Digests

Lac Seul First Nation v. Canada (Minister of Indian Affairs and Northern Development)

T-1338-04

2004 FC 1183, Snider J.

30/8/04

19 pp.

Motion for interlocutory injunction suspending decision of Minister of Indian Affairs and Northern Development (Minister) to cease direct funding of applicants' child welfare prevention services--From 1984 until March 31, 2002, funding for prevention services paid to Ojibway Tribal Services Inc. (OTFS) which delivered services to applicants and 12 other First Nations--In December 2001, Minister advised OTFS direct funding of prevention services would be terminated on March 31, 2002--Once clear no other delivery model would be worked out by deadline, Minister agreeing to flow funds directly to applicants for one year--Interim funding arrangement extended three times--On June 15, 2004, request for further extension refused--Applicants seeking judicial review of refusal of extension of direct funding--Whether interlocutory injunction available to order Minister to allocate funds for discretionary services or to do so in particular manner or whether Crown immune from injunctions pursuant to common law and Crown Liability and Proceedings Act, s. 22--S. 22 prohibiting injunctions against Crown--Extends to Crown servants--Case concerning conduct of Minister acting as head of government department --Department of Indian Affairs and Northern Development Act, s. 2 suggesting Minister servant of Crown--Interlocutory injunctive relief granted against Minister only if acted beyond statutory authority or constitutional validity of legislation challenged--As case not falling under any of exceptions to Crown immunity against injunctive relief, relief sought not available to applicants--However, should be noted that other judges, faced with same question in similar fact situations, have expressed view court has jurisdiction to grant interim injunction so as to maintain status quo between parties pending disposition of pending claims: Southeast Child and Family Services v. Canada (Attorney General) (1998), 126 Man. R. (2d) 239 (C.A.)--Application of tripartite test for injunction, test found in RJR--MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311--As to serious issue, applicants, Minister describe "decision" at issue differently-- In applicants' view, Minister decided to terminate direct funding and, therefore, services that they fund--In Minister's view, indirect funding through mandated agency chosen by province of Ontario exists and, therefore, neither funding nor services terminated by Minister--Without deciding merits, serious issue raised--As to irreparable harm, applicants submitting absent Court order, their communities will lose essential services--Premise purely speculative--Not termination of funding, but means of funding at issue--If Court not issuing interlocutory injunction, applicants can elect either to receive services from agency funded by Minister or decline funding and do without services they consider essential--Within applicants' control to prevent or halt alleged harm--Applicants not demonstrating irreparable harm --As to balance of convenience, Joyal J., in Tsartlip Indian Band et al. v. Pacific Salmon Foundation et al. (1988), 24 F.T.R. 304 (F.C.T.D.), stating "[t]he action taken by the defendant Crown is prima facie deemed to be in public interest"--Until full assessment of issues, should assume policy determinations of Minister well-founded--Should not be overturned on interlocutory motion--Maintenance of status quo requiring Court to give effect to discretionary policy decision of Minister--Motion denied--Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, ss. 1 (as am. by S.C. 1990, c. 8, s. 21), 22 (as am idem, s. 28)--Department of Indian Affairs and Northern Development Act, R.S.C., 1985, c. I-6, s. 2.