in its "private" capacity. There are some cases of course where "personal" acts of an officer could usefully be restrained to protect private rights. An officer entering onto land invalidly expropriated could be re strained as a trespasser. This is so because unauthorized entry is a trespass whether or not the entry has some official significance. The officer need not act officially to commit trespass by entry; he must act officially to affect a citizen's rights by promulgating an invalid regulation. The regulation is without significance unless he purports to act officially. To what extent is a judgment granting an injunction against an officer in his personal capacity res fudicata as against the government? It is questionable whether a judgment against an officer alone in his official capacity would bind the Crown, and it is even more questionable where the judgment is against him in his personal capacity. In some litigation against officers, of course, the Crown would be bound as an added party. In cases involving the constitutional validity of statutes, the Attorney General of the Dominion or of a province (depending on whose legislation is attacked) would normally be brought in as an intervenant pursuant to the various statutes to this effect. The Attorney General of a province, once having intervened, might well apply to be added as a party because of certain procedural advantages. As the representative of the Crown, a judgment against the Attorney General would be binding on the Crown. Similarly, in actions for declaratory judg- ments with which the injunction is most commonly associated, it would be essential where the validity of a statute was questioned to join the Attorney General as a defendant.b2 These procedures are not always available, however, and the b- Canadian Pacific By. v. Attorney General of Saskatchewan, supra, footnote 46, 1 W.W.R. (N.S.) 193, at p. 204, [1951] 3 D.L .R., 362, at p. 370.

1964] Injunctions Against Crown Officers li problem of res judicata might have significance. In the United States, Davis has suggested". that, at least where government counsel defend such actions, the government should be bound on the principle that he who controls an action and has an interest in its outcome should be bound by the results thereof. Perhaps the practical importance of res judicata is exaggerated, because the federal and provincial governments would almost certainly observe the limitations imposed by the court in its injunction. They have generally observed constitutional limitations defined in constitutional reference cases even though these are not binding on anyone. At least it may be said that the grant or denial of a remedy which depends on the terms in which the defendant is described in the statement of claim is reminiscent ofthe forms of actions and other formalistic rules now discredited. The preferable approach, it is suggested, is the realistic one-to see whether the acts to be restrained are those over which the legislature, or the court, should have control. (b) Inherent nature of the office. This test of status seeks to determine whether the officer in question is acting as an "officer of the Crown". If so, the court is powerless to interfere. If not, he is subject to court orders. If this test were merely a shorthand for- mula for determining whether or not the acts are those committed to the executive subject to exclusive parliamentary supervision, it could be quite useful. But it has been applied in an illogical fashion and has distracted attention from the fundamental issues. The dichotomy usually found here is that between "servants of the Crown" and "agents of the legislature" . This dichotomy has distinguished origins, traceable back at least to the argument of Sir George Jessel, then Solicitor General, in the Lords Commis- sioners case. He was there arguing that the Treasury Lords were servants of the Crown and that therefore mandamus would not lie : Where the legislature has constituted the Lords of the Treasury agents to do a particular act, in that case a mandamus might lie against them, as mere individuals designated to do that act ; but in the present case the money is in the hands of the Crown or of the Lords of the Treasury as Ministers of the Crown; in no case can the Crown be sued even by writ of right.64 In that case non interference with the distribution of public money was probably of prime concern to the court and the question of what an "agent of the legislature" might be was not very import- Op. cit., footnote 3, at p. 32. s4 Supra, footnote 18, at pp. 389-390.

18 THE CANADIAN BAR REVIEW (VOL . XLII ant. Nevertheless, Sir George Jessel's concept of "servant of the legislature" was given recognition by Mr. Justice Duff in the Lake Champlain case in 1916 : . . . it is sometimes not easy to ascertain where powers are by statute vested in a minister of the Crown whether the depositary of the powers is thereby constituted the "agent" of the Legislature . . . or whether the powers are vested in the Crown to be exercised through the instrumentality of the minister, in other words, whether or not the Legis- lature has named the donee of the power in his capacity of servant of the Crown.b5 He took the view that under the statute in question there was no duty to exercise the power in either case, so that again this distinction was unimportant. The distinction has been applied by some Canadian courts, however. In Minister of Finance of British Columbia v. H. M. the King" the Supreme Court adopted it in ratio. By the Land Registry Act 57 of British Columbia an Assurance Fund was continued, to be maintained from a percentage of the fees charged under the Act for registration of land titles and other instruments. Anyone deprived of land "in consequence of fraud or misrepresentation in the registration of any other person as owner of such land" could sue the person so taking the land. If the plaintiff could not collect a judgment in damages from such person he was entitled to file a certificate of the court with the Minister of Finance who must "pay the amount of such damages" from the Assurance Fund. Respon- dents had obtained what they asserted to be such a judgment in a prior action and, having failed to collect, sought payment from the Assurance Fund. The Minister of Finance refused to pay. Respon- dents then obtained mandamus against the Minister in the provincial courts. In the Supreme Court the appellant Minister argued that mandamus would not lie against him as an officer of the Crown. He further contended that the judgment in question was not ex- clusively for damages arising from improper registration and therefore did not come within the terms of the Act. The court, in a judgment written by Mr. Justice Davis, rejected the argument that mandamus could not lie. He referred to Sir George Jessel's argument in the Lords Commissioners case and held that the Minister was acting as a servant of the legislature. Admittedly, emphasis was also placed on the fact that this was not an attack on the provincial treasury but instead on a special fund designated for the particular purpose of making payments to certain persons who com- 55 Supra, footnote 27, at pp. 471-472. 55 [19351 S.C.R. 278. 17 R.S.B.C., 1924, c. 127, ss. 216, 218, 228.

1964] Injunctions Against Crown Officers 19

plied with the conditions specified in the Act. But because the Min- ister was authorized to act in these special circumstances, it was deemed that he could be required so to act." This decision has since been applied in prohibitory injunction cases. The logic of this is far from apparent. The mandamus precedent is relevant to the mandatory injunction, because both remedies compel performance of a non-discretionary or "ministerial" act. But it does not follow that because a ministerial act can be compelled, it can also be prohibited. In actions for prohibitory injunctions, the basic issue should be whether the threatened act is lawful or unlawful, not whether it is discretionary or non- discretionary. Nevertheless, in the Canadian Pacific Ry. case Mr. Justice Thomson expressly relied on Minister of Finance when he held that the Minster of Natural Resources, in following the specific steps provided by statute for enforcement of the mineral tax through forfeiture of mineral rights, would be acting as an "agent" of the legislature The said steps are taken under the direct authority of the Legislature and in taking them the minister acts as a mere agent of the Legislature and not as a servant or agent of the crown. . . .69 This finding, plus the principle of the Tamaki case, satisfied him that the Minister could be enjoined from taking forfeiture proceedings. This conclusion enabled the court to reach the constitutional issue which was then determined in favour of the Minister. The Ministér of Finance and Canadian Pacific Ry. cases were applied in Duplain v. Cameron (No. 2),s° where Mr. Justice Brown- ridge of the Saskatchewan Court of Queen's Bench had to determine whether the defendants, members of the provincial Secur- ities Commission, were "officers of the Crown" within the meaning of section 17 of The Proceedings Against the Crown Act." That section, which will be discussed more fully in part III, prohibited the grant of an injunction against any "officer of the Crown". It es See also H.M. the Queen v. Leong Ra Chaf, [1954] S.C.R. 10, where it was held that mandamus could lie to compel an officer of the Immigra- tion Branch of the Department of Citizenship and Immigration to consider an application for admission to Canada. While reference was made to the Lords Commissioners case, and it was held that the officer was not "a servant of the Crown", there was no suggestion that he was a "servant of the legislature". It was held instead that he was ". . . charged with a public duty which runs in favour of the respondent in whom it created a civil right . . ." at p. 15. It is submitted with respect that this is the preferable approach, instead of that which turns on the particular title which may be attached to the official in question. ss Supra, footnote 52, at pp. 209 (W.W.R.), 374 (D.L.R.). so (1960), 33 W.W.R. 38, 29 D.L.R. (2d) 340 (Sask. Q.B.). 61 R.S .S., 1953, c. 79.

20 LA REVUE DU BARREAU CANADIEN [VOL . XLII was held that the Chairman of the Commission, in making an order which had brought plaintiff within the terms of The Secur- ities Act, 1954 62 had acted as an "agent of the legislature". There- fore further action taken pursuant to that order would be taken in the same capacity and could, in a proper case, be prohibitorily enjoined. The judgment applied mandamus criteria in deciding that a prohibitory injunction was available because the defendants were "agents of the legislature", but seemed to ignore the mandamus definition of "agent of the legislature" as applied in the Minister ofFinance and Canadian Pacific Ry. cases. In these cases the powers to be exercised were clearly spelled out in the relevant statute, and their exercise was specifically limited to certain circumstances. The powers of the Securities Commission here in question were almost entirely discretionary. The same section of The Proceedings Against the Crown Act had to be interpreted in Taal et al v. Saskatchewan Medical Care Insurance Commission." An interim injunction was sought to pre vent the Commission from exercising its powers pending a determination as to the validity of The Saskatchewan Medical Care Insurance Act, 1961 .64 Mr. Justice Disbery of the Court of Queen's Bench apparently accepted the validity of the servant of the Crown -servant of the legislature distinction and made reference to, inter alia, the Lords Commissioners case. He found, however, that the Commission was an agent of the Crown because it was subject to considerable control by the Lieutenant-Governor in Council. On the one hand, he distinguished the Minister of Finance and Canad- ian Pacific Ry. cases because the officers involved therein had little or no discretion, and on the other hand he distinguished the Duplain case because there the Commission had a wide area of discretion free from the control of any Minister, This judgment, together with the Duplain judgment, keeps alive the "servant of the legislature" but does not readily assist one in identifying him. Analytically, the concept of "servant of the legislature" has little to commend it. Government officers are surely servants of the executive branch, even though the executive is ultimately responsible to the legislature in a very special sense. The legislature itself has no executive power" in spite of the great influence it has over those who do. The legislature's only servants, persons over

U S. S., 1954, c. 89. 63 (1962), 40 W.W.R . 8 (Sask. Q.B.). 64 S. S., 1961 (2nd. sess .), c. 1 . 66 See Dicey, Law of the Constitution (10th ed., 1959), pp . 406-410, But cf. Humphrey's Executor v. U.S. (1935), 295 U.S. 602 for a qualification of this principle in the United States.

1964] Injunctions Against Crown Officers 21 whom it has direct authority, would be those employed to staff the legislature itself.ss Even if it could be said that the legislature through its statutory commands becomes master, the legislature does not of itself make laws. It is the Queen in Parliament or in Legislative Assembly who makes laws : every enactment of Parlia- ment, for example, begins "Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows . . .". Parliament advises : the Queen commands according to that advice. Therefore, one cannot avoid the question of Crown immunity by saying that the act to be restrained is only the command of the legislature. Such a command is, strictly speak- ing, the command of the Crown. Only because of ministerial responsibility to the legislature could it be said that the executive is in any real sense the servant of the legislature. Put on this explanation, the proposition that the court can restrain servants of the legislature proves too much. It would mean that in those areas where Parliament has not pre- scribed executive action by statute but has left it subject to control by Parliament alone-the very area where the courts should not interfere-the courts would have, full power of review because here the officers would be "servants of the legislature". It is therefore suggested that a test of amenability to suit de- pendent on defining the officer as a "servant of the Crown" or as a "servant of the legislature" has shortcomings both theoretical and practical. 67 The better test, as I have earlier proposed, should 16 See Kimmitt v. HM. the Queen (1896), 5 Ex. C.R . 130 where the plaintiff sought to sue the Crown for his fees with respect to services performed for the House of Commons Committee on Privileges and Elec- tions. The Committee had engaged him at a fixed daily rate . It was held that such a contract could not be enforced against the Crown. The Crown was not a party to it and acquired no rights under it, nor could the Crown have interfered in any way with the execution of the contract. It would appear that a person such as Kimmitt could be described as a "servant of the legislature" . 67 The problem of defining "servant" or "officer" of the Crown has appeared in a converse situation under the Exchequer Court Act, supra, footnote 14, and its predecessors. Section 18(1) (c) allowed actions against the Crown federal for injuries "resulting from the negligence of any officer or servant of the Crown . . .". It was held that officers exercising discretionary powers, such as Ministers, were not "officers of the Crown" and therefore the Crown could not be sued. In essence these cases held that the exercise of such powers should not be reviewable by the court. See e.g. McHugh v. H.M. the Queen (1900), 6 Ex. C.R. 374; Harris v. HM.1 the King (1904), 9 Ex. C.R. 206; Mavor v. H.M. the King (1919), 19 Ex. C.R. 304 ; McArthur v. HM. the King, [1943] Ex. C.R. 77 Similarly, section 29(c) of the Act gives the Exchequer Court concurrent jurisdiction over "cases in which demand is made or relief sought against any officer of the Crown. . . ." In Belleau v. Minister of National Health & Welfare, [19481 Ex. C.R. 288 it was held that the court had no jurisdiction to grant an injunction against the Minister in the exercise of his discretionary func-

22 THE CANADIAN BAR REVIEW [VOL. XLII concern itself with whether the acts to be restrained are those for which the executive is responsible to Parliament alone. Parliament may divest itself of exclusive control by defining the duties of the officer so that a particular duty to a particular individual may be ascertained. Here the courts may intervene to enforce that duty. Intervention could take the form of mandamus, where there is a failure to exercise the powers in a situation where such exercise is required by the statute. Or it could take the form of an injunction to prevent a purported exercise, in a situation where exercise is not permitted by the statute. Here the legislature has delegated part of its power of control. On the other hand, an officer who is granted powers which are completely discretionary exercises them subject only to the will of Parliament. A quick survey of a few cases will indicate that this distinction is supported by the results in some and expressly in others. In the Lords Commissioners case the court was obviously reluctant to grant mandamus to order a particular expenditure from the treasury. This reluctance surely reflects the traditional absolute parliamentary control over the raising and expenditure of public funds. No statute there involved gave the relator a claim to specific funds, because ultimate discretion had been left with the Treasury Lords subject only to Parliament. In the Lake Champlain case, while no single reason was given by the concurring judges, the general conclusion reached appeared to be that whatever the cabinet did in approving, disapproving, or refusing to consider the plan submitted, this was a matter within its discretion. The Act of Parlia- ment had not so limited that discretion as to give the company a right, for the breach of which it could claim damages. Such responsibility as the cabinet had was to Parliament. The courts have relied on this test expressly in such cases as East Suffolk Rivers Catchment Board v. Kent." A statutory agency was sued for alleged lack of due care in exercising its powers of repairing sea walls. The plaintiff claimed that he had suffered damage because the Board was dilatory in making repairs which could have been made much more quickly. The House of Lords held, in the words of Lord Romer, that: . . . where a statutory authority is entrusted with a mere power it can- tions because he was not an "officer of the Crown". This illustrates that the term "officer of the Crown" has no inherent significance because here it is given a meaning entirely opposite to that expressed in Sir George Jessel's argument in the Lords Commissioners case and followed since by some courts. In both uses, the term appears only as an unhappy explanation for the courts' proper reluctance to review discretionary decisions . 68 [19411 A.C. 74.

1964] Injunctions Against Crown Officers 23 not be made liable for any damage sustained by a member of the public by reason of a failure to exercise that powers° If the Board had a discretion to do nothing, it had an equal discretion to do the work as slowly as it wished. Presumably the same reasoning, would apply, for example, to prevent an injunction to restrain the Board from doing its work in this manner. Again, in Belleau v. Minister of National Health and Welfare 7 ° the court expressly declined to interfere with the exercise of a discretionary power. The plaintiff asked, inter alia, for an injunction restraining the Minister and his Chief of the Narcotics Branch from alleged interference in the medical care rendered plaintiff by his physicians . Though the officers were sued both in their official and in their personal capacities Mr. Justice Angers refused the injunction, in part because the Minister's control over the use of certain drugs was, by statute, completely discretionary. The converse situation, where powers granted are non-discretionary, may also be seen in the cases. For example, in the Min- ister ofFinance case the real substance of the decision would seem to be that the Minister had enforceable duties without any discretion, which duties arose automatically as soon as the specified prerequisites were met. Whether he had performed his duties was not a matter which the legislature alone could judge : the court could also judge by reference to the specific rules laid down by the legislature in granting the power to the minister. To this extent the legislature had in effect delegated the power of control. Where an official duty or the conditions of exercise of official power are spelled out, a private right may in some cases exist. But where discretionary powers are given, the foregoing and many other cases 11 indicate that the court cannot substitute its decision for that of the officer in question. This rule may be explained readily in terms of the principle of responsible government. Form- ulae such as "servant of the Crown" and "servant of the legislature" should be avoided as tests for defining the scope of judicial review because they distract attention from the fundamental principle and may lead to unjustified conclusions. (c) Status as based on authorization. This test would deny a defendant the status of an officer of the Crown, and its attendant immunities, if he is acting or threatens to act in a manner not authorized by law. The lack of authority may arise either through the ss Ibid., at p. 102. 70 Supra, footnote 67. 71 E.g. H.M. the King v. Beech, [1930] Ex C.R. 133 ; National Trust Co . v. Christian Community, [1939] 3 W.W.R. 294, [1939] 4 D.L.R. 770 (B.C.) ; and the authorities cited in footnote 67, supra.

24 LA REVUE DU BARREAU CANADIEN [VOL. XLII exercise of powers not granted, or the exercise of powers granted under an invalid statute. This test, while formal in appearance, has a sound and realistic basis directly related to the concepts of responsible government previously discussed. In the United States, injunctions have long been recognized as a proper remedy in such cases.72 Perhaps the leading statement there of the status test may be found in Ex parte Young.73 A Min- nesota statute was held unconstitutional by the Supreme Court as being in conflict with the Constitution of the United States. The court also held that the state Attorney General could be enjoined from enforcing the statute, in spite of his objection that this would amount to a remedy against the state itself. Mr. Justice Peckham, for the court, said that : . . . if the act which the state attorney general seeks to enforce be a violation of the Federal Constitution, the officer, in proceeding under such enactment, comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.74 It was therefore held that the injunction could be issued against the defendant regardless of the position which he occupied. While this seems to be a rather tortured explanation for the simple proposition that unauthorized acts of officers can be restrained, the result is unobjectionable. It has similarly been held in the United States that federal officers can be enjoined where they act without authority." There would appear to be certain limitations on granting the remedy where an injunction would interfere with the management or disposition of government lands" or would in effect be a means of collecting a debt from the government .77 In Canada the use of the injunction in such cases commenced at a later date. The propriety of the remedy under these circumstances would now appear to be established, at least in those jurisdictions where no statutory limitations have been placed on the injunction. These limitations will be discussed in part III. The leading Commonwealth decision on the point (outside Australia, where special constitutional and legislative provisions

72 See Davis, op. cit., footnote 3, passim. 73 (1908), 209 U.S. 123. 74 Ibid., at pp. 159-160. 7s E.g. Philadelphia Co. v. Stimson (1912), 223 U.S. 605 ; Land v. Dollar (1947), 330 U .S. 731 ; Joint Anti-Fascist Refugee Committee v. McGrath (1951), 341 U.S. 123. 76 Morrison v. Work (1924), 266 U.S. 481, at pp. 485-486. 77 Mine Safety Appliances Co. v. Forrestal (1945), 326 U.S . 371 .

1964] Injunctions Against Crown Officers 25

prevail)" is the Tamaki case. There the Privy Council held that an injunction could be issued against an officer of the Crown if he threatened to do acts purportedly but not in fact authorized by an Act of Parliament . With reference to the contrary view of the New Zealand Court of Appeal, it was said : . . . the fallacy of their judgment is to treat the respondent as if he were the Crown, or acting under the authority of the Crown for the purpose of this action.71 If the officer's acts were not within the terms of the statute, they could be restrained without the Crown being involved in any way. In so -far as the officer acted outside the statute, he did not act as an officer of the Crown." The Tamaki case was cited by the Supreme Court of Canada in support of the decision in Rattenbury which held, -inter alia, that an injunction could issue to restrain acts authorized by an invalid statute. This was a logical application of the Tamaki rule in a federal system with legislatures of constitutionally limited powers. There is as much merit in restraining an officer who relies on the statute of a legislature which has misconceived its powers, as in restraining an officer who has misconceived the scope of his own statutory powers. The authority of Rattenbury as a precedent is lessened because the court relied specifically on the fact that the legislature had by statute permitted actions to be taken against the Board. Once this conclusion was reached, all further questions of Crown immunity became irrelevant" and the application of Tamaki was really obiter. Tamaki and Rattenbury were followed by. Mr. Justice Thomson in the Canadian Pacific Ry. case, in holding that a Minister could be enjoined from taking action under an ultra vires statute. Again, it might be said that the decision rested at least equally on the finding that the threatened acts of the Minister were those . of a servant of the legislature. For the reasons previously stated, how- 79 See Kennedy, Suits By and Against the Crown (1928), 6 Can. Bar Rev. 329, at pp. 334-336. For a survey of the injunction in Australian public law see Friedmann, Declaratory Judgment and Injunction as Public Law Remedies (1949), 22 Austl. L.J. 446. 11 Supra, footnote 38, at p. 575 . so The opinion of the Privy Council is somewhat marred by an express reliance on two cases, cited at pp. 575-576 which involved actions in damages against Crown officers for unauthorized acts committed by them. It is one matter to give damages against the officer after the event, but quite another to restrain his acts in advance. The latter course may interfere with government activity, whereas the former would not. Nevertheless, the conclusion reached by the Privy Council is unexceptionable, even if it does not necessarily follow from the precedents cited. 81 See Smith, Liability to Suit of an Agent of the Crown (1950), 8 U. of T. L.J. 218, passim.

26 THE CANADIAN BAR REVIEW [VOL . XLII ever, this basis of determining liability to suit is unsatisfactory. In this case it would be particularly illogical. If the Minister had truly been acting as a servant of the legislature he would necessarily be acting under a valid statute and ipsofacto could not be restrained. Though neither of the rules which were applied in this case lo- gically excluded the other, the weightiest one is the simple holding that an officer may be enjoined from enforcing invalid legislation. The law on this point has been strengthened indirectly by the recent Supreme Court decision in Roncarelli v. Duplessis.s2 There the Supreme Court restored a judgment for damages against the defendant, who was Prime Minister and Attorney General of Quebec. The court was satisfied that the defendant had ordered the cancellation of plaintiff's restaurant liquor license. The majority held that the defendant's acts were not official acts because, even assuming that in a proper case he could order cancellation of a liquor license, the reason for which he did it here was not in any way related to the purposes of the provincial Alcoholic Liquor Act." Nor could he rely on article 88 of the Code of Civil Proce- dure, which provides that "no public officer or other person ful- filling any public function or duty can be sued for damages by reason of any act done by him in the exercise of his functions . . . unless notice of such action has been given him at least one month before the issue of the writ of summons . . .". It was the majority view that as the defendant had not been acting "in the exercise of his functions" it was irrelevant that the notice had not been given. While this case is one for damages after the event rather than for an injunction before the event, it is an authoritative example of a public officer losing his "official" status by exceeding the bounds of statutory authority. There would thus appear to be adequate authority in the Eng- lish and Canadian decisions for the issue of injunctions against officers who act beyond the scope of their statutory authority or who rely on an invalid statute. In the cases mentioned there is perhaps little objection to treating this as a matter of "status". How- ever, the status concept is not helpful in solving the further problem of whether, assuming an officer's acts to be originally authorized, the authority terminates if they are carried out in a manner which in a private citizen would amount to the commission of a tort, breach of contract or crime. If an officer is empowered to make and perform certain types of contracts for the government, does he lose his status as a Crown officer if he commits a breach sa [19591 S.C .R. 121 . 11 R.S .Q ., 1941, c. 255.

1964] Injunctions Against Crown Officers 27 of contract? If he is authorized to operate a government liquor store, does that authority terminate insofar as he operates the store so as to create a nuisance? Confusion exists here, it is suggested, because of judicial pre- occupation with the "status" concept. If the courts would concentrate on the question of whether the act in issue is or is not authorized, it would not be difficult for them to say that performance by the officer in a manner not required or permitted by the statute could be restrained in order to prevent someone being injured thereby. When the courts look to status instead, it is not easy to say that an officer throws off his official mantle when he commits a tort in the course of his duties. In tort and contract a principal may be responsible for unauthorized acts because the agent is in law still his agent. This difficulty is illustrated in the decision of the United States Supreme Court in Larson v. Domestic and Foreign Commerce Corp. 84 There the respondent had sought to prevent the War As- sets Administrator from reselling coal which respondent alleged he had already purchased. The Supreme Court treated this as an action against the United States. The officer, it was said, was still acting as an officer. To determine this, the same test was used as is applied to establish the principal-agent relationship in private law -the test of "scope of authority" . 8s As the officer was acting within the scope of his authority so that in private law he would be deemed to have bound his principal (the government), his principal's immunity should therefore clothe him. Admittedly, an argument can be made out in Canada for an immunity from injunction for Crown officers in such circumstances. It may be said that as there are statutory provisions in most jurisdictions making the Crown fully liable for breach of contract or tort committed by its officers, the remedy of damages against this perpetually solvent defendant is of itself adequate. Injunctions in such cases, it could be argued, might interfere with perfectly valid acts as well. And there is a certain logic in saying that if the acts of the agent are the acts of the principal, the immunity of the principal is the immunity of the agent. It is submitted, however, that the position as exemplified in the Larson case is unnecessary. In the first place, it is often misleading to speak of official acts as constituting a breach of contract, tort, or crime. Even though similar acts performed by a private citizen might be illegal, the legislature may in fact have authorized an

81 (1948), 337 U.S. 682. 85 Ibid., at p. 695.

28 LA REVUE DU BARREAU CANADIEN [VOL . XLII officer to do the very things of which complaint is made. In the liquor store example mentioned previously, if the statute auth- orizes the operation of such stores at any site which the agency in charge may choose, and if a store is duly located in a fashionable residential area, the neighbours cannot complain of a nuisance. Their normal rights have to this extent been abrogated by statute. As was illustrated in the East Suffolk Rivers Catchnient Board case,86 a statutory agency empowered to perform certain acts as it sees fit is not under the same duty of care that might be cast on a private "officious bystander". A government agent for the pur- chase of war material does not commit a breach of contract if he is required by statute to reduce the price specified by contract in order to prevent excess profiteering. In the field of criminal law, this situation was neatly illustrated in Canadian Broadcasting Corp. v. Attorney General for Ontario.", The corporation, owned by Her Majesty in right of Canada, was prosecuted under the Lord's Day Act" for broadcasting on Sun- day. In an action for prohibition against the magistrate hearing the case, the Supreme Court on appeal held for the corporation. The majority found that the prosecution must fail, either because the corporation did not come within the class of persons subject to the Lord's Day Act, or because Parliament had impliedly authorized seven-day-a-week broadcasting by the corporation in its Act of incorporation. The court therefore found it unnecessary to deal with concepts of Crown immunity from prosecution because there were no illegal acts on which to found a prosecution. Similarly, the other examples suggested in the field of tort and contract really raise no problem of Crown immunity. The court can refuse to intervene for the same reason as in cases such as Lords Commissioners and Lake Champlain-that is because acts of officers within their sphere of authorization cannot be said to be illegal or infringe on the "rights" of private persons. If, on the other hand, the legislature has not deemed it necessary to legalize acts which deviate from the norms imposed on ordinary citizens, there seems to be little justification for the courts protecting their commission . If for example the manager of the government liquor store operates the business in a way whereby offensive odours or noises are unnecessarily generated on the premises, this would be an unauthorized invasion of the neighbours' rights which a court could restrain. It is always open to the legislature to authorize such conduct if it wishes to do so. In the absence of such author- 86 Supra, footnote 68. 87 [19591 S.C.R. 188. 11 R.S.C., 1952, c. 171.

1964] Injunctions Against . Crown Officers 29

ization the courts should feel free to protect the normal rights of those adversely affected by government activity. Here again it may be said that the test of "status", while generally valid, may lead to confusion in particular cases. The courts could better concentrate on the acts in question, and determine whether or not they are authorized by the legislature. If they are authorized, the court should recognize the exclusive control of legislature over executive. If not authorized, either because of want of statutory mandate or want of constitutional power in the legislature, the legislature cannot be. said to have reserved its control over the exercise of powers not lawfully committed by it to the executive.

.2. Functions sought to be controlled. There are observable patterns in the decisions which suggest a judicial reluctance to control Crown officers, not simply on the formalistic bases previously discussed, but because the functions involved bear some special relationship to the Crown. This prag- matic approach is preferable, though it should not be attributed to the needs of "Crown immunity". It is really only an application ,of the fundamental principle of responsible government-that certain decisions are reviewable by Parliament and not by the courts. (a) The advisory function. This function is one peculiarly reserved to Ministers of the Crown. It covers a great variety of matters which the legislature and constitutional usage have left within the discretion ofthe Crown. At the core of constitutional monarchy is the principle that the Crown must accept the advice of Ministers who have the confidence of the legislature. What the advice shall be is a matter solely for the Crown's advisers, provided they can maintain that confidence. In the Toronto Junction Recreation Club case" the function in question was that of advising the Lieutenant-Governor in Council with respect to the cancellation of a corporate charter. The court refused to enjoin the Attorney General from making a recom- mendation for revocation. In the Orpen case" the court refused to order the Attorney General to advise the Lieutenant-Governor to issue a fiat in response to plaintiff's petition of right." as Supra, footnote 21 and accompanying text . ss Supra, footnote 30. si See also Harper v. Home Secretary, supra, footnote 7, where the plaintiff unsuccessfully sought to restrain the Home Secretary from submitting a report to Her Majesty in Council. There however Parliament had imposed some statutory restrictions on the nature of the report to be presented.

30 THE CANADIAN BAR REVIEW [VOL . XLII Of equal importance is the power and duty of Ministers to propose measures to the legislature. It is improbable that the courts would seek to intervene at this stage in what is really a political process. In Merricks v. Heathcoat-Arnory 92 the English Chancery Division refused to grant an injunction against the Minister of Agriculture to restrain him from seeking parliamentary approval for a marketing scheme which, if approved, would be implemented by ministerial order. While the court there relied on the Crown Proceedings Act, 1947 91 as generally prohibiting all injunctions against officers of the Crown, it has been pointed out" that, even in the absence of the statutory bar, a court would probably not interfere with the conduct of a member of Parliament in the House. The Attorney General on behalf of the Minister of Agriculture contended that such an injunction would interfere with the work- ings of Parliament," and in the normal case this would appear to be so. It would appear, however, that a private citizen might be restrained from petitioning the legislature for a private Act." This does not interfere with ministerial responsibility or the internal functioning of the legislature. It is arguable that ministers might be enjoined from making recommendations to the Crown or to the legislature where such advice is given by an improper procedure or where it would, if followed, result in invalid Crown or legislative action. Thus in Attorney Generalfor New South Wales v. Trethowan" it was held that ministers could be enjoined from presenting certain bills to the state Governor for royal consent. The bills had not received prior approval of the electors, as required by the constitution for this particular type of legislation." In the interests of maintaining a maximum immunity for the advisory function, however, it would be better for the court to exercise its discretion in such cases and 92 Supra, footnote 2. 93 Supra, footnote 1. 94 De Smith, Subordinate Legislation and Injunctions to Ministers (1955), 18 Mod. L. Rev. 618. 9: The following exchange is reported to have occurred during argument : "Attorney General: . . . Attempting to influence the conduct of a member of Parliament in Parliament by any kind of threat [is] clearly a breach of the privilege of Parliament and punishable as contempt . In the old days, those who attempted that kind of thing were dealt with, and one could find instances where counsel and their clients had been summoned to the Bar of the House and dealt with for contempt . Upjohn, J. : Are you threatening me, or whom are you threatening? Attorney General : I am not threatening anyone . I was merely adverting on what happened in the old days." The London Times, May 4th, 1955, p. 4, col . 2. ss Berthiaume v. Du Tremblay, supra, footnote 12. But see contra Laskin (1955), 33 Can . Bar Rev. 215 (a persuasive criticism of the Berthiartme decision), and Holdsworth, History of English Law, vol. XI (1938), p. 361 . 97 [19321 A.C. 526. 91 But cf. Harper v. Home Secretary, supra, footnote 7.

1964] Injunctions Against Crown Officers 31

not issue an injunction . The court should not assume in advance that the Crown or the legislature will accept improper advice or agree to take unauthorized action." If the advice or recommenda- tion is turned into a decision, order, or legislation, and invalid acts are threatened, the court should be prepared to intervene. (b) Management of the public treasury. The raising and expenditure of public funds has long been recognized as a function properly'within the control of the elected representatives. Almost any attack on the treasury, any effort to command payment from it, must be considered an interference with the legislative power. An order requiring payment would, in effect, equally require the legislature to allocate funds for that payment. An order preventing payment frustrates the legislative decision to raise and expend funds for a particular purpose. With respect to ordering payment, the courts in mandamus cases such as that of the Lords Commissioners have avoided such action.'°° Presumably the same would be true if a mandatory injunction were sought for this purpose. A different attitude is justified, of course, if the legislature has allocated funds which are to be paid out as ordered by a court. Legislation now prevailing which permits actions for damages against the government represents such an allocation, as does legislation such as that involved in H.M. the King v. Minister of'Finance. With respect to the prevention of payment, the situation would be rare indeed where one citizen could have a government officer enjoined from making payment to another citizen. The legislature has the widest discretion in the bestowal of public bounty, and even where legislature or executive acts beyond the scope of its authority, the citizen seemingly would have no standing to protest through the courts."' There are special situations where the court may intervene indirectly, however. If the court appoints a receiver for funds owing to a person and enjoins such person from receiving these funds himself from any third party, the government is bound not to make such payments directly to that person.los If a Minister permits his department to make such payment he may be cited for

99 See National Trust Co. v. Christian Community, supra, footnote 71 ; Laskin, op. cit., footnote 96. 101 See also e.g. H.M. the Queen v. Secretary of State for War, [1891] 2 Q.B. 326. Col There is apparently no Canadian decision on this point. In the United States, see e.g. Frothingham v. Mellon (1923), 262 U.S . 447 . "I Eastern Trust Company v. McKenzie, Mann & Co. Ltd., [1915] A.C. 750; Glazer v. Union Contractors Ltd. (1960), 33 W.W.R. 195, 25 D.L.R. 653 ; aff'd. (1960), 34 W.W.R. 193, 26 D.L.R. 349 (B.C.C.A.) .

32 LA REVUE DU BARREAU CANADIEN [VOL . XLII aiding and abetting the recipient in the latter's contempt of court. 103 Here it may be said that the legislature has impliedly authorized payment under government contracts to be made only to those persons entitled in private law to receive it. There is no interference with the prerogatives of the legislature. (c) Management ofpublic property. Under a variety of circumstances courts have refused to proceed against a Crown officer, agent, or trustee where the real issue involved was the validity of the Crown's interest in property. It is submitted that this approach is not based on Crown immunity, but stems from a desire of the courts to have the proper party before them. Usually the courts have asserted this position by holding that the proceeding is improper unless commenced by petition of right. Petition of right was until recently the only direct method of suing the Crown eo nomine. In Montreal and European Short Line Ry. Co. v. Steuvart 3°I it was held that a trustee could not be enjoined, except by petition of right, from acting under an allegedly invalid trust deed of which the Crown was cestui que trust. In Attorney General fbi- Ontario v. McLean Gold Mines Ltd."' the plaintiff's mining claims had been forfeited to the Crown in tax proceedings. The Crown made a new grant of the claims. When plaintiff sought various declarations to establish that the forfeiture had been invalid and that it, rather than the second grantee, was entitled to ownership, the court held that such a proceeding must be by petition of right. To achieve what it sought, the plaintiff would not only have to prove the second grant to be invalid, but would also have to attack the title of the Crown which had intervened between the title of the plaintiff and the second grantee. In Lovibond v. Grand Trunk Ry.106 the plaintiff sought orders requiring the Can- adian National Railway, to which the federal Minister of Finance had submitted certain stock for cancellation, to restore this stock to the names of the persons from whom the government had com- pulsorily purchased it. The Privy Council held that Canadian National Railway was acting as trustee for the Crown, that only the Crown would be injured if such orders were made, and that to achieve the plaintiff's objective resort must be had to petition of right. The Privy Council, in considering its own prior decision in the McLean Gold Mines case, said that this decision did not mean that every attack on title to property at one time owned by the Crown was an attack on the Crown. It preferred to interpret this "a Glazer v. Union Contractors Ltd., ibid. 303 Supra, footnote 23. 305 [1927] A.C . 185 . 106 [1936] 3 D.L.R. 449 (P.C.).

1964] Injunctions Against Crown Officers 33

case as turning on the fact that the Crown would take certain benefits under the terms ofthe second grant, and that it would thus stand to lose if the second grant were overthrown. Similarly in the Lovibond case the Crown would suffer if the trust res disappeared. Recently, the Supreme Court of Canada in Contact Mining & De- velopment Co. Ltd. v. Craigmont Mines Ltd."' upheld the view of the British Columbia Court of Appeal that an action for a declaration of invalidity of a Crown grant to the defendant, where the Crown had reserved certain rents and royalties under the grani, could only be maintained if the Crown were made a party. But, in B. C. Power Corp. et al v. Royal.Trust Co. et al, 101 an action where the Attorney General was a party, the Supreme Court held that Crown immunity could not prevent an adjudication as to the validity of Crown title to shares where that validity depended on the constitutionality of certain provincial legislation. These cases may be contrasted with that of Tamaki. The injunction against the Commissioner of Crown Lands was sought on the basis that he had no authority to advertise and sell the former Maori lands because the possessory title had never vested in the Crown. In the Privy Council Lord Davey held that this did not constitute an attack on Crown title in fee, which had never been in dispute. The only question would be whether the Crown had ever acquired possessory title to the Maori land. Lord Davey apparently considered that the court could grant an injunction against the officer without necessarily making a declaration as to that title."' The decision at this point becomes hard to, follow in that the officer's actions would have been valid if the possessory title ofthe Crown were valid, and invalid if that title were invalid.1io If the officer were restrained, the Crown would be deprived of one important incident of ownership-the right to advertise and sell the land. Whatever the merits of the Tamaki case on this point it is not necessarily contrary to the other decisions. The other cases do not hold that Crown title to property is never a proper subject for judicial determination. The real effect of the decisions is that if Crown title is attacked, the Crown should be a party to the proceeding rather than the Crown officer, agent, or trustee alone,

"' (1961), 29 D.L.R. (2d) 592, affirming without written reasons the decision of the B.C. Court of Appeal (1960), 35 W.W.R. 214, 26 D.L.R. (2d) 35. 108 (19621 S.C.R. 642. 109 ,supra, footnote 38, at pp. 574-575 . uo But for an American judicial approach similar to that of the Privy Council here see U.S . v. Lee (1882), 106 U.S. 196.

34 THE CANADIAN BAR REVIEW [VOL. XLII Tamaki implicitly acknowledges this principle by holding that the proceedings therein were not an attack on Crown title. This principle is readily explained by the fact that in most jurisdictions the legislature has provided a means through petition of right (or now, through a simple action against the Crown without petition) of litigating such matters. The courts may properly insist that the method provided be used. In many cases, moreover, the court could give complete relief only if it had the Crown before it as a party. Vesting orders or declarations could not be made against the Crown unless the Crown had appeared and had been given an opportunity to defend its title. In the absence of such legislative provisions, however, it would now be hard to argue that Crown title could not be attacked inci- dentally in proceedings to restrain Crown officers. It is no violation of the principle of responsible government for instance, to prohibit an officer from trespassing on land which the Crown has not legally acquired. The mantle of the executive-legislative interrelationship is not cast over property not legally committed to Crown ownership. If the Crown were not a party it would not actually be deprived of its title and thus there would be no problem of causing a loss of Crown property with its consequent burden on the treasury. The rule that a Crown officer cannot be sued or restrained where Crown title to property is questioned therefore does not flow from an absence of rights in the citizen or a lack of jurisdiction in the court. It is a procedural rule only. D. Exercise of the Equitable Discretion. While it has been noted. that the injunction is frequently available, it is submitted that the courts should grant it sparingly. There are reasons why the equitable discretion should often be exercised in favour of Crown officers. The injunctive remedy may often be unnecessary. Usually the claim to an injunction is coupled with one for a declaratory order to determine the validity of threatened official action. If a declara tory order is made, the court should not lightly assume that the executive will ignore this determination of rights."' As has been pointed out, governments in Canada have respected advisory opinions on constitutional points, which opinions have no binding effect on anyone. Apart from this factor, there is the practical difficulty of drawing the injunction in proper terms. If it is too "'See Mayland v. Lymburn, [1931] 1 W.W.R. 735, at p. 742, [19311 2 D.L.R. 698, at p. 704 (Alto.).

1964] Injunctions Against Crown Officers 35

wide it may well embarrass legitimate official activity as well as prevent the illegitimate. Some additional factors may be noted with respect to interim injunctions granted before trial and ; full argument of the case. When an application is made for such an injunction the judge must, if he thinks the plaintiff's claim has any merit, seek to preserve the status quo pending trial. He must try to strike a balance of con- venience, to decide whether it will be a greater injury to the plaintiff if the acts continue than it will be to the defendant if they are stopped. This alternative puts the judge in a difficult position, as it is a matter of weighing the personal interest of the plaintiff against what may well be the public interest. If the judge can at- tribute any good faith to the defendant officer, he may be reluctant to sacrifice the possible public interest to the possible private interest. Also, in the normal case where an interim injunction is granted against a private citizen, the plaintiff may be required to give security for the payment of damages to the defendant should his claim ultimately fail. In most cases against government officers, however, such a requirement is pointless because the officer will probably suffer no personal loss if he is wrongly restrained in the performance ofhis lawful duties. There is no deterrent to the plaintiff with a groundless claim. The problem of the interim injunction has special significance where it is alleged that the officer's authority comes from an invalid statute. In one case where the point was discussed, Home Oil Distributors Ltd. v. Attorney General for British' Columbia,112 the British Columbia Court of Appeal held that an interim injunction could be granted because there was a substantial constitutional question involved.113 However, the sanie court seven years later in Campbell Motors Ltd. v. Gordon declined to issue such an injunction, the majority stating that "the present case affords singularly unattractive ground for a second exception of this kind . . ." .114 The statute there impugned was wartime price control legislation. The court was concerned about the possible effects of even a temporary 112 [1939] 1 W.W.R. 49, [1939] 1 D.L.R. M 573 (B.C.C.A.). For other examples of such injunctions see Canadian Pacific Ry Co: v. Attorney General of Saskatchewan, [1948] 2 W.W.R. 414 (Sask. K.B.) ; Duplain v. Cameron (No. 1) (1960), 32 W.W.R. 193, 24 D.L.R. (2d) 619 referring to an interim injunction previously granted (Sask. C.A.) ; Duplain v. Cameron (No. 2), satpra, footnote 60, involving a motion to continue an interim injunction granted ex parte. 124 [1946] 3 W.W.R. 177, at p. 191, [1946] 4 D.L.R. 36,atp .48(B.C.C.A.) See also Duplain v. Cameron (No . 2), ibid.; where Brownridge J., in the exercise of his discretion, refused to continue the injunction taking the view that the impugned order of the Securities Commission must be treated as valid until its constitutional validity was finally determined .

36 LA REVUE DU BARREAU CANADIEN [VOL . XLII restraint on the enforcement of this statute in the immediate post- war period. The cases should be few indeed where injunctions are granted before a full judicial determination can be made of the whole constitutional issue. The court should not lose sight of the presumption in favour of the validity of statutes : the burden on the plaintiff to make out a prima facie case of invalidity should be considerable. If the application for the interim injunction is made ex parte, the burden should be even greater.

III. Statutory Modifications. A. English Legislation. The Crown Proceedings Act, 1947'11 worked a revolution in actions against the Crown in England. Most of the anomalies were swept away and the Crown put in a position similar to that of a private defendant. It is not clear that the provisions of the Act with respect to injunctions were of an equally liberal purpose or effect. Section 21 provides in part as follows : 21. (1) In any civil proceedings by or against the Crown the court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require : Provided that : (a) where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties ; . . . (2) The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which could not have been obtained in proceedings against the Crown. This provision received very little attention when the Act was considered in the House of Commons. The Lord Advocate remarked that "one must keep in mind the fact that the Crown may have to take certain steps at the shortest possible notice which infringe the rights of the subject . . ." .111 This remark suggests that the purpose of the section was to permit an excess of authority without court interference . The Treasury Solicitor, writing of the section us Supra, footnote 1. us (1947), 439 H.C. Deb. (5th ser.) 1749. Apparently the section was not discussed in the House of Lords.

1964] injunctions Against Crown Officers 37 later, gave a similar interpretation of its purpose.117 Thus the immunity to injunction was apparently intended to cover officers acting outside the scope of their authority and would .prevent all injunctions against persons actually or purportedly acting as servants of the Crown. The courts have also attributed this meaning to the section. In Underhill v. Ministry of Food"' the plaintiff sought to prevent the Ministry from extending the rationing system to cover certain materials not previously restricted. It was alleged on various grounds that the Minister had acted beyond the powers of the relevant Act in formulating his proposed rationing scheme. Never- theless, upon argument for an interim injunction, the court and all parties agreed that an injunction against the defendant would be prohibited by section 21 of the Crown Proceedings Act, 1947. It was apparently assumed throughout that the defendant would be a servant of the Crown even if it were.exceeding its lawful powers. The court also held that there was no other interim relief available because the court could not, as requested, give an "interim declaration" as to rights. The "declaration" referred to in section 21 was held to be a final declaration.119 In Merricks v. Heathcoat-Amory 120 the court reached the same conclusion. A potato marketing scheme was about to be proposed to both houses of Parliament by the Minister of Agriculture. It was alleged inter alia that the scheme was outside the authority of the relevant statute and that its proposal should be enjoined. Never- theless, the court relied on section 21 to refuse an injunction against the Minister. He was deemed to be acting as an officer of the Crown, even though the court never reached the question as to whether the scheme was or was not authorized. If these cases are generally followed in England, the common- law rule as expressed in Tamaki is now abolished. It was suggested in Harper v. Home Secretary, in obiter, that section 21 might not prevent an action against an officer sued in his private capacity. 121 But it is hard to understand why, if the court can not enjoin an official defendant from committing unauthorized acts, it should be able to make such an order if the defendant is described in the

117 Barnes, The Crown Proceedings Act, 1947 (1948), 26 Can. Bar Rev. 387, at p. 395. Sir Thomas Barnes was said to have played an important part in the drafting of the bill : see (1947), 146 H.L. Deb. (5th ser.) 66. us Supra, footnote 2. 119 Ibid., at p. 593. Approved in International General Electric Co. v. Commissioners of Customs, [196212 All E.R. 398 (C.A.). For a criticism of this conclusion see Street, op. cit., footnote 17, p. 141, n. 7. 120 Supra, footnote 2. 121 Supra, footnote 7, at p. 254.

38 THE CANADIAN BAR REVIEW [VOL. XLIJ statement of claim as a private citizen. An immunity extending to unauthorized officers should extend to officers sued in their private capacity with respect to official acts. At best, the distinction based on capacity in which the defendant is sued is very artificial. The judicial interpretation given to the Crown Proceedings Act, 1947, is offundamantal significance . It does not deny that the plaintiff may have rights determinable by the courts. In this view, the Act simply says that the injunction is an inappropriate remedy against the Crown or an officer of the Crown : that the declaration which the court may make instead is the better remedy. From a study of the decisions it could be said that, prior to the Act, judicial refusal to grant injunctions against Crown officers was based on a recognition that in certain areas the citizen had no right to official action or inaction. The Act does not purport to cover those areas of official activity, but applies only to situations where the courts do have a power of review. In such situations, no interim relief is available, and upon final judgment plaintiff may be entitled to a declaration of his rights but not to an injunction. B. Canadian Legislation. There is no federal legislation generally granting or denying the remedy of injunction against federal officers,12'2 though several common-law provinces have adopted legislation, similar to the Crown Proceedings Act, 1947, affecting injunctions against provincial officers. A year after the passage of the English statute, the Conference of Commissioners on Uniformity of Legislation in Canada commenced a study with a view to drafting model legislation in this field. After two years of consideration the Conference adopted a model statute, The Proceedings Against the Crown Act."' Section 122 But see the Crown Liability Act, supra, footnote 14, which abolished petition of right and generally rationalized federal Crown liability . Though the Act does not refer to injunctions, it does in section 4 prohibit any proceedings against the Crown or its servants with respect to certain specified matters. Other statutes creating special tribunals sometimes have privative clauses purporting to prohibit all proceedings against the tribunal by way of review, including actions for injunctions. 123 [19501 Proceedings of Conference of Commissioners on Uniformity of Legislation in Canada, p. 76 [hereinafter cited as Uniform Act). Section 16 provides in part as follows: "(2) 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, the court shall not, as against the Crown, grant an injunction or make an order for specific performance, but may, in lieu thereof, make an order declaratory of the rights of the parties . . . . (4) The court shall not in any proceedings grant an injunction or make an order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown

1964] Injunctions Against Crown Officers 39 16, subsections (2) and (4) of that Act had provisions virtually identical to those in section 21 (1), and (2) of the English statute, These provisions have been adopted with little or no modification in Alberta,124 Manitoba, 121 New Erunswick,121 Nova Scotia, 127 Ont- ario,121 and Saskatchewan.129 What does this legislation mean in Canada? The proceedings of the uniformity commissioners do not reveal what purpose was intended to be served by section 16 nor is there any relevant legis lative history available in the adopting provinces. As yet there is a paucity of judicial authority as to its proper interpretation. The apparent legislative purpose in England is not completely acceptable in Canada. If the English executive sees fit to exceed its powers, it may well expect to secure subsequent parliamentary ratification for actions otherwise illegal. There are no external constitutional limitations to prevent such ratification. While some might question the propriety of such a procedure, it gives plausibil- ity to the English interpretation of the section. The executive of a Canadian government, whether federal or provincial, cannot always entertain such expectations. In a federal system, with limited legislative powers at each level, it is impossible for a legislature to ratify acts outside the scope of its jurisdiction; or the acts may have been performed pursuant to existing legislation which is itself unconstitutional . As has been seen, section 16 of the Uniform Act, like section 21 of the Crown Proceedings Act, 1947, would be important only in cases where a want of authority, either statutory or constitutional, is alleged. Should it be given the same interpretation in Canada as in England so as to bar all injunctions against Crown officers in cases where the court would otherwise have a power of review? Two Saskatchewan cases have dealt with the interpretation of this section. In Duplain v. Cameron (No. 2) 130 the court found that the defendant members of the Securities Commission were "agents that could not have been obtained in proceedings against the Crown, but in lieu thereof may make an order declaratory of the rights of the parties. . ." The only significant difference between this and the Crown Proceedings Act, 1947, is the last phrase of subsection (4) allowing a declaratory order against a Crown officer. This probably does not add anything to the common law, but if it does it strengthens the argument that the Canadian legislation should be construed as cutting off all injunctions against Crown officers. Here the sub-section could be said clearly to have substituted one remedy for another. 124 S.A., 1959, c. 63, s. 17. 125 R.S .M., 1954, c. 207, s. 17. its 127 R.S .N .S., 128 R.S.N.B., 1952, c. 176, s. 14. 1954, c. 225, s. 15. S.O ., 1952, c. 78, s. 16. This statute has never been proclaimed in effect, and was not printed in R.S.O., 1960. 119 R.S .S ., 1953, c. 79, s. 17. 150 Supra, footnote 60..

40 LA REVUE DU BARREAU CANADIEN [VOL . XLII of the legislature" and thus not protected by the section, while in Taal et al v. Saskatchewan Medical Care Insurance Commission"' it was held that the defendant Commission was an "officer of the Crown" and thus within the protection of the section. In both cases a searching analysis was made of the relationship between the defendants and the executive government generally. Also in both cases an assumption was made that the statutory terms "servant of the Crown" or "officer of the Crown" were referable to the old (and, in my view, misconceived) dichotomy between "servants of the Crown" and "servants of the legislature." This assumption brought to bear the further assumption that the legislation had simply codified the previous decisional law which had held that the acts of an agent of the legislature can be reviewed because in such cases the citizen has "rights", whereas the acts of an officer or servant of the Crown cannot be reviewed because with respect to such acts the citizen has no judicially enforceable "rights". In other words, the legislation was treated as involving substantive rights. It is submitted that, on the contrary, section 16 of the Uniform Act in this regard only deals with remedial matters. It states that the injunction is not a proper remedy against an "officer of the Crown". By definition, "officer" "includes a minister of the Crown and any servant of the Crown"."' The term "officer" should be taken to include any employee of the Crown. If one has any doubts on the matter, he need only look at section 5 of the Uniform Act where, in subsection (1) the Crown is made liable ". . . (a) in respect of a tort committed by any of its officers or agents ; . . .". Can one doubt that if a court were called on in this context to interpret this same word, "officer", in the same statute, it would properly give the word a broad interpretation embracing every government employee? It is open to the courts to give the term a similar interpretation in section 16 so as to refuse injunctions against all such employees. Canadian courts have been unwilling to apply statutory provisions ousting their jurisdiction to review official action, at least in cases where it is alleged that the officer acts or threatens to act without authority. A number of statutes creating special agencies purport to prohibit any form of proceedings against the agency or its officers. The courts have nevertheless taken jurisdiction where the authority of the agency is questioned, because they consider

lai Supra, footnote 63. 112 Uniform Act, supra, footnote 123, s. 2(c).

1964] Injunctions Against Crown Officers 41

that such privative sections only protect the agency where it acts within the scope of the Act and where the Act itself is valid.133 By analogy it could be argued that an officer acting outside the scope of his authority would not be an "officer of the Crown" and not entitled to the protection of section 16 of the Uniform Act. How- ever, the reluctance of the courts to give full effect to general privative clauses can only be justified on traditional rules of statutory interpretation. These include the presumption against a change in the common law, or the presumption against legislative intent to deny access to the courts. Unless the legislature clearly states that there can be no review as to the jurisdiction of officers or tribunals the courts may refuse to assume that such review is precluded. The Uniform Act, however, like the Crown Proceedings Act, 1947, does show a legislative intention to prohibit injunctions against Crown officers. The general scheme of these Acts must be noted-to see why this is so. The Uniform Act,like the Crown Proceedings Act, 1947, permits actions directly against the Crown without consent in all cases where petition of right was formerly required.134 Petition of right was used for actions for the recovery of property and for actions in contract."' These Acts also make the Crown directly actionable for the tort of its servants or officers, and further make clear that such vicarious liability extends to acts committed by an officer in purported execution of his duties, whether legally authorized so,to act or not."' These then are the types of actions in which section 16(1) of the Uniform Act and section 21(1)(a) of its English counter- part (above quoted) deny the injunction as a remedy against the Crown itself. Such actions, it may be observed, could raise all manner of questions involving the statutory authorization of acts committed and the constitutional validity of statutes . Even if unauthorized acts were being threatened, no, injunction could be granted against the Crown sued as such : the proper remedy would be a declaration as to the rights of the parties. 133 See e.g . St. John v. Fraser, [1935] S.C.R. 441, judgment of Davis J., at p. 451 ; Toronto Newspaper Guild v. Globe Printing Company, [19531 2 S.C.R. 18; Laskin, Certiorari to Labour Boards : The Apparent Futility of Privative Clauses (1952), 30 Can. Bar Rev. 986 and the decisions referred to therein ; LeDain, The Supervisory Jurisdiction in Quebec (1957), 35 Can. Bar Rev. 788, at pp. 820-829 . ]34 Uniform Act supra, footnote 123, s. 4. As adopted in the various provinces the section numbers vary somewhat from province to province. In the Crown Proceedings Act, 1947, section i is the comparable section, supra, footnote 1. "e See Canadian Pacific Ry. v. Attorney General of Saskatchewan, supra, footnote 52 ; Street, op, cit., footnote 17, pp. 3-4 . M Uniform Act, supra, footnote 123, s. 5, especially s. 5(3) ; Crown Proceedings Act, 1947, supra, footnote 1, s. 2, especially s. 2(3) .

42 THE CANADIAN BAR REVIEW [VOL. XLII With respect to proceedings against officers, these statutes do not enlarge or contract the rights of action available at common law. As I have shown, the common law only allowed the courts to intervene by injunction against officers where a want of authority was established. Only here did the citizen have "rights" and it is only in such cases that section 16 would be resorted to. Section 16(4) of the Uniform Act (section 21(2) of the Crown Proceedings Act, 1947) merely says that the court shall not "grant an injunction or make an order against an officer of the Crown . . . if the effect . . . would be to give any relief against the Crown that could not have been obtained in proceedings against the Crown . . .". If an injunction could not be obtained against the Crown directly to restrain unauthorized acts, it should not be available to restrain particular officers through whom the Crown must act. If any other interpretation is given, the Act would mean that while Crown officers as a whole could not be restrained by a single injunction against the Crown, they could be individually restrained by a separate action against each of them. The Crown would be equally restrained in the latter case, as it can only act (whether validly or invalidly) through officers. The courts should not have an aversion to this result such as they had to privative clauses entirely ousting jurisdiction. By section 16 of the Uniform Act one type of remedy, the declaration, is substituted for another, the injunction. A court still has jurisdiction to hear the case because it is capable of giving some relief. If on the one hand it does not share the faith of the legislature that the executive will observe the declaratory order, it is on the other hand spared the embarrassment of trying to draft and enforce a proper injunction. It is therefore submitted that as the Canadian courts are called on to interpret these sections of the uniform Proceedings Against the Crown Act, they should follow the English authorities and deny injunctions against officers whether or not the officers act with authority. The apparent legislative purpose behind the English statute is not acceptable in Canada per se. But without any reference to legislative history, a reading of the Uniform Act as a whole indicates that this is its proper interpretation. And there may well be merit in substituting one remedy for another as long as the court retains the power to inquire into alleged excesses of authority. This is the only power really essential to the federal system. Support for this interpretation of The Proceedings Against the Crown Act in the common-law provinces where it has been

1964] Injunctions Against Crown Officers 43 adopted may be found in a parallel situation in the law of Quebec. There article 87a of the Code of Civil Procedure provides : No proceeding by way of injunction . . . shall lie against the Govern- ment of this Province or against any Minister thereof or any officer acting upon the instructions of any such Minister for anything done or omitted or proposed to be done or omitted in the exercise of the duties thereof including the exercise of any authority conferred or purporting to he conferred upon same by any Act of this Legislature .1137 The sections of The Proceedings Against the Crown Act referred to, when read together, seem to be of the same, effect as this single article. In Johnson Woolen Mills Ltd. v. Southern Canada Power Co. Ltd.,"' article 87a was held to prevent the grant of an interlocutory injunction against a companies inspector appointed by the Pro- vincial Secretary, even though it was alleged inter alia that his ap- pointment had not been made in accordance with the relevant statute. This interpretation means apparently that an "officer" does not cease to be such for the purposes of article 87a even though his acts might be proven to be unauthorized. The court will recognize the bar to an injunction without inquiring whether, in this particular case, the officer had valid authority to act. Of course, in provinces where these statutory limitations have not been adopted, the common law will still permit the remedy of injunction against provincial and federal officers. In the prov inces where they are in force, the common law will still govern actions against federal officers. Section 2(b) of the Uniform Act defines "Crown" to mean "His Majesty the King in right of the Province . . .". Whether or not a province could regulate such actions against the federal Crown and against federal officers, this Act does not purport to do so, nor does article 87a of the Quebec Code of Civil Procedure.

IV. Conclusions. It has been seen that during the last century the English and Can- adian courts have been trying to define the proper role of-the injunction in judicial supervision of the executive. Varying formulae have been applied. The distinction between right and remedy has not always been observed. In some jurisdictions the legislature has added to this confusion by a somewhat ambiguous statute. It is suggested, nevertheless, that the following principles may be drawn from a study of the cases and statutes. 1. There is a large area of executive activity in which the courts 1137 Emphasis added. 113$ [1945] Que. K.B. 134 (C.A .) .

44 LA REVUE DU BARREAU CANADIEN [VOL . XLII

cannot exercise supervision. The judiciary is not excluded on some principle of sovereign infallibility or feudal obligation of the court to the Crown. There is simply no work for it here. In this area the citizen can claim no rights either to executive action or inaction, because the jurisdiction of the executive permits it to make such decisions as it deems best. In such matters, the executive is responsible to Parliament alone, and not to the citizen as aided by the court. The court cannot command the executive through injunction because there are no rights to be protected by this remedy. 2. Where questions are raised as to the authority of the executive to act, the courts have jurisdiction to examine that authority. Here the citizen may well have rights if unauthorized executive action affects him adversely . If the court finds that unauthorized acts are threatened by an official which, if committed by a private person, would amount to an interference with a citizen's rights, it may prevent such acts by injunction. This does not interfere with Parliament's control over the executive, because such acts were never lawfully delegated to the officer by Parliament. Sim- ilarly, if an officer refuses to perform an act which Parliament has required him to perform for the benefit of a particular person, the court may enforce the citizen's right to that performance. Here the court aids Parliament when it aids the citizen. This principle is subject to three qualifications : (a) Even where private rights are established, the court has a discretion in granting or refusing the remedy. If the defendant is a Crown officer, there are several factors which may weigh against granting an injunction. This is particularly true with respect to the grant of interim injunctions pending full trial and argument of the issues. (b) In England, and in the Canadian provinces where by statute the remedy of injunction against Crown officers appears to be barred, the courts are free to determine rights. But they should decline to issue injunctions even though the officer threatens unauthorized acts. Here the existence of rights is acknowledged, but this particular remedy is not available. (c) Where Crown title to or interest in property is questioned, the courts may feel constrained to insist that the Crown, and not merely its officer, be a party to the action. These conclusions are what the cases seem to mean, but it is not what they always say. It is hoped that the courts will abandon the numerous formalistic tests which they have applied, ignore ana- chronistic concepts of "the Crown", and concentrate on funda-

1964] Injunctions Against Crown Officers 45 mental principles. In an age of ever expanding government activity, such principles would greatly assist in drawing the delicate line between the recognition ofparliamentary supremacy and the protection of the citizen.