Judgments

[1994] 2 F.C. 3

T-306-93

Lieutenant (N) Andrew S. Liebmann, Canadian Forces (Reserve) (Plaintiff)

v.

Minister of National Defence and Chief of the Defence Staff (Defendants)

Indexed as: Liebmann v. Canada (Minister of National Defence) (T.D.)

Trial Division, Reed J.—Vancouver, September 8; Ottawa, October 8, 1993.

Crown — Practice — Parties — Motion to amend style of cause to replace Minister of National Defence and Chief of Defence Staff with Her Majesty the Queen or Attorney General of Canada — No requirement to initiate action solely against Crown or Attorney General — No provision prohibiting actions against Ministers or government officials in representative capacity — Person knowledgeable of matters at issue to be examined for discovery on behalf of defendants — Question as to who can appropriately be examined premature.

Constitutional law — Charter of Rights — Enforcement — Injunctive relief available against officers of Crown — Especially in constitutional cases where jurisdiction in courts, under Constitution Act, 1982, s. 24 to grant whatever remedies appropriate in circumstances.

Practice — Parties — Intervention — Motion to add League for Human Rights of B’nai Brith as plaintiff or intervenor in challenging constitutional validity of Armed Forces policy of denying members opportunity of participating in some peacekeeping operations because of cultural, religious or other sensitivities of peacekeeping partners or of host countries — League added as intervenor, not co-plaintiff, as private litigant could sustain action on own.

Practice — Parties — Standing — Open to plaintiff to seek anticipatory relief, to challenge constitutionality of provisions of governmental instrument or policy which could be applied to his detriment.

Practice — Pleadings — Motion to strike — For pleading evidence, not facts — Pleading of bit of evidence not of great moment if relevant, neither prejudicial nor hindering progress of litigation.

This litigation related to the alleged refusal to post the plaintiff to a position in the Middle East during the Gulf War because he was Jewish and the validity of certain policies of the Canadian Armed Forces which provide that some of its members may be denied the opportunity of participating in some peacekeeping operations because of the cultural, religious and other sensitivities of other parties to that operation or of host countries.

These were a series of applications of a procedural nature: whether the claim joined together two unrelated causes of action, one of which could not stand on the basis of the pleadings as they presently existed; whether portions of the pleadings should be struck as pleading evidence rather than facts; who was the proper defendant; whether the League for Human Rights of the B’nai Brith Canada (the League) should be added either as a plaintiff or as an intervenor.

Two Separate Causes of Action?

Plaintiff attacked both the denial, based on DCDS 9/83 then in force, of a posting to the Middle East, and the constitutional validity of policy CFAO 20-53, the continuation of and replacement for DCDS 9/83. There was no challenge to the plaintiff’s right to attack his denial. What was challenged (by means of a motion to strike the paragraphs of the statement of claim which related to the constitutional challenge to CFAO 20-53) was the plaintiff’s right to challenge the constitutional validity of CFAO 20-53 since it was not in force when the denial of a posting occurred and since there was an insufficient factual background to allow it.

Held, this motion should be dismissed.

It was open to the plaintiff to seek anticipatory relief, to challenge the constitutionality of the provisions of a governmental instrument or policy which can potentially be applied to his or her detriment.

Furthermore, at this stage, one assumes that the facts as pleaded are true. It was asserted that CFAO 20-53 was merely the successor to and a continuation of DCDS 9/83 and that the latter had been applied to the plaintiff. These factors provided a sufficient nexus to allow the constitutional challenge on the basis of the pleadings as they stand.

With respect to the alleged absence of the factual underpinning necessary to the constitutional challenge, the paragraphs of the statement of claim concerning that challenge should not be struck out at this stage, before discoveries have been held and before the plaintiff has had an opportunity to adduce evidence at trial.

Pleading Evidence Not Facts

The defendants moved that certain paragraphs of the statement of claim be struck out because they pleaded evidence, not facts.

Held, this motion should be dismissed.

The line between facts and evidence in a pleading was not distinct. The pleading of a bit of evidence was not of great moment if, as in the present case, the pleading was brief, the facts pleaded were relevant, they were not prejudicial to the conduct of the defence and their inclusion should promote rather than hinder from an expeditious proceeding.

Proper Defendants

The defendants moved, based on sections 17 and 48 of the Federal Court Act when read together with Rule 600 of the Federal Court Rules and subsection 23(1) of the Crown Liability and Proceedings Act, that the style of cause should be amended so as to replace the Minister of National Defence and the Chief of the Defence Staff with either Her Majesty the Queen or the Attorney General of Canada.

Held, this motion should be dismissed.

Those provisions should not be read as prohibiting actions against ministers or government officials in their representative capacity where such actions would previously have been possible. An historical review of some of the history of sections 17 and 48 of the Federal Court Act shows that the immunity of the Crown from being sued in tort or for breach of contract was gradually removed. Case law has established that where it is sought to declare a regulation made by a governmental authority other than the Government itself to be void, the action should be taken against the person vested with the power the limits of which are in question. The defendants expressed a concern that, if the Minister of National Defence and the Chief of the Defence Staff remain as the defendants, the plaintiff may seek to obtain discovery from each of them, while the government could put forward an officer of its choosing were Her Majesty or the Attorney General named as defendant. The Court was confident that the person designated for discovery on behalf of the defendants would be knowledgeable as to the matters at issue. If not, the Court could intervene to ensure that an appropriate person was examined.

In the present case, since the challenge was a constitutional one, the debate as to the appropriateness of granting injunctions against officers of the Crown when that injunction operates against them in their representative capacity only as opposed to against them in their personal capacity would be irrelevant since the Court had jurisdiction pursuant to section 24 of the Constitution Act, 1982 to grant whatever remedies were appropriate in the circumstances.

Upon a review of the case law on injunctions against the Crown and officers of the Crown, it appeared that there was no reason to strike the plaintiff’s action as against the present named defendants. There was no impediment, however, to adding Her Majesty the Queen as an additional defendant to the action.

League as Plaintiff or Intervenor

The League’s request to be added as co-plaintiff was based upon the Federal Court of Appeal judgment in Canadian Council of Churches v. Canada, a decision reversed upon appeal to the Supreme Court of Canada.

Held, the League was to be added as an intervenor since it could not on its own sustain an action in this case.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].

Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 24.

Crown Liability Act, R.S.C. 1970, c. C-38.

Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50 (as am. by S.C. 1990, c. 8, s. 21), s. 23 (as am. idem, s. 29).

Exchequer Court General Rules and Orders, Rule 88.

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 48, 64(1).

Federal Court Act, R.S.C., 1985, c. F-7, ss. 2, 17 (as am. by S.C. 1990, c. 8, s. 3), 48.

Federal Court Rules, C.R.C., c. 663, RR. 400, 408(1), 600(2),(4).

National Defence Act, R.S.C., 1985, c. N-5, ss. 3, 4 (as am. by R.S.C., 1985 (4th Supp.), c. 6, s. 10), 12(1), 18(2).

Petition of Right Act, R.S.C. 1970, c. P-12.

CASES JUDICIALLY CONSIDERED

APPLIED:

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; (1990), 73 D.L.R. (4th) 686; 43 C.P.C. (2d) 165; 112 N.R. 362; Mathias v. R., [1980] 2 F.C. 813; (1980), 2 C.N.L.R. 83 (T.D.); ABC Extrusion Co. v. Signtech Inc. (1987), 14 C.I.P.R. 108; 17 C.P.R. (3d) 365; 14 F.T.R. 309 (F.C.T.D.); Jones et Maheux v. Gamache, [1969] S.C.R. 119; (1968), 7 D.L.R. (3d) 316; Carlic v. The Queen and Minister of Manpower and Immigration (1967), 65 D.L.R. (2d) 633; 62 W.W.R. 229 (Man. C.A.); Juandoo v. Attorney General of Guyana, [1971] A.C. 972 (P.C.); Canadian Council of Churches v. Canada, [1992] 1 S.C.R. 236; (1992), 88 D.L.R. (4th) 193; 2 Admin. L.R. (2d) 229; 5 C.P.C. (3d) 20; 8 C.R.R. (2d) 145; 16 Imm. L.R. (2d) 161; 132 N.R. 241; revg [1990] 2 F.C. 534; (1990), 68 D.L.R. (4th) 197; 44 Admin. L.R. 56; 46 C.R.R. 290; 36 F.T.R. 80; 10 Imm. L.R. (2d) 81; 106 N.R. 61 (C.A.).

DISTINGUISHED:

MacKay v. Manitoba, [1989] 2 S.C.R. 357; [1989] 6 W.W.R. 351; (1989), 61 Man. R. (2d) 270; confg (1985), 24 D.L.R. (4th) 587; [1986] 2 W.W.R. 367; 39 Man. R. (2d) 274; 23 C.R.R. 8 (Man. C.A.); (as to status of intervention) B’Nai Brith Canada League for Human Rights v. Canada (Minister of National Defence) (1991), 4 C.R.R. (2d) 177; 44 F.T.R. 166 (F.C.T.D.).

CONSIDERED:

B’Nai Brith Canada League for Human Rights v. Canada (Minister of National Defence) (1991), 4 C.R.R. (2d) 177; 44 F.T.R. 166 (F.C.T.D.).

REFERRED TO:

Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; (1989), 59 D.L.R. (4th) 416; 26 C.C.E.L. 85; 89 CLLC 14,031; 93 N.R. 183; United States of America v. Cotroni; United States of America v. El Zein, [1989] 1 S.C.R. 1469; (1989), 23 Q.A.C. 182; 48 C.C.C. (3d) 193; 96 N.R. 321; R. v. Swain, [1991] 1 S.C.R. 933; (1991), 63 C.C.C. (3d) 481; 3 C.R.R. (2d) 1; 127 N.R. 7; 47 O.A.C. 81; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; (1991), 81 D.L.R. (4th) 545; 126 N.R. 161; 48 O.A.C. 241; Dyson v. Attorney-General, [1911] 1 K.B. 410 (C.A.).

AUTHORS CITED

de Smith, S. A. Judicial Review of Administrative Action, 4th ed. by J. M. Evans. London: Stevens & Sons Ltd., 1980.

Hogg, Peter W. Liability of the Crown, 2nd ed. Toronto: Carswell, 1989.

Holmested, G. S. Holmested and Watson: Ontario Civil Procedure, vol. 2. Toronto: Carswell, 1984.

Holmested and Gale on the Judicature Act of Ontario and Rules of Practice, annotated, vol. 2. Toronto: Carswell, 1993.

Hughes, Roger T. Federal Court of Canada Service, vol. 2. Toronto: Butterworths, 1970.

Sgayias, David, et al. Federal Court Practice 1993. Toronto: Carswell, 1992.

Sharpe, Robert J. Injunctions and Specific Performance. Toronto: Canada Law Book, 1983.

APPLICATIONS to determine whether the claim joins together two unrelated causes of action; whether portions of the pleading should be struck as pleading evidence rather than facts; who is the proper defendant; whether the League should be added as a plaintiff or as an intervenor. The defendants’ motions with respect to the first three matters should be dismissed. The League should be added as an intervenor.

COUNSEL:

Gerald S. Levey and Sam Hyman for plaintiff.

Barbara A. McIsaac and Capt. Roger Strum for defendants.

David Matas for the League for Human Rights of B’nai Brith Canada.

SOLICITORS:

Gerald S. Levey, Vancouver, for plaintiff.

Deputy Attorney General of Canada for defendants.

David Matas, Winnipeg, for the League for Human Rights of B’nai Brith Canada.

The following are the reasons for orders rendered in English by

Reed J.: A series of applications of a procedural nature were brought on together: whether the plaintiff’s action is properly framed as a statement of claim or more properly should have been brought as an application for judicial review; whether the claim joins together two unrelated causes of action, one of which cannot stand on the basis of the pleadings as they presently exist; whether portions of the pleadings should be struck because they plead evidence rather than facts; who is the proper defendant; whether the League for Human Rights of the B’nai Brith Canada (the League) should be added either as a plaintiff (as of right or with leave of the Court) or as an intervenor.

The issues to which this litigation relates are the alleged refusal to post Lieutenant Liebmann to a position in the Middle East during the Gulf War because he was Jewish and the validity of certain policies of the Canadian Armed Forces which provide that some of its members may be denied the opportunity of participating in some peacekeeping operations because of the cultural, religious and other sensitivities of other parties to that operation or of host countries.

Judicial Review or Statement of Claim

With respect to the suggestion that the present claim should have been framed as an application for judicial review rather than a statement of claim, this was essentially abandoned. Both the plaintiff and the defendants restricted their representations to the adequacy of the pleadings in the existing statement of claim.

Two Separate Causes of Action

With respect to the argument that the present pleadings encompass two independent causes of action, the defendants argue that Lieutenant Liebmann’s claim, based on the alleged denial of a posting to the Middle East, is separate and distinct from his constitutional challenge to the validity of policy CFAO 20-53 and that the combination of the two actions in one claim confuses and prejudices the conduct of the litigation. The denial of a posting to Lieutenant Liebmann occurred in January 1991. That posting would have been to an active service situation. CFAO 20-53 only became effective on March 29, 1991 and it relates to peacekeeping missions. The defendants therefore seek to strike out all paragraphs and portions thereof from the statement of claim which relate to the constitutional challenge to CFAO 20-53. It is argued that these are irrelevant to Lieutenant Liebmann’s particular situation.

Counsel for Lieutenant Liebmann argues that CFAO 20-53 applies to Lieutenant Liebmann as a member of the armed forces and can be used in the future to deny him posting opportunities. It is argued that Lieutenant Liebmann should have the right to challenge that policy now and not have to wait until it is actually applied to disadvantage him before he can contest its validity. One of the remedies sought in the statement of claim is an injunction preventing the application of the policy. The plaintiff also argues that CFAO 20-53 is merely a continuation of and replacement for DCDS 9/83 which was applied to Lieutenant Liebmann in January of 1991. Counsel for the defendants argues that DCDS 9/83 was not applied to Lieutenant Liebmann, or, if it was applied, it was wrongly applied since that policy applies to peacekeeping, not active service situations.

Counsel for the League noted that on December 28, 1989, the League instituted proceedings in this Court to challenge the constitutional validity of DCDS 9/83. That proceeding was commenced by way of motion. The present defendant (the Minister of National Defence) moved to strike out the application because the proceedings had been brought by way of motion rather than by statement of claim. At the time, it was necessary to proceed by way of statement of claim when seeking a declaration in this Court. The Federal Court Rules [C.R.C., c. 663] have since been amended.

The defendant’s motion to strike the League’s application was successful. See B’Nai Brith Canada Leage for Human Rights v. Canada (Minister of National Defence) (1991), 4 C.R.R. (2d) 177 (F.C.T.D.). In rendering the decision that that proceeding must be commenced by statement of claim, Mr. Justice Muldoon wrote [at pages 181-182]:

The applicant, a body corporate, is evidently not seeking extraordinary relief for itself, and so, in essence that which it seeks must be in the nature of a declaration, that is judicial declaratory relief. No individual member of the Canadian Forces, who and whose mission would be at risk in a distant land, comes forward to join the applicant in this originating motion. In such circumstances, it is apparent that the applicant, having no personal interest, but only a kind of representational interest, and self-appointed too, would want an order in that nature of a judicial declaration.

…

Here, what amounts to seeking declarations for and about members of the Canadian Forces, is instituted as Federal Court Act s.18 applications in regard to departmental policy said to be directed to safeguard certain members of the forces and certain peacekeeping missions of the forces from undue jeopardy, both personal and operational. Since the applicant has no directly or immediately personal or corporate interest it, like the Council of Churches, must be seen to be asserting the status of a public interest litigant.

He accordingly struck out the applicant’s motion but at the same time granted leave to the League to commence an action by way of statement of claim.

Given this history, counsel for the League takes exception to the defendants’ present argument that a constitutional challenge to CFAO 20-53 cannot be supported by the present pleadings. He argues that that policy is merely a continuation of DCDS 9/83 which the League has been given leave, by Mr. Justice Muldoon, to challenge. He argues, in addition, that if the defendants’ motion were to succeed, the effect would be to immunize the policy from constitutional challenge by Lieutenant Liebmann.

What is more, counsel for the League states that the present action is even stronger than would have been the case had an action been brought by the League alone since there is now a member of the armed forces directly involved as plaintiff. Mr. Justice Muldoon indicated [at page 183] that the League’s status as a public interest litigant would be enhanced “if someone, a member of the Canadian Forces, whose personal safety would putatively be in jeopardy, would be the applicant.” With respect to the particular proceeding which had been brought by the League and which was before Mr. Justice Muldoon, he stated [at page 184]:

Indeed, the Court’s discretion [to strike out the application] might have been otherwise exercised if the applicants here had been a woman, a Jew and a Muslim, all members of the Canadian Forces who were otherwise eligible for peacekeeping posting, but diverted from it on the asserted grounds. Indeed, even if not so diverted, such members of the Forces, who could merely possibly be facing the alleged special jeopardy from which their commanders would safeguard them, would make a far more compelling application.

Counsel for the defendants’ argument that an insufficient factual background exists to allow a challenge to CFAO 20-53 is based in part on the decisions in: Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at page 1078; United States of America v. Cotroni; United Stated of America v. El Zein, [1989] 1 S.C.R. 1469, at pages 1497-1498; R. v. Swain, [1991] 1 S.C.R. 933, at pages 1010-1011; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, at pages 310-311; Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; and MacKay v. Manitoba, [1989] 2 S.C.R. 357.

As I understand the Slaight, Cotroni, Swain and Lavigne cases, the Supreme Court has held that when the text of a legislative instrument (including subordinate legislative instruments) clearly authorizes action which infringes a Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] right, then, the Court can declare that instrument unconstitutional. When a legislative text is however constitutionally neutral (confers an imprecise delegation of discretion), one must look to the way in which the authority granted by that instrument has been used. Counsel argues that in this case, since there is no factual situation pleaded with respect to the application of CFAO 20-53, that policy cannot be challenged on the basis of the present pleadings.

I accept counsel for the League’s argument that if I were to accede to counsel for the defendants’ request, I would in fact be making a decision that the legislative text of CFAO 20-53 is constitutionally neutral and that this is an issue more appropriately decided by the Trial Judge after hearing argument and all of the evidence.

I think it is open to a plaintiff to seek anticipatory relief, to challenge the constitutionality of the provisions of a governmental instrument or policy which can potentially be applied to his or her detriment. Lieutenant Liebmann, as a member of the armed forces, can be adversely affected in the future by the policy. He should not have to wait until it is actually applied to his detriment in order to challenge it. In addition, at this stage of the proceedings one assumes that the facts as pleaded in the statement of claim are true. It is asserted that CFAO 20-53 is merely the successor to and a continuation of DCDS 9/83 and that DCDS 9/83 was applied to Lieutenant Liebmann. In my view, these factors provide a sufficient nexus to allow the constitutional validity of CFAO 20-53 to be challenged in these proceedings on the basis of the pleadings as they stand.

In so far as the propriety of Lieutenant Liebmann challenging CFAO 20-53 is concerned, in my view the Danson decision supports the conclusion that this is appropriate. In that case, the issue before the Court, as described in the headnote [at page 1087], was “can this application be heard without reference to any factual situation and without any affidavit evidence.” [Underlining added.] The application had been brought by way of motion so that evidence would normally be presented through affidavits. The Court held that the application could not proceed without reference to at least some adjudicative or legislative facts. At the same time, it noted that since the challenge to the application had been brought, the applicant had obtained affidavit evidence containing such facts, for example, opinions concerning the manner in which the new rules regarding costs allegedly would undermine the independence of the bar and evidence of specific instances in which particular counsel had been threatened with the invocation of the impugned rules. This material was not considered for the purposes of the appeal because it had been filed after the appeal was launched. The Court noted however, at page 1102:

We have discovered by a roundabout route that the appellant is in possession of the facts he need to bring his challenge, by way of application, to a conclusion on the merits if he so chooses …. It is not necessary that the appellant prove that the impugned rules were applied against him personally (standing not being an issue); but he must present admissible evidence that the effects of the impugned rules violate provisions of the Charter. [Underlining added.]

The MacKay case dealt with a proceeding in which no evidence was submitted to support the claim. Nevertheless, the Trial Court heard the application since the respondent had consented to having that application heard. It is clear that the decision that no constitutional infringement had occurred was made at all levels in the absence of a factual underpinning for that claim. If such factual underpinning had existed perhaps the finding would have been different. Thus, the Supreme Court made it clear, when dismissing the appeal from the Manitoba Court of Appeal [(1985), 39 Man. R. (2d) 274], that no real adjudication of the constitutional issue had taken place. Mr. Justice Cory, at page 363, stated “there has been not one particle of evidence put before the Court” and, at page 366:

A factual foundation is of fundamental importance on this appeal. It is not the purpose of the legislation which is said to infringe the Charter but its effects. If the deleterious effects are not established there can be no Charter violation and no case has been made out. Thus the absence of a factual base is not just a technicality that could be overlooked, but rather it is a flaw that is fatal to the appellants’ position.

…

The appellants also argued an issue that does not require a factual foundation. It was said that the statutory funding of candidates could, whenever a losing candidate or candidates received 10 per cent of the vote, force a taxpayer to support a candidate whose views are fundamentally opposed to that of the taxpayer. This enforced support of a contrary view was said to infringe the taxpayer’s right to freedom of expression. I cannot accept that contention.

In the MacKay case, the plaintiff by not bringing forth appropriate evidence failed to prove his case. It is clear that if the plaintiff in this case cannot establish a sufficient factual basis for his challenge to the CFAO 20-53 then that challenge is not likely to succeed. I am not convinced, however, that I should strike out the various paragraphs of the statement of claim which put the validity of that policy in issue, at this stage, before discoveries have been held, before the plaintiff has had an opportunity to adduce evidence at trial.

Accordingly, I am not prepared to grant the request that the paragraphs of the statement of claim which relate to the constitutional challenge to CFAO 20-53 be struck out because they are irrelevant.

Pleading Evidence Not Facts

I turn then to the request that certain paragraphs of the statement of claim be struck out because they plead evidence, not facts. The paragraphs in issue are 14, 15, 16 and parts of paragraphs 21 and 22. Paragraphs 14, 15 and 16 state:

14. On receipt of this message MARCOM did, on January 21st, 1991, forward to National Defence Headquarters a message MP 1023 211600Z January 91 supporting the nomination and the recommendation of the Plaintiff for the Posting referred to in Paragraph 13. This message was also sent to COND for his information.

15. On January 22, 1991 MARCOM sent a message to “Discovery” for the Plaintiff—PERS TASK 1953 222152Z January 91—with an inquiry about the Plaintiff’s Battle Casualty Replacement Status. The Plaintiff again advised C.O. “Discovery” that he was available on very short notice.

16. On January 24, 1991 COND, by message DC00443 241307Z January 91 addressed to MARCOM, did concur with the nomination of the Plaintiff for posting referred to in Paragraph 13.

Counsel for the defendants argues that all that need be pleaded is that Lieutenant Liebmann was nominated and recommended for the posting in question and that it is not necessary to set out the details which are contained in paragraphs 14, 15 and 16. Counsel for the plaintiff argues that if the pleading had been as general as suggested, the defendants would have been entitled to bring a motion for particulars. He states that he merely pleaded the facts with particularity.

The line between pleading facts and pleading evidence is not a distinct one. I can see no prejudice to the defendants, arising in this case, as a result of the plaintiff setting out the facts on which he relies in the terms and with the specificity noted above. I do not see that this makes the drafting of a defence more complex or difficult. Indeed, it may have obviated the procedural step of seeking particulars.

Paragraphs 21 and 22 state:

21. The then Associate Minister of National Defence has stated that the National Defence Headquarters and COMCANFORME had considered the Plaintiff’s religion and ethnic origin and that the “potential problem” of a Jewish Officer was discussed “philosophically.” the Plaintiff says that his posting was withdrawn after consideration of, and because of, his religion and ethnic origin.

22. The Plaintiff has, in accordance with Section 29 of the National Defence Act R.S.C. 1985, Chapter N-5 asked for a “Redress of Grievance” on the grounds that he has been treated unfairly and unlawfully. In the process of the Redress of Grievance, the Defendant Chief of the Defence Staff and COMARCOM have stated as a fact that the policy considerations referred to in Paragraph 10 herein and CFAO 20/53 were applied by the Canadian Forces and that the Plaintiff’s religion and ethnic origin created concern for “his personal safety and his operational effectiveness”. This concern for “personal safety and operational effectiveness” was not applied to the posting of any other members of the Canadian Forces to the Persian Gulf theatre of operations. The Plaintiff was treated differently from other persons in the Canadian Forces, contrary to s. 15 of the Charter of Rights and Freedoms. The Associate Minister of National Defence and the Chief of the Defence staff have admitted the discriminatory practice employed against the Plaintiff by tendering written apologies.

The defendants seek to strike all those portions of the paragraphs except the parts in italics. The first sentence of paragraph 21 relates to the text of a communication received by the plaintiff. Much of the challenged portions of paragraph 22 are clearly pleadings of fact, e.g., the application for and disposition of the redress of grievance. The portion, that the defendants say should be left in, is arguably a conclusion from the facts and a conclusion of law which, it is my understanding, should be pleaded together with their supporting facts. In any event, as has already been noted, the dividing line between material facts and evidentiary facts is not a sharp one. Also, I think it is good law that when doubt exists as to whether a statement is one of material fact or evidentiary fact, the statement should be left in the pleading. In Mathias v. R., [1980] 2 F.C. 813, at page 816, Mr. Justice Walsh stated:

The jurisprudence is well established that if there is any doubt, the paragraphs in the pleadings should be left in so that evidence establishing them may be brought before the Trial Judge. This does not mean, however, that redundant or immaterial paragraphs outlining the evidence on which the party seeks to rely should be permitted to remain in the pleadings, provided always that the party as a result of striking out part of the proceedings is not prevented thereby from making full proof of any pertinent facts.

Mathias was followed in ABC Extrusion Co. v. Signtech Inc. (1987), 14 C.I.P.R. 108 (F.C.T.D.). In that case, Giles A.S.P. held, at page 110 that:

To strike a paragraph from a pleading as being a mere recitation of evidence, it is necessary to show that the paragraph is redundant or immaterial. The paragraph would be redundant if the allegation made therein is repeated with sufficient particularity elsewhere in the pleading.

My review of the authorities indicates that a pleading will be defective if the required material facts are not pleaded but merely irregular if redundant or immaterial facts or evidence are pleaded.^1[1] Indeed, most of the reported cases are situations in which the absence of material facts is complained about, not where pleadings are sought to be struck for containing evidentiary facts.

It is interesting to note that the Exchequer Court General Rules and Orders, Rule 88 provided:

Every pleading shall contain as concisely as may be a statement of the material facts on which the party relies, but not the evidence. [Underlining added.]

The present Federal Court Rule 408(1), however, merely states:

Rule 408. (1) Every pleading must contain a precise statement of the material facts on which the party pleading relies.

I do not mean to suggest that any fundamental change in the applicable rules of pleading was intended when the change in the Rule was made but I think the phrasing of the Rule reflects the fact that, in general, the pleading of a bit of evidence in a statement of claim or defence is not terribly important providing the pleading is relevant, is not prejudicial and does not make the pleading unduly prolix.

It is useful to quote the commentary on Rule 143 of the Ontario Rules of Practice found in Holmested and Gale, Ontario Judicature Act and Rules of Practice, volume 2, at pages 1232-1232.1:

8.2 Elasticity of the rule. A pleading should not contain “allegations which amount to a pleading of evidence and not [material] facts”: Watson v. Rodwell (1876) 46 L.J. Ch. 744 at 746. But “under our present system the rules of pleading are elastic…. Experienced pleaders often break the letter of the rules for the sake of clearness and brevity”: Bullen & Leake, 7th ed., p. 906, quoted in Le Merchant v. Irish & Maulson Ltd., supra, at p. 507. See also Reliable Toy Co. v. Lido (Can.) Reg’d. (1962) 24 Fox Pat. C. 86 (Ont.). As examples of cases in which courts appear to have been lenient towards the pleading of evidence, see Tomkinson v. S.-E. Ry. (1887) 57 L.T. 358 (where the court allowed facts to be pleaded to show that a particular Act was not ultra vires); Stratford Gas Co. v. Gordon (1892) 14 P.R. 407 (where facts showing a malicious course of conduct by the plaintiffs towards the defendant were allowed as “affording reasons for the probability of the truth of this defence”). In some decisions language has been used wide enough to suggest that the distinction required by the rule between evidentiary facts and propositions of fact may be ignored. Thus in Mullington v. Loring (1880) 6 Q.B.D. 190 at 194, Lord Selborne L.C. said that “material fact … must be taken to include any facts which the party pleading is entitled to prove at the trial.” But this was said with reference to the question whether facts in aggravation of damages may be pleaded.

The pleadings in question in this case are brief; the facts pleaded are relevant to the issue between the parties; they are not prejudicial to the conduct of the defence; their inclusion should expedite rather than detract from an expeditious proceeding. Even if some parts of the challenged paragraphs might fall on the side of evidentiary as opposed to material fact, I am not prepared to strike them out.

Proper Defendants

I turn then to the defendants’ motion that the style of cause should be amended so as to replace the Minister of National Defence and the Chief of the Defence Staff with either Her Majesty the Queen or the Attorney General of Canada.

As I understand the defendants’ argument, it is that section 17 [as am. by S.C. 1990, c. 8, s. 3] and section 48 of the Federal Court Act [R.S.C., 1985, c. F-7] when read together with Rule 600 of the Federal Court Rules require that the plaintiff’s action be brought against Her Majesty the Queen or, alternatively, pursuant to subsection 23(1) of the Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50 as amended by S.C. 1990, c. 8 [ss. 21, 29], against the Attorney General of Canada.

Section 17 of the Federal Court Act describes the jurisdiction of the Federal Court, Trial Division, in cases where relief is claimed against the Crown. Subsection (1) states that unless otherwise provided the Federal Court, Trial Division has jurisdiction in all cases where relief is claimed against the Crown. Subsection (2) lists categories of claims which fall within subsection (1).[2]

Subsection 17(5) states:

17. …

(5) The Trial Division has concurrent original jurisdiction

(a) in proceedings of a civil nature in which the Crown or the Attorney General of Canada claims relief; and

(b) in proceedings in which relief is sought against any person for anything done or omitted to be done in the performance of the duties of that person as an officer, servant or agent of the Crown. [Underlining added.]

Section 48 of the Federal Court Act describes a procedure for instituting proceedings against the Crown including the payment of the required filing fee and service on the Crown by filing the required document with the Court. Subsection 48(1) states:

48. (1) A proceeding against the Crown shall be instituted by filing in the Registry of the Court the original and two copies of a document that may be in the form set out in the schedule and by payment of the sum of two dollars as a filing fee. [Underlining added.]

In the form set out in the schedule to the Act “Her Majesty the Queen” is named as the defendant. I should also note that the definitions set out in section 2 of the Federal Court Act provide that for the purposes of the Act “Crown” means Her Majesty in right of Canada.

Subsections (2) and (4) of Rule 600 of the Federal Court Rules state:

Rule 600….

(2) Except where otherwise specially authorized, an action against the Crown shall be commenced in the manner provided by section 48 of the Act.

…

(4) In the case of an action for a declaration or otherwise against the Attorney General of Canada or other Minister of the Crown, Rule 400 applies. [Underlining added.]

Rule 400 states:

Rule 400. Unless otherwise provided every action shall be commenced by filing an originating document, which may be called a statement of claim or a declaration. (Form 11)

It is interesting to quote as well the commentary on Rule 600 which is found in Federal Court of Canada Service, vol. 2 (Butterworths):

The Federal Court has exclusive jurisdiction in respect of many kinds of actions brought by or against the Federal Government, that is, Her Majesty the Queen in Right of Canada, her Ministers of the Crown, and others. By far the majority of proceedings before the Federal Court are those brought by or against the Federal Crown.

Rule 600(1) makes it clear ….

Proceedings brought against the Crown are governed by section 48 of the Federal Court Act and reference to the cases annotated under that section should be made. It is correct to name “Her Majesty the Queen” as defendant, although often the appropriate Minister or Board is named, not personally but in their official capacity, e.g. “Minister of Agriculture”. These proceedings are served by the Registry in accordance with the provisions of section 48(4), but the Registry will normally only do so if the defendant is named as “Her Majesty the Queen”, otherwise the plaintiff has to serve the Minister or other named party in accordance with Rule 309….

I turn then to the Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50 as amended. Section 23 provides:

23. (1) Proceedings against the Crown may be taken in the name of the Attorney General of Canada or, in the case of an agency of the Crown against which proceedings are by an Act of Parliament authorized to be taken in the name of the agency, in the name of that agency.

(2) Where proceedings are taken against the Crown, the document originating the proceedings shall be served on the Crown by serving it on the Deputy Attorney General of Canada or the chief executive officer of the agency in whose name the proceedings are taken, as the case may be. [Underlining added.]

Prior to the amendment to this Act, on February 1, 1992, the part of the Act in which the above-quoted provisions are found applied only to litigation in the provincial courts. The provisions are no longer so limited. At the same time no argument can be made that the new provisions are intended to supplant the provisions of the Federal Court Act since that Act was amended at the same time as the Crown Liability and Proceedings Act, R.S.C., 1985 c. C-50 and subsection 48(1) was not changed.

I note that the provisions of both the Federal Court Act (subsection 48(1)) and the Crown Liability and Proceedings Act (subsection 23(1)) state that the Crown may be sued in the form indicated. There is no requirement in either legislative provision which states that those forms are the only ways in which the Crown or an emanation thereof may be sued. I do not read the provisions as prohibiting actions against, for example, ministers or government officials in their representative capacity where such actions would previously have been possible.

Counsel for the plaintiff relies upon the decision in Jones et Maheux v. Gamache, [1969] S.C.R. 119 and states that the plaintiff is not challenging the validity of the National Defence Act or any regulation promulgated by the Governor in Council. Rather, the plaintiff challenges a policy directive issued by the Chief of the Defence Staff and decisions taken pursuant to that policy, a policy for which he argues the Minister of National Defence is responsible.[3] Counsel argues that if the constitutional challenge was against the statute or against a regulation issued by the Governor in Council then it would be appropriate to name either Her Majesty the Queen, or the Attorney General of Canada as the defendant. He argues however that since the challenge is not directed against those types of instruments and because an injunction is sought against the Chief of the Defence Staff and other officials, who are responsible to the Minister of Defence and who might apply the policy, the presently named defendants are appropriate.

It is important first to describe the provenance of the policy instruments in question. The National Defence Act, R.S.C., 1985, c. N-5, subsection 12(1) authorizes the making of regulations for the organization, training, discipline and administration of the Canadian armed forces. Pursuant to that subsection, the Queen’s Regulations and Orders (QR&O) are issued by the Governor in Council.

Article 1.23 of The Queen’s Regulations and Orders for the Canadian Forces (1968 Revision) states:

1.23 …

(1) … the Chief of Defence Staff may issue orders and instructions not inconsistent with the National Defence Act or with any regulations made by the Governor in Council, the Treasury Board or the Minister:

(a) in the discharge of his duties under the National Defence Act; or

(b) in explanation or implementation of regulations.

It is pursuant to this authority that the CFAOs and the DCDSs are issued.

I should also note that subsection 18(2) of the National Defence Act, provides:

18. …

(2) Unless the Governor in Council otherwise directs, all orders and instructions to the Canadian Forces that are required to give effect to the decisions and to carry out the directions of the Government of Canada or the Minister shall be issued by or through the Chief of The Defence Staff.

As I have already noted, sections 17 and 48 of the Federal Court Act do not state that all actions must be brought solely against either Her Majesty the Queen or the Attorney General of Canada. The texts are permissive in this regard. What is more, subsection 17(5) specifically allows for proceedings in which relief is sought against any person for anything done in the performance of the duties of that person as an officer, servant or agent of the Crown. It is important to underline that in the present case, the present defendants are not being sued in their personal capacities. If they were, it is unlikely that this Court would have jurisdiction over the action. The present defendants are being sued in their representative capacities only, as officers, servants or agents of the Crown. The relief sought against them relates only to actions they might take in the performance of those duties.

It is useful to review some of the history of sections 17 and 48 of the Federal Court Act. It is well known that until the middle of this century, an individual could not sue the Crown in either tort or for breach of contract in the same way that other legal persons could be sued. A procedure by way of petition of right, in which the permission of the Crown was sought to commence legal proceedings, was available in cases of contract and with respect to the federal government, in the cases of some torts. See Petition of Right Act, R.S.C. 1970, c. P-12 and its predecessors. The history of the development of proceedings against the Crown can be found in P. W. Hogg, Liability of the Crown, 2nd ed. (1989, Carswell). When section 48 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10] was enacted, the Petition of Right Act was repealed, R.S.C. 1970 (2nd Supp.), c. 10, subsection 64(1) and provisions were added to the Crown Liability Act [R.S.C. 1970, c. C-38] which placed the Crown, in so far as tort and contract are concerned, in approximately the same position as a private individual.

While the Crown could not be sued directly in tort or contract, a procedure had long existed whereby declarations could be obtained in the courts of equity by an action brought against the Attorney General. This is sometimes referred to as the “Dyson procedure”. In Hogg (supra), the following explanations of the usefulness of declaratory proceedings against the Crown and the effect of the demise of the procedure of the petition of right is found at pages 18-20:

A declaration is a judgment that declares the law applicable to the parties but does not include any coercive order. Breach of a declaration is not a contempt of court and does not attract any other penalty. This deficiency in the remedy is sometimes cured by accompanying a declaration with coercive relief such as damages or an injunction or specific performance, but this is not necessary. The court has the power to make a declaration “whether or not any consequential relief is or could be claimed”.

Ironically, the absence of coercive relief has made the declaration an exceedingly useful public law remedy, because the plaintiff need not make out a “cause of action” in the traditional sense of facts that would entitle the plaintiff to coercive relief. Thus, the declaration is commonly used as a remedy for unlawful administrative action and for unconstitutional statutes.

…

Dyson procedure

In addition to the petition of right procedure, a declaration against the Crown could be obtained by an ordinary action against the Attorney General. This means of obtaining a declaration against the Crown was upheld in Dyson v. Attorney General (1910), in which the English Court of Appeal made a declaration that a tax notice that had been sent to the plaintiff (and eight million others) was unauthorized by statute. The defendant in Dyson was the Attorney General, not the Crown itself. This method of obtaining a declaration against the Crown was available in Canada, Australia and New Zealand as well.

The Dyson procedure enjoyed a great advantage over the petition of right in that no royal fiat was needed to institute an action against the Attorney General. Now that the petition of right and the requirement of the fiat have been abolished in all jurisdictions by the Crown proceedings statutes, there is no longer any advantage in the Dyson procedure. The usual way of seeking a declaration is the procedure sanctioned by the Crown proceedings statutes of bringing an action against the Crown. However, while the Crown proceedings statute of each jurisdiction abolishes the petition of right, in many jurisdictions the statute does not expressly preclude other modes of suing the Crown.¹⁴ It follows in those jurisdictions that the Dyson procedure survives, and a declaration can still be obtained against the Crown in an action in which the Attorney General is named as the defendant.

¹⁴    In Canada, only N.B., s. 21 and N.S., s. 24, expressly abolish other proceedings against the Crown. However, in Re MacNeil v. N.S. Bd of Censors (1974), 53 D.L.R. (3d) 259 (N.S.A.D.), it was held that the Dyson procedure survived s. 24 of the Nova Scotia Act on the basis that the action against the Attorney General for a declaration was not a proceeding against the Crown within the meaning of the Act. Query correctness of this ruling, since the Attorney General is only a nominal defendant in such a proceeding. The case went on appeal to the Supreme Court of Canada, which affirmed the N.S.A.D.: N.S. Bd. of Censors v. MacNeil [1976] 2 S.C.R. 265. However, the Supreme Court of Canada made no mention of s. 24, discussing only the issue of standing, which it described (at p. 267) as “the only [preliminary objection] meriting consideration by this Court”. [Most footnotes omitted.]

The Dyson [Dyson v. Attorney-General, [1911] 1 K.B. 410 (C.A.)] decision was relied upon in Jones et Maheux v. Gamache, the decision on which the plaintiff relies in this case. The secondary style of cause in that case was Gamache v. Ministre des Transports and the relevant issue under consideration was whether the Minister of Transport was a proper defendant. I will quote from the headnote for the finding in that case because I think it is an accurate summary [at page 316, D.L.R.]:

Where it is sought to declare a Regulation made by a governmental authority other than the Government itself to be void the action should be taken against the person vested with the power the limits of which are in question.

I understand the concern of the defendants in this case to be that since the rules allow for the discovery of parties, if the Minister of Defence and the Chief of the Defence Staff remain as the defendants, the plaintiff may seek to obtain discovery from each of them. If on the other hand, the respondent is Her Majesty the Queen or the Attorney General then the government may put forward an officer of its choosing for discovery. In addition, the present Minister of Defence was not the Minister of Defence in 1991 nor was the present Chief of the Defence Staff the incumbent of that position in 1991. With respect to the appropriate individual to be named for examination on discovery, I quote again from Hogg (supra), at pages 31-32:

Outside Australia, the Crown’s immunity persisted until the wave of reform that started with the United Kingdom’s Crown Proceedings Act 1947. This Act, among its many other reforms, abolished the Crown’s immunity from discovery by providing that, in civil proceedings to which the Crown was a party, the Crown could be required to make discovery of documents, to produce documents for inspection, and to answer interrogatories. New Zealand enacted a similar provision in 1950.

In Canada, the United Kingdom Act became the basis for the Uniform Model Act of 1950, which in turn became the basis for provincial Crown proceedings statutes. Each province has now subjected the Crown to discovery. So has the federal Parliament.

Designation of Crown representative

With respect to examination for discovery against the Crown, provision had to be made to identify the person who was to answer written interrogatories or who was to attend to be examined orally. The Uniform Model Act, by s. 11, simply provided that the rules of procedure regarding discovery “apply in the same manner as if the Crown were a corporation”. This supplied a ready-made solution to the problem of identifying the representative who was to attend to be examined for discovery. In each Canadian province, the rules permit a party seeking discovery from a corporation to designate the person who shall attend as representative of the corporation; the corporation has the right to apply for an order of substitution if the corporation considers that an inappropriate person has been designated.

Seven Canadian provinces have adopted the Uniform Model Act’s provision and have assimilated the Crown to a corporation for discovery purposes. Manitoba reverses this model by providing that the Crown (the Attorney General) is to designate the official who is to be examined; however, the court has the power to designate a different official. The rules applicable to proceedings against the federal Crown are essentially the same as Manitoba’s. Ontario’s Act provides that the Deputy Attorney General is to designate the person who shall attend to be examined for discovery; and there is no power in the court to substitute a different person. The Ontario rule encourages plaintiffs to bring proceedings against individual Crown servants as well as the Crown. If an individual Crown servant is one of the defendants, the plaintiff is entitled to examine him or her. [Underlining added; footnotes omitted.]

One assumes, indeed, more than assumes, is confident that if the Attorney General were to designate an individual to be examined for discovery, a person knowledgeable in the matters in issue would be chosen. If this did not prove to be the case, which I think is highly unlikely, the Court could intervene to ensure that an appropriate person was examined. I am not convinced that the defendants’ concerns respecting discovery are significant. In so far as examining Ministers for discovery is concerned, there is considerable jurisprudence which establishes that although ultimately responsible for the actions taken by persons reporting to them, Ministers are often not the most knowledgeable about the particular facts in issue and are often not appropriate individuals for discovery purposes. As has already been noted, counsel for the plaintiff has made it abundantly clear that the Minister of Defence and the Chief of the Defence Staff are not being sued in their personal capacity. I am not persuaded that I should take into account, at this stage, questions concerning who can appropriately be examined for discovery. This can be decided later if it becomes a real issue between the parties.

Lastly, with respect to counsel for the plaintiff’s argument that the present defendants are appropriate defendants because part of the remedy sought is an injunction to prevent those defendants implementing, or authorizing the implementation of the policy which it is sought to challenge, I find it useful to quote from Sharpe, Injunctions and Specific Performance (1983), at pages 168-169:

It is generally accepted that at common law an injunction cannot issue against the Crown itself. Several reasons have been given for the inappropriateness of injunctive relief against the Crown. It has been said that as the court is an emanation of the Crown, it would be incongruous for the court to purport to control the Crown and that no means could be found to enforce such an injunction. However, in one Canadian case, the Manitoba Court of Appeal departed from this doctrine and upheld an interlocutory injunction to restrain the Crown and a Minister from executing a deportation order. The court held that as the Crown was not the main defendant, enforceability of the order could be assured by proceedings against the other defendants. In fact, it matters little whether the Crown itself may be properly enjoined. The Crown is an abstraction and works through individuals, and if those individuals can be controlled through injunctions, the Crown is thereby controlled.

There is debate as to whether an injunction may issue against a Crown servant but despite this uncertainty, it is suggested that the Canadian cases support the award of injunctions against Ministers or servants of the Crown where their course of conduct cannot be justified in law. The basic principle which emerges is that an injunction will be granted to restrain a Crown servant from exceeding the lawful limits of authority or from acting without any authority where the acts complained of constitute a violation of the plaintiff’s right. [Footnotes omitted.]

The Manitoba case, to which reference is made, is Carlic v. The Queen and Minister of Manpower and Immigration (1967), 65 D.L.R. (2d) 633 (Man. C.A.). Apparently it was argued that the proceedings in that case were defective because they purported to be against both Her Majesty the Queen and the Minister of Citizenship and Immigration. The Court held, at pages 637-639:

It may be well to point out that Courts have more than once affirmed their right to restrain a Minister of the Crown from the doing of acts which were either illegal or beyond statutory power. Thus in C.P.R. Co. et al. v. A.-G. Sask. [1951] 3 D.L.R. 362, 1 W.W.R. (N.S.) 193, Thomson, J., had to deal with a motion made by the defendants to the effect that the relief claimed against the Crown could be obtained only on petition of right, and that the defendants, the Attorney-General of Saskatchewan and the Minister of Natural Resources, were servants or agents of the Crown and were improperly joined as defendants in that action. Thomson, J., denied the motion. He held that the Court could entertain an action to determine whether the threatened acts were ultra vires or illegal, and, if that were established, could restrain the taking of such steps or proceedings. He held therefore that both the Attorney-General of Saskatchewan and the Minister of Natural Resources had been properly joined as defendants in the action.

In due course that case reached the Supreme Court of Canada (vide C.P.R. et al. v. A.-G. Sask., [1952] 4 D.L.R. 11, 69 C.R.T.C. 1, [1952] 2 S.C.R. 231) being argued, however, on other points. The only reference to the procedural matter is found in the judgment of Kerwin, J. (as he then was), speaking for himself and Taschereau, Cartwright and Fauteux, JJ., when he said at pp. 20-1:

The trial Judge and the Court of Appeal [[1951] 4 D.L.R. 21, 68 C.R.T.C. 232, 2 W.W.R. (N.S.) 424] dealt with several other matters raised by the parties who, however, have now abandoned their contentions with respect thereto…. [The] respondents abandoned their claim that the action was not properly brought against the Attorney-General and the Minister of Natural Resources and Industrial Development.

…

In applying the principles above mentioned I think it well to remind ourselves that the controversy here, as in Gooliah, is fundamentally one between State and individual, between Crown and subject. In more specific terms it is dispute between the Department of Manpower and Immigration and the plaintiff. Whether that Department is represented by Her Majesty the Queen or by the Minister of Manpower and Immigration or by any other named defendant seems to me less important than that the issues be placed before the Court by the plaintiff on the one hand and by someone able to speak responsibly for the Department on the other. It was in that sense that I regarded the objections made by the Crown in the Gooliah case as technical in character. In the same way I regard the subject of the present motion as technical also.

Interestingly, this decision by the Manitoba Court of Appeal was commented upon with approval in Juandoo v. Attorney General of Guyana, [1971] A.C. 972 (P.C.). I do not propose to recount the facts of that case. They relate to the particular procedural rules there in issue. It is sufficient to quote a passage from that judgment, at pages 984-985:

The question is whether an injunction was a remedy which the court had jurisdiction to grant against “the Government of Guyana,” which is the only entity against whom the injunction was sought. This expression connotes the person or, if there is more than one, those persons collectively, in whom the executive authority of the sovereign democratic state of Guyana is vested under the Constitution….

At the relevant time, the executive authority of Guyana was vested in Her Majesty and exercised by the Governor-General on her behalf under article 33 of the Constitution. At the time of the hearing of the motion in the High Court an injunction against the Government of Guyana would thus have been an injunction against the Crown. This a court in Her Majesty’s Dominions had no jurisdiction to grant. The reason for this in constitutional theory is that the court exercises its judicial authority on behalf of the Crown. Accordingly any orders of the court are themselves made on behalf of the Crown and it is incongruous that the Crown should give orders to itself.

Where the coercive order takes the form of an injunction, there is an additional objection to its being granted against an entity described as “the Government of Guyana.” If at the time of the hearing of the motion this meant more than Her Majesty in whom the executive authority of Guyana was then vested and in whose service all public officers were engaged, it failed to identify the persons intended to be bound by the order. This an injunction must always do. In the instant case, the order sought was one restraining “the Government of Guyana from commencing or continuing road building operations either by themselves or by persons employed by them” upon the land. How far down the official hierarchy of public service or up it to Her Majesty does an injunction in these terms extend? If road construction operations were commenced or continued despite the injunction, would everyone from the Cabinet downwards who could have given instructions that the operations should not be carried out be liable to committal or attachment for breach?

…

A form of relief which would not have been open to these objections would have been a declaration of the landowner’s right not to have her land taken. This could properly be made against the Government of Guyana as such.

A declaration of rights unlike an injunction, however, is not a suitable form of interim relief pending final determination of the landowner’s application. But if the matter were urgent, it would have been open to the landowner to add, as an additional party to the motion, the Director of Works or the Minister in whom the powers of the Director of Works under the Roads Ordinance are now vested, and to claim an injunction against him. This would give the court jurisdiction to grant an interim injunction if the urgency of the matter so required. This was the course adopted in the Canadian case of Carlic v. The Queen and Minister of Manpower and Immigration (1968) 65 D.L.R. (2d) 633, although their Lordships do not accept as correct that the interim injunction granted in that case should have been expressed to be against both defendants instead of against the Minister to the exclusion of the Queen.

There is, of course, in non-constitutional cases, in some jurisdictions, a debate as to the appropriateness of granting injunctions against officers of the Crown when that injunction operates against them in their representative capacity only as opposed to against them in their personal capacity. A discussion of this debate and approval of the approach which has been taken by the Canadian courts is found in S. A. de Smith, Judicial Review of Administrative Action (4th ed. 1980), at pages 445-449. In the present case, since the challenge is a constitutional one, that particular debate would be irrelevant in any event since the Court has jurisdiction pursuant to section 24 of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] to grant whatever remedies are appropriate in the circumstances.

On the basis of the above review of the relevant jurisprudence, I am not persuaded that it is appropriate to strike the plaintiff’s action as against the present named defendants. I see no impediment however to adding Her Majesty the Queen as an additional defendant to the action. Counsel for the plaintiff indicated that he had no objection to that course of action. An order to that effect will therefore be issued.

League as Plaintiff or Intervenor

The last issue to be dealt with is a motion brought by the League seeking to be added to this litigation either as a plaintiff (as of right or with leave of the Court) or as an intervenor. The plaintiff supports the League’s application including its request to be added as co-plaintiff.

The League’s request to be added as a co-plaintiff, as of right, relies on Mr. Justice Muldoon’s decision in B’Nai Brith Canada Leage for Human Rights v. Canada (Minister of National Defence) (supra). As noted, the League was granted, by that decision, leave to commence an action by way of statement of claim to challenge the constitutionality of DCDS 9/83. Counsel argues that if the League had commenced an action on its own to challenge DCDS 9/83, there would now be two cases before the Court raising the same issues; this would be a classic case for joinder. Accordingly, counsel argues the League should be granted the status of co-plaintiff in the present case.

Counsel for the defendants argues that Mr. Justice Muldoon’s decision depended on the Federal Court of Appeal decision in Canadian Council of Churches v. Canada, [1990] 2 F.C. 534, and that that decision has now been overruled [[1992] 1 S.C.R. 236]. Accordingly, it is argued that while the League should not be granted standing as a plaintiff, counsel for the defendants agreed that the League should be granted intervenor status.

I think counsel for the defendants’ argument must prevail. In the Canadian Council of Churches case, the Federal Court of Appeal found that there were other reasonable and effective means by which the constitutional issue in question could be brought before the Court. The Court nevertheless granted the Council standing, presumably on the basis that as a direct participant in helping those claiming refugee status it had an interest in at least some aspects of the litigation. The Supreme Court overruled this decision, reiterating the three requirements for public interest standing. The Court stated that public interest standing is not required when on the balance of probabilities it can be shown that the measure, whose constitutionality is in question, will be subject to attack by a private litigant.

Mr. Justice Muldoon did not make a finding on whether in the case before him this third test was met because the Federal Court of Appeal, at the time, had broadened that requirement. Accordingly, I do not think the League can rely on Mr. Justice Muldoon’s decision as the basis for its claim to be added as a co-plaintiff. In the light of the Supreme Court decision in the Canadian Council of Churches, I have not been convinced that the League could on its own sustain an action in this case. Accordingly, it will be added as an intervenor. I invite counsel for the League, in consultation with counsel for the plaintiff and counsel for the defendants to submit a draft order for my consideration setting out the terms of such intervention. I understood there to be considerable agreement between them as to what those terms should be.

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