A-1195-82
Robert James Finlay (Appellant) (Plaintiff)
v.
Minister of Finance of Canada, Minister of Na
tional Health and Welfare of Canada and Attor
ney General of Canada (Respondents) (Defend-
ants)
Court of Appeal, Thurlow C.J., Heald J. and
Lalande D.J.—Winnipeg, January 12; Ottawa,
April 25, 1983.
Practice — Parties Standing — Canada Assistance Plan
— Plaintiff recipient of allowances under Manitoba Social
Allowances Act — Claims to be "person in need" pursuant to
s. 2 of Plan, thereby having special interest in proper adminis
tration of Plan — Seeking declaration that payment of contri
butions by Canada to Manitoba under Plan illegal on ground
Manitoba legislation not providing for standard of social
assistance required by Plan and Agreement made thereunder
— Statement of claim struck for lack of standing and reason
able cause of action — Issue of unlawful payments proper
subject-matter for declaration — Issue arising per se, not
flowing from outcome of challenge to legislation — Standing
matter of Court discretion, to be restricted to cases raising
justiciable issues of public interest Issue as to legality of
payments of interest to appellant, to beneficiaries of Plan and
to public in general — Appeal allowed — Statement of claim
restored — Canada Assistance Plan, R.S.C. 1970, c. C-1, ss.
2, 4, 6(2), 7(1), 9(1)(g), 19 The Social Allowances Act,
R.S.M. 1970, c. S160, ss. 9(1)(e), 11(5)(b), 20(3) (added by
S.M. 1980, c. 37, s. 10) — Municipal Act, S.M. 1970, c. 100, s.
444 — Federal Court Rules, C.R.C., c. 663, R. 419(1).
Public health and welfare — Canada Assistance Plan
Plaintiff recipient of allowances under Manitoba Social
Allowances Act — Seeking declaration payment of contribu
tions by Canada to Manitoba pursuant to Plan illegal on
ground Manitoba legislation not providing for standard of
social assistance required by Plan and Agreement made there-
under Plaintiff also seeking injunction enjoining Minister of
National Health and Welfare from making payments —
Statement of claim struck for lack of standing and reasonable
cause of action — Injunction refused Appeal — No urgency
demanding immediate restraint — Standing matter of Court
discretion — Restricted to cases raising issues of public inter
est — Issue as to legality of payments of interest to appellant,
to other beneficiaries of Plan and to public in general — Issue
proper subject-matter for declaration — Dismissal of injunc
tion maintained, statement of claim restored — Canada
Assistance Plan, R.S.C. 1970, c. C-1, ss. 2, 4, 6(2), 7(1),
9(1)(g), 19 — The Social Allowances Act, R.S.M. 1970, c.
S160, ss. 9(1)(e), 11(5)(b), 20(3) (added by S.M. 1980, c. 37, s.
10) — Municipal Act, S.M. 1970, c. 100, s. 444.
Judicial review — Equitable remedies — Injunctions —
Plaintiff recipient of allowances under Manitoba Social
Allowances Act — Seeking declaration payment of contribu
tions by Canada to Manitoba under Canada Assistance Plan
illegal on ground Manitoba legislation not providing for
standard of social assistance required by Plan and Agreement
made thereunder — Appeals from dismissal of originating
notice of motion and of application for interim injunction
enjoining Minister of National Health and Welfare from
making payments — Summary proceeding by originating
notice of motion not proper way to raise issues for determina
tion — No urgency demanding immediate restraint — Situa
tion having prevailed for some time — Appeals dismissed —
Canada Assistance Plan, R.S.C. 1970, c. C-1, ss. 2, 4, 6(2),
7(1), 9(1)(g). 19 — The Social Allowances Act, R.S.M. 1970, c.
S160, ss. 9(1)(e), 11(5)(b), 20(3) (added by S.M. 1980, c. 37, s.
10) — Municipal Act, S.M. 1970, c. 100, s. 444.
The appellant is a resident of Manitoba. His sole source of
support are the allowances he receives under The Social
Allowances Act of Manitoba. Accordingly, he claims to be a
"person in need" pursuant to section 2 of the Canada Assist
ance Plan and therefore asserts a special interest in the proper
administration of the Plan and of the Canada-Manitoba Agree
ment made thereunder. The plaintiff brought an originating
notice of motion for injunction enjoining the Minister of
Finance from making and authorizing the payment of contribu
tions to the Province of Manitoba under subsection 7(1) of the
Plan. By statement of claim, he sought a declaration that
payments made from the Consolidated Revenue Fund of
Canada to Manitoba are made illegally because the Manitoba
social assistance legislation does not provide the standard of
social assistance to poor persons required by the Plan and the
Agreement. The plaintiff also sought a declaration that the
funds paid to Manitoba constitute an overpayment within the
meaning of the Plan and applied for an interim injunction.
This is an appeal against the judgment of the Trial Division
which dismissed the application for an interim injunction and
struck out the statement of claim for lack of standing in law
and failure to disclose a reasonable cause of action. The
appellant also appeals (A-1187-82) the dismissal of his origi
nating notice of motion.
Held (Heald J. dissenting in part), the statement of claim is
restored and the appeals from the dismissal of the application
for interim injunction and of the originating motion for injunc
tion are dismissed.
Per Thurlow C.J.: In so far as the injunction is concerned, a
summary proceeding by way of originating notice of motion is
not the proper way to raise for determination the kind of issues
at bar. As the situation disclosed has prevailed for some years,
there is no urgency demanding immediate restraint and the
issues can be more conveniently identified and determined in
the other proceeding brought by the appellant. With respect to
the appeal against the refusal of an interim injunction, the case
is not one in which such interlocutory relief should be granted.
The fact that the allegations contained in the statement of
claim could conceivably raise a problem for determination
between Canada and a province has been recognized by the
Supreme Court of Canada in LeBlanc et al. v. The City of
Transcona. The plaintiff's claim is asserted against the federal
authorities charged with the administration according to law of
a federal statute which authorizes, under specified circum
stances, the payment of money from the Consolidated Revenue
Fund of Canada. If payments are indeed being made unlawful
ly then there is an appropriate subject-matter for a declaration
to that effect. In the case at bar, the issue of an illegal
expenditure arises per se; it does not arise from the outcome of
challenge to legislation. The case, accordingly, appears stronger
than the Thorson and Borowski decisions of the Supreme
Court of Canada where the alleged illegality of the expenditure
of public funds was a mere consequence flowing from the
statutory provisions being held ultra vires or inoperative. What
is at stake is the right of the citizens of Canada to have the
Consolidated Revenue Fund applied in accordance with the
law: this issue is an apt one for decision by a court.
With respect to the issue of standing, the appellant, as a
person in need, is obviously one of the class of persons whom
Parliament intended to be benefited by the Canada Assistance
Plan. The appellant's interest in having the matter determined
is at least as strong as that of the respondent in Borowski
whereby the latter was found to have met the test for determi
nation of standing, i.e. evidence of being directly affected by
legislation and absence of other reasonable and effective
manner in which the issue could be brought before the Court.
The fact that the appellant cannot claim to be a taxpayer is not
decisive against him. It can be seen from the decisions of the
Supreme Court in Thorson, McNeil and Borowski that the
according of status to bring an action for declaratory relief in
such situations is within the discretion of the Court. That
discretion is to be exercised sparingly and to be restricted to
cases which raise justiciable issues important in the public
interest to have resolved. The issue at bar—the legality of
payments under the Canada-Manitoba Agreement—is one of
sufficient importance to the appellant, the class of persons
intended to have the benefit of the Plan and to the public in
general, to allow the appellant to raise it.
Per Lalande D.J.: There is no doubt that the question
submitted to the Court is one of public interest and that the
appellant has a genuine special interest. Also, there seems to be
no reasonable and effective manner other than an action for a
declaration in which the issue submitted may be brought before
the Court. Until a careful examination of the provisions of the
Plan and of the Agreement with Manitoba has been done, it is
not possible to say that the appellant's position is unarguable or
patently unsustainable.
Per Heald J. (dissenting in part): The appeal dealing with
the statement of claim and the issue of standing should be
dismissed. It is clear from the scheme of the Plan that when the
Minister of National Health and Welfare gives his certificate
authorizing the payment of contributions and when he performs
any other duties imposed on him pursuant to that Plan, he is
performing those duties as an agent representing the Crown
and not as a designated person. Furthermore, there is nothing
in the Plan which imposes on the Minister a legal duty towards
any individual. The duty imposed on the Minister is one owing
to Canada and requires him to decide an administrative ques
tion each time he issues a certificate, i.e. whether the province
has complied with all the requisites necessary to receive the
particular payment. No rights accrue to the appellant from the
Plan. Any right to assistance which he may have must be found
within the provisions of the Manitoba Social Allowances Act.
The appellant has pursued his appeal rights under that statute,
albeit unsuccessfully.
With respect to the appellant's standing, the Thorson,
McNeil and Borowski decisions cannot apply here. The test
enunciated in those decisions is as follows: the status is to be
accorded only in actions where a declaration of invalidity is
sought in respect of certain legislation. In the case at bar, the
appellant is not challenging the validity of the Plan: it is the
administration of the federal statute which he seeks to impugn.
Therefore, the case is not one which is covered by the rationale
of either Thorson, McNeil or Borowski. It follows that the
general rule set out by Laskin C.J. in the Borowski case
applies, namely that it is not open to a citizen and/or taxpayer
"to invoke the jurisdiction of a competent court to obtain ,a
ruling on the interpretation or application of legislation, or on
its validity, when that person is not either directly affected by
the legislation or is not threatened by sanctions for an alleged
violation of the legislation". Since no rights accrue to the
appellant from the Plan, and since the Plan is not a penal
statute, the appellant does not have any status.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Macllreith v. Hart et al. (1907), 39 S.C.R. 657.
DISTINGUISHED:
Rothmans of Pall Mall Canada Limited et al. v. Minis
ter of National Revenue et al. [No. l], [1976] 2 F.C. 500
(C.A.), affirming [1976] 1 F.C. 314 (T.D.).
CONSIDERED:
LeBlanc et al. v. The City of Transcona, [1974] S.C.R.
1261; Paterson v. Bowes (1853), 4 Gr. 170 (Ch.); The
Minister of Justice of Canada et al. v. Borowski, [1981]
2 S.C.R. 575; 39 N.R. 331; Thorson v. The Attorney
General of Canada, et al., [1975] 1 S.C.R. 138; The
Nova Scotia Board of Censors et al. v. McNeil, [1976] 2
S.C.R. 265; (1975), 5 N.R. 43; Finlay and Director of
Welfare (Winnipeg South/West) (1976), 71 D.L.R. (3d)
597 (Man. C.A.); Beattie and The Director of Social
Services (Winnipeg South/West) (judgment dated May
15, 1978, Man. C.A., not reported).
REFERRED TO:
Re Lofstrom and Murphy et al. (1971), 22 D.L.R. (3d)
120 (Sask. C.A.); Smith v. The Attorney General of
Ontario, [1924] S.C.R. 331; Solosky v. Her Majesty The
Queen, [1980] 1 S.C.R. 821; Carota v. Jamieson et al.,
[1977] 1 F.C. 19 (T.D.); [1977] 2 F.C. 239 (C.A.),
affirming [1977] 1 F.C. 504 (T.D.); Regina v. Minister
of Natural Resources of Saskatchewan, [1973] 1
W.W.R. 193 (Sask. C.A.); The Queen v. The Lords
Commissioners of the Treasury (1872), 7 Q.B. 387; The
Queen v. The Secretary of State for War, [1891] 2 Q.B.
326 (C.A.).
COUNSEL:
G. Patrick S. Riley for appellant (plaintiff).
Harry Glinter for respondents (defendants).
SOLICITORS:
G. Patrick S. Riley, Winnipeg, for appellant
(plaintiff).
Deputy Attorney General of Canada for
respondents (defendants).
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: The appellant brought two pro
ceedings in the Trial Division, the first by an
originating notice of motion, the second by a state
ment of claim. Both proceedings raised the same
subject-matter.
The originating motion named the Minister of
Finance of Canada and the Minister of National
Health and Welfare of Canada as respondents and
asked for an injunction enjoining the Minister of
Finance from making any further payments of
contributions to the Province of Manitoba and the
Minister of National Health and Welfare from
making certificates authorizing such payments,
both pursuant to their powers under the Canada
Assistance Plan [R.S.C. 1970, c. C-1], so long as:
1. the Social Allowances Act, R.S.M., cap. S160 continues to
authorize, in subsection 20(3) thereof and elsewhere, the reduc
tion of social allowances below the level of present basic
requirements of life in order to collect alleged debts;
2. ... all assistance payments by Manitoba municipalities
remain legally a loan and not a gift, as specified by section 444
of the Municipal Act, S.M. 1970, c. 100;
3. ... Manitoba permits its municipalities to establish their
own levels of assistance independently of the provincial author
ity as currently permitted by subsection 11(5)(b) of the Social
Allowances Act.
The application was supported by an affidavit of
the appellant setting out the basis of his claim for
the relief sought. It was opposed by the Attorney
General of Canada who brought a counter-motion
seeking a variety of orders including one striking
out the originating notice of motion. When the
matter came on for hearing, the appellant's
application was refused without costs. No written
reasons were filed. Nor was any order made on the
respondents' application. The appellant thereupon
appealed.
Assuming for the moment that injunction would
be an appropriate form of relief in the situation
appearing from the appellant's affidavit, I am of
the view that a summary proceeding by way of an
originating notice of motion supported by an
affidavit is not a suitable way to raise for determi
nation the kind of issues appearing from the record
and that the relief sought should be refused on the
grounds that as the situation disclosed has pre
vailed for some years no urgency demanding
immediate restraint of the respondents is apparent
from the record and the issues can be more con
veniently identified and determined in the other
proceeding which the appellant has brought. I
would accordingly affirm the refusal of an injunc
tion on the originating application.
The proceeding by statement of claim, in addi
tion to claiming an injunction, claims a declaration
that the payments and certificates by the Ministers
are illegal and a declaration that the payments
made to Manitoba are overpayments. It names the
same two Ministers and the Attorney General of
Canada as defendants. On filing the statement of
claim the appellant brought an application for an
interim injunction and a motion for special direc
tions. The defendants' response was to bring a
motion to strike out the statement of claim on the
grounds that:
(a) the appellant did not have the requisite
standing in law to maintain his action ' and
(b) in the alternative that if the appellant had
the requisite standing to maintain the action the
statement of claim did not disclose any reason
able ground for obtaining the relief sought in
that, inter alia, the statement of claim does not
disclose any cause of action against the defend
ant Ministers of the Crown.
The learned Trial Judge refused the injunction
and on the respondents' application struck out the
statement of claim on both grounds. The appellant
appealed.
In so far as the appeal is against the refusal of
an interim injunction I am of the opinion that the
case is not one in which such interlocutory relief
should be granted and that the appeal from such
refusal fails.
That leaves for consideration the questions
whether the appellant has standing to bring the
action and whether the statement of claim dis
closed a reasonable cause of action for declaratory
relief. As the result of the latter issue bears on the
question of standing, I shall deal with it first.
An order striking out a statement of claim on
the ground that it discloses no reasonable cause of
action should not be made unless it is clear that
the action as framed is unsustainable and that by
no allowable amendment could the subject-matter
referred to in it be made to state a reasonable
cause of action. On a motion for such an order the
allegations of the statement of claim must be taken
to be true.
I put that feature of the situation in the fore
front of my reasons. In the present case the state
ment of claim included allegations that payments
' No attention appears to have been paid to the comment of
Collier J., in Carota v. Jamieson et al., [1977] 1 F.C. 19
(T.D.), at p. 25:
I am of the view, in the circumstances here, that the
plaintiff has standing to bring this action. In any event, that
is a question which should not be determined on a procedural
preliminary motion of this kind. It should be the subject of
full evidence, argument and deliberation at trial. At the very
least it should be the subject of a formal hearing on a point
of law, after all relevant facts for determination of that point
have been established.
made and being made from the Consolidated
Revenue Fund of Canada to the Province of
Manitoba are made illegally or without statutory
authority because the Manitoba social assistance
legislation does not provide for and the Province of
Manitoba does not provide the standard of social
assistance to poor persons, of whom the appellant
is one, that is required by the Canada Assistance
Plan and by the Agreement between Canada and
Manitoba made under the authority of that
statute.
That such allegations could conceivably raise a
problem for determination between Canada and a
province was, I think, recognized by Spence J.,
when he said in the course of his reasons in
LeBlanc et al. v. The City of Transcona: 2
It may be argued that the Province of Manitoba when paying
a proportion of the municipal assistance paid out by the City of
Transcona is not providing for persons in need in accordance
with that requirement in the Canada Assistance Plan in that
the schedule applied is not a schedule made by the province.
That, in my view, is a matter which must be settled between the
Province of Manitoba and Canada and can have no application
to an appeal by the present appellant against the refusal of the
City of Transcona to grant him a municipal allowance.
The Canada Assistance Plana begins with the
following recital:
WHEREAS the Parliament of Canada, recognizing that the
provision of adequate assistance to and in respect of persons in
need and the prevention and removal of the causes of poverty
and dependence on public assistance are the concern of all
Canadians, is desirous of encouraging the further development
and extension of assistance and welfare services programs
throughout Canada by sharing more fully with the provinces in
the cost thereof; Therefore, Her Majesty, by and with the
advice and consent of the Senate and House of Commons of
Canada, enacts as follows:
The following provisions of the Act are relevant:
2. In this Act
"assistance" means aid in any form to or in respect of persons
in need for the purpose of providing or providing for all or
any of the following:
2 [1974] S.C.R. 1261, at p. 1268.
3 R.S.C. 1970, c. C-1.
(a) food, shelter, clothing, fuel, utilities, household supplies
and personal requirements (hereinafter referred to as "basic
requirements"),
"person in need" means
(a) a person who, by reason of inability to obtain employ
ment, loss of the principal family provider, illness, disability,
age or other cause of any kind acceptable to the provincial
authority, is found to be unable (on the basis of a test
established by the provincial authority that takes into
account that person's budgetary requirements and the
income and resources available to him to meet such require
ments) to provide adequately for himself, or for himself and
his dependants or any of them ....
4. Subject to this Act, the Minister may, with the approval of
the Governor in Council, enter into an agreement with any
province to provide for the payment by Canada to the province
of contributions in respect of the cost to the province and to
municipalities in the province of
(a) assistance provided by or at the request of provincially
approved agencies, and
(b) welfare services provided in the province by provincially
approved agencies,
pursuant to the provincial law.
6....
(2) An agreement shall provide that the province
(a) will provide financial aid or other assistance to or in
respect of any person in the province who is a person in need
described in paragraph (a) of the definition "person in need"
in section 2, in an amount or manner that takes into account
his basic requirements;
(b) will, in determining whether a person is a person
described in paragraph (a) and the assistance to be provided
to such person, take into account such person's budgetary
requirements and the income and resources available to him
to meet them;
It is, of course, clear that the appellant's allega
tions do not purport to raise and do not raise a
claim against Manitoba, whether under its statutes
or under the Canada-Manitoba Agreement, either
for assistance beyond what the appellant receives
from Manitoba or for a declaration that the Gov
ernment of Manitoba is disregarding that Prov
ince's statutes. The appellant has no more claim to
either than did the appellant in Re Lofstrom and
Murphy et a1. 4 He also has none since he has
carried his claims through the Manitoba courts
and has failed. So far as the Canada-Manitoba
4 (1971), 22 D.L.R. (3d) 120 (Sask. C.A.).
Agreement goes he could scarcely raise a reason
able cause of action against Manitoba on the basis
of an allegation that Manitoba receives money
from Canada to which it is not entitled.
But here the situation is different. The claim is
not asserted against Manitoba. It is asserted
against the federal authorities charged with the
administration according to law of a federal stat
ute which authorizes, under specified circum
stances but only under such circumstances, the
payment of money from the Consolidated Revenue
Fund of Canada. If indeed payments are being
made unlawfully it seems to me that there is
appropriate subject-matter for a declaration to
that effect. That was the basis for relief put for
ward successfully in Macllreith v. Hart et al. 5
which raised an issue as to the lawfulness of an
expenditure of municipal funds. The basis for
relief was the same in Paterson v. Bowes 6 where
the claim was brought against the Mayor of
Toronto to compel repayment to the City of a
profit made in a transaction with a contractor who
had dealings with the City. In The Minister of
Justice of Canada et al. v. Borowski,' Laskin C.J.,
after referring to this feature of the situation in
Macllreith v. Hart et al., said [at page 580]:
In the provincial and federal field, the issue of an illegal, or
perhaps unconstitutional, expenditure would not likely arise per
se but, in the main, only (as is alleged in this case) in
connection with the operation of challenged legislation; the
challenge to the expenditure would thus depend on the outcome
of the challenge to the legislation.
Here the challenge does arise per se and the case is
accordingly in my view stronger than those in
Thorson [see infra, footnote 9] and Borowski
where the alleged illegality of the expenditure of
public funds was a mere consequence that would
flow from the statutory provisions they sought to
attack being held ultra vires in the one case, and
inoperative in the other. The present is a case
directly within the class of Macllreith v. Hart et
al. It varies from it only in that it is federal
expenditure which is alleged to be illegal and in
that the appellant does not assert standing as a
taxpayer.
5 (1907), 39 S.C.R. 657.
6 (1853), 4 Gr. 170 (Ch.).
[1981] 2 S.C.R. 575.
Once it is accepted for the purposes of this
appeal that the allegations of the statement of
claim are true, and it is not inconceivable that they
may be true, one may at once wonder how the
citizenry can put a stop to such illegal action
otherwise than by the declaration of a court of
competent jurisdiction. The issue is not constitu
tional. Nor does it arise on the Canadian Bill of
Rights [R.S.C. 1970, Appendix III]. On the other
hand the statute involved is not regulatory legisla
tion of the kind on which the issue in Smith v. The
Attorney General of Ontario' arose. What is at
stake is the right of the citizens of Canada to have
the Consolidated Revenue Fund of Canada applied
in accordance with the law. This appears to me to
raise an issue of the kind referred to by Laskin J.,
(as he then was) in Thorson v. The Attorney
General of Canada, et al. 9 when he said, at page
158:
For myself, I do not think that it was necessary to restrict the
doctrine of Macllreith v. Hart in order to decide the Smith
case as it was decided. Two entirely different situations were
presented in those two cases. In the Smith case, a regulatory,
even prohibitory, statute was in issue under which offences and
penalties were prescribed; in Macllreith v. Hart, there was a
public right involved which had no punitive aspects for any
particular ratepayer or class of ratepayers, and it would beget
wonder that, in such a case, there should be no judicial means
of recovering or controlling an illegal expenditure of public
money.
In my view the issue raised is an apt one for
decision by a court and the statement of claim
should not have been struck out as disclosing no
reasonable cause of action.
I turn now to the question of the appellant's
standing to maintain the action. He does not assert
standing as a federal taxpayer. What he alleges is
that he is a resident of Manitoba who is a "person
in need" within the meaning of the Canada
Assistance Plan. As such he is obviously one of the
class of persons whom Parliament intended to be
benefited by the Canada Assistance Plan. Neither
the Province of Manitoba nor its municipalities
have any interest in bringing the issue to adjudica
tion and the Attorney General of Canada is a
defendant in the action and acts on behalf of the
8 [1924] S.C.R. 331.
9 [1975] 1 S.C.R. 138.
other defendants in seeking to prevent the matter
being brought to trial.
In such circumstances one may wonder why the
law should prevent a person who is one of the class
of intended beneficiaries of the Canada Assistance
Plan and who alleges that he is not getting the
standard of assistance it intends because Manitoba
does not provide it, from bringing an action to
have the issue of the legality of payments to
Manitoba under the Act resolved. In seeking to
maintain this action he is by no means a mere
busybody and it seems to me that his interest in
having the matter determined is at least as strong
as that of the respondent in the Borowski case. In
the course of his reasons in that case Martland J.,
after discussing the Thorson and McNeil 10 cases,
said at page 598:
I interpret these cases as deciding that to establish status as a
plaintiff in a suit seeking a declaration that legislation is
invalid, if there is a serious issue as to its invalidity, a person
need only to show that he is affected by it directly or that he
has a genuine interest as a citizen in the validity of the
legislation and that there is no other reasonable and effective
manner in which the issue may be brought before the Court. In
my opinion, the respondent has met this test and should be
permitted to proceed with his action.
The fact that the plaintiff in such an action
cannot claim to be a taxpayer is not decisive
against him. That appears from the foregoing cita
tion. It also appears from Paterson v. Bowes where
standing as an inhabitant of Toronto was sufficient
and from the reasons of Laskin J., (as he then was)
in the Thorson case at pages 162-163:
I recognize that any attempt to place standing in a federal
taxpayer suit on the likely tax burden or debt resulting from an
illegal expenditure, by analogy to one of the reasons given for
allowing municipal taxpayers' suits, is as unreal as it is in the
municipal taxpayer cases. Certainly, a federal taxpayer's inter
est may be no less than that of a municipal taxpayer in that
respect. It is not the alleged waste of public funds alone that
will support standing but rather the right of the citizenry to
constitutional behaviour by Parliament where the issue in such
behaviour is justiciable as a legal question.
10 The Nova Scotia Board of Censors et al. v. McNeil,
[1976] 2 S.C.R. 265.
My understanding of the judgments of the
Supreme Court in the Thorson, McNeil and
Borowski cases is that the according of status to
bring an action for declaratory relief in such situa
tions is within the discretion of the Court. The
rules developed by the Court on the subject are but
principles to be applied in exercising that discre
tion. They teach that the discretion is to be exer
cised sparingly and is to be restricted to cases
which raise justiciable issues that it is important in
the public interest to have resolved. Otherwise the
courts would be flooded with specious claims. The
Thorson case raised constitutional issues. The
McNeil case also raised a constitutional issue, one
as to the validity of a provincial statute under
which the Board of Censors operated. The case
also raised challenges to regulatory provisions. In
that respect it was close to, but still different from,
the situation in Smith v. The Attorney General of
Ontario. The Borowski case raised the broad ques
tion of whether the provisions of the Criminal
Code [R.S.C. 1970, c. C-34] permitting abortions
were inoperative as being contrary to the Canadi-
an Bill of Rights and whether expenditures of
public money to support therapeutic abortions
under such provisions were consequently illegal.
The issue here is not like any of these. It is not
so striking as any of them. Even so, it seems to me
to be one of sufficient importance that in the
interest of the appellant, of the class of persons
intended to have the benefit of the Plan and of the
public in general the appellant should be allowed
to raise it. In my opinion, he should not have been
denied standing and his statement of claim should
not have been struck out.
I would allow the appeal and restore the state
ment of claim. For the reasons given the case in
my view is not one for an interlocutory injunction.
I would therefore dismiss the appeal from the
refusal of the appellant's application for such an
injunction. For the same reasons I would dismiss
the appeal from the refusal by the Trial Division of
the appellant's originating application for an
injunction. The respondents should have thirty
days from the date of this judgment to file a
defence in the action. I would not award costs in
either proceeding.
* * *
The following are the reasons for judgment
rendered in English by
HEALD J. (dissenting in part): These appeals
from judgments of the Trial Division were heard
together by agreement of counsel. Appeal A-1187-
82 is from a judgment dismissing appellant's origi
nating notice asking for an injunction enjoining the
respondent Ministers from authorizing and
making payments to the Province of Manitoba
pursuant to subsection 7(1) of the Canada Assist
ance Plan, R.S.C. 1970, c. C-1 (hereinafter the
Plan)." Appeal A-1195-82 is from another judg
ment dismissing the appellant-plaintiff's applica
tion for an interim injunction and striking out the
plaintiff's statement of claim pursuant to Rule
419(1) [Federal Court Rules, C.R.C., c. 663]. The
learned Motions Judge gave no reasons for his
judgment in appeal A-1187-82. In appeal A-1195-
82, the order itself stated that the basis for the
order was twofold:
(a) the plaintiff does not have the requisite
standing in law to maintain his action; and
(b) the statement of claim does not disclose any
reasonable grounds for obtaining the relief
sought.
The issues on both appeals as argued before us are
the same and are also identical to those argued
before the Motions Judge as detailed supra.
l' 7. (1) Contributions or advances on account thereof shall
be paid, upon the certificate of the Minister, out of the Con
solidated Revenue Fund at such times and in such manner as
may be prescribed, but all such payments are subject to the
conditions specified in this Part and in the regulations and to
the observance of the agreements and undertakings contained
in an agreement.
The facts, as set out in the statement of claim,
may be summarized as follows. The plaintiff is a
Manitoba resident, who by reason of severe illness
and disability, is unable to provide adequately for
himself. His sole source of support are the social
allowances he receives pursuant to The Social
Allowances Act of Manitoba. Accordingly, he
claims to be a "person in need" pursuant to the
Plan. 12 He alleges that all contributions made by
the Government of Canada, to the Province of
Manitoba in respect of social assistance provided
by the Province, under the authority of subsection
7(1) of the Plan are subject to the conditions
specified in Part I of the Plan, the regulations
promulgated thereunder and the agreements be
tween Canada and Manitoba. He alleges that the
payments that have been made by Canada to
Manitoba are contrary to said Part I because:
1. The Winnipeg Director of Welfare, pursuant
to authority contained in the provincial Act
12 "Person in need" is defined in section 2 of the Plan as
follows:
2. In this Act
"person in need" means
(a) a person who, by reason of inability to obtain employ
ment, loss of the principal family provider, illness, disabili
ty, age or other cause of any kind acceptable to the
provincial authority, is found to be unable (on the basis of
a test established by the provincial authority that takes
into account that person's budgetary requirements and the
income and resources available to him to meet such
requirements) to provide adequately for himself, or for
himself and his dependants or any of them, or
(b) a person under the age of twenty-one years who is in
the care or custody or under the control or supervision of a
child welfare authority, or a person who is a foster-child as
defined by regulation,
and for the purposes of paragraph (e) of the definition
"assistance" includes a deceased person who was a person
described in paragraph (a) or (b) of this definition at the
time of his death or who, although not such a person at the
time of his death, would have been found to be such a
person if an application for assistance to or in respect of
him had been made immediately before his death;
deducted from his monthly social assistance
payments for 46 months, a 5% deduction to
recover a past overpayment, thereby, in his view,
breaching the Province's undertaking in the
Plan (paragraph 6(2)(a)), 13 to provide financial
aid to persons in need in an amount "that takes
into account his basic requirements".
2. Before he received social allowances under
the provincial legislation he received municipal
relief from the City of Winnipeg. Pursuant to
section 444 of the Manitoba Municipal Act,
that municipal relief is deemed to be a debt. In
his view, this provision also is a breach by
Manitoba of its undertaking under paragraph
6(2)(a) of the Plan referred to supra.
3. The Manitoba legislation empowers the Prov
ince to delegate to its municipalities the power
to establish assistance rates contained in the
definition of "person in need" in section 2 of the
Plan. The result is that municipal relief pay
ments vary to some extent, depending on the
cost of living in different areas, and are usually
lower than the amount fixed by the provincial
legislation. Thus, the plaintiff claims that this
arrangement between the Province and each of
its several municipalities constitutes a further
breach by the Province of its undertakings under
paragraph 6(2)(a) of the Plan.
The statement of claim then seeks a declaration
that the payments of contributions by the Govern
ment of Canada, pursuant to subsection 7(1) of
the Plan, to Manitoba are illegal so long as the
practices detailed in paragraphs 1 to 3 supra are
continued; an injunction enjoining such payments;
and a declaration that all funds paid to Manitoba
'3 Paragraph 6(2)(a) of the Plan reads:
6....
(2) An agreement shall provide that the province
(a) will provide financial aid or other assistance to or in
respect of any person in the province who is a person in
need described in paragraph (a) of the definition "person
in need" in section 2, in an amount or manner that takes
into account his basic requirements;
as contributions since March 20, 1967 are an
overpayment within the meaning of paragraph
9(1)(g) of the Plan.
I think it advisable for a proper understanding
of the issues raised herein to summarize briefly the
scheme of the Canada Assistance Plan. Section 4
enables the Minister of National Health and Wel
fare with the approval of the Governor in Council
to enter into an agreement with any province
which agreement will provide for the payment by
Canada to the province of contributions to the
provincial and municipal welfare and assistance
programs which have been provided by provincial
law. Paragraph 6(2)(a) supra, requires, inter alia,
that the federal-provincial agreement contemplat
ed by section 4 contain an undertaking by the
province to provide financial assistance to persons
in need (as defined in section 2 of the Plan) in a
manner that "takes into account" their basic and
budgetary requirements and having regard also to
the income and resources of an applicant in meet
ing those requirements.
Section 7 supra, provides that the contributions
or payments pursuant to the Plan and the agree
ments are subject to the conditions of Part I of the
Plan, the regulations, and the conditions of the
federal-provincial agreement and stipulates that
such payments are to be made upon the certificate
of the Minister of National Health and Welfare,
out of the Consolidated Revenue Fund.
Section 19 requires the Minister of National
Health and Welfare to prepare an annual report
on the operation of all agreements made under the
Plan and enumerating the payments made to each
of the provinces thereunder. There is also a
requirement that the Minister's report be tabled in
Parliament.
In my opinion, it is clear from the scheme of the
Plan supra, that when the Minister of National
Health and Welfare gives his certificate pursuant
to section 7 and when he performs any other duties
imposed on him pursuant to that Plan, he is per
forming those duties as a servant, agent or officer
representing the Crown and not as a designated
person. 14 Furthermore, I find nothing in the Plan
which imposes on the Minister a legal duty
towards any individual. The duty imposed therein
on the Minister is one owing to Canada and
requires him to decide an administrative question
each time he issues a certificate for payment to a
province—that is—has the province complied with
all the requisites necessary for that particular
province to receive that particular payment. On
this issue, I find persuasive the decision of the
Saskatchewan Court of Appeal in the case of Re
Lofstrom and Murphy et al. 1 S In that case, the
appellant submitted that a regulation passed under
The Saskatchewan Assistance Act, 1966 [S.S.
1966, c. 32] was invalid because, inter alia, it
contravened the statutory provisions of the Plan.
In rejecting this argument, Culliton C.J.S. speak
ing for the Court, said at page 122:
Part I of the Canada Assistance Plan creates no right to
assistance by any person in this Province. It does no more than
provide the legislative authority for the Government of Canada
to enter into a cost-sharing agreement with a provincial Gov
ernment with respect to social assistance granted by the Prov
ince and specifies in some detail the areas in which such costs
may be shared. To ensure that the agreement complies with the
authority granted by the Act, provision is made for the incorpo
ration of certain specific terms in the agreement. It in no way
restricts the legislative competence of a provincial Legislature
in the field of social assistance. If, after entering into an
agreement, a Province adopts legislation and regulations con
trary to the terms of the agreement, that would be a matter
entirely between the Governments, affecting only the respective
obligations and rights under the agreement. The fact that the
provincial legislation and Regulations contravene the term of
the agreement would not render such legislation and Regula
tions invalid if it is otherwise within the legislative competence
of the Province.
In my opinion the right of any resident of Saskatchewan to
assistance must be found within the provisions of the Saskatch-
ewan Assistance Act, 1966. No rights arise by virtue of the
Canada Assistance Plan.
I agree with that view of the matter. No rights
accrue to this appellant from the Plan. Any right
14 Compare: Regina v. Minister of Natural Resources of
Saskatchewan, [1973] 1 W.W.R. 193 (Sask. C.A.), at pp.
198-199, per Culliton C.J.S.; Rothmans of Pall Mall Canada
Limited et al. v. Minister of National Revenue et al., [1976] 1
F.C. 314 (T.D.), at pp. 320-321; The Queen v. The Lords
Commissioners of the Treasury (1872), 7 Q.B. 387, at p. 394;
The Queen v. The Secretary of State for War, [1891] 2 Q.B.
326 (C.A.), at p. 338.
15 (1971), 22 D.L.R. (3d) 120 (Sask. C.A.).
to assistance which he may have must be found
within the provisions of The Social Allowances
Act of Manitoba. He has pursued his appeal rights
under that statute, 16 albeit unsuccessfully.
Turning now to the question as to whether the
appellant has the requisite standing to maintain
this action, I think that the Motions Judge was
also correct in deciding against the appellant on
this issue as well. I do not consider that the
Thorson and McNeil decisions' 7 in the Supreme
Court of Canada have any application to a case
such as this. As stated by Martland J. in the
Borowski case, ]$ in both Thorson and McNeil
supra, the challenge to the legislation in question
was founded upon their alleged constitutional inva
lidity. I am likewise of the view that the decision in
Borowski, supra, does not assist this appellant. In
that case, a declaration was sought that certain
subsections of the Criminal Code were invalid and
inoperative by reason of the operation of the
Canadian Bill of Rights. At page 598 [S.C.R.],
Martland J. speaking for the majority, in discuss
ing Thorson and McNeil, said:
I interpret these cases as deciding that to establish status as a
plaintiff in a suit seeking a declaration that legislation is
invalid, if there is a serious issue as to its invalidity, a person
need only to show that he is affected by it directly or that he
has a genuine interest as a citizen in the validity of the
legislation and that there is no other reasonable and effective
manner in which the issue may be brought before the Court. In
my opinion, the respondent has met this test and should be
permitted to proceed with his action.
As I perceive the test above enunciated in the
Thorson, McNeil and Borowski cases supra,
status is to be accorded only in actions where a
declaration of invalidity is sought in respect of
certain legislation. The case at bar is not such a
'a Pursuant to paragraph 9(1)(e) of that Act, the appellant
appealed the Winnipeg Welfare Director's decision to deduct
5% from 46 of his monthly social assistance payments as
referred to supra. His appeal to the Appeal Board was unsuc
cessful as was his appeal to the Manitoba Court of Appeal
(1976), 71 D.L.R. (3d) 597.
' 7 Thorson v. The Attorney General of Canada, et al., [1975]
1 S.C.R. 138; The Nova Scotia Board of Censors et al. v.
McNeil, [1976] 2 S.C.R. 265; (1975), 5 N.R. 43.
18 The Minister of Justice of Canada et al. v. Borowski,
[1981] 2 S.C.R. 575, at p. 596; 39 N.R. 331, et p. 341.
case. The declaration herein sought, as stated
supra, relates to the validity of administrative
action, i.e., payment by Canada to Manitoba
allegedly contrary to certain provisions of the Plan.
The question raised here is similar to the one
discussed by Le Dain J. in Rothmans of Pall Mall
Canada Limited et al. v. Minister of National
Revenue et al. [No. 11, 19 i.e., it is: "... a question
of administrative interpretation that the authori
ties are obliged to make in their application of the
governing statute". This appellant is not asking for
a declaration challenging the validity of the Plan.
It is the administration of that federal statute
which he seeks to impugn. I therefore think it is
not a case which is covered by the rationale of
either Thorson, McNeil or Borowski. If that is so,
then I think the general rule enunciated by Chief
Justice Laskin in Borowski 2° should apply, namely
that it is not open to a citizen and/or taxpayer "to
invoke the jurisdiction of a competent court to
obtain a ruling on the interpretation or application
of legislation, or on its validity, when that person is
not either directly affected by the legislation or is
not threatened by sanctions for an alleged violation
of the legislation". Since in my view no rights
accrue to this appellant from the Plan, and since
the Plan is in no way a penal statute, he cannot
have any status to seek the declaration sought in
this statement of claim.
For these reasons I would dismiss both appeals.
Since the respondents are not requesting costs, I
would make no order in respect thereof.
* * *
The following are the reasons for judgment
rendered in English by
LALANDE D.J.: This (A-1195-82) is an appeal
against two judgments of the Trial Division dated
November 17, 1982. By the first, appellant's
motion for an interim injunction to enjoin the
Minister of Finance of Canada from making any
further payments to the Province of Manitoba
under subsection 7(1) of the Canada Assistance
19 [1976] 2 F.C. 500 (C.A.), at p. 510.
20 S.C.R., at p. 578; N.R., at pp. 344-345.
Plan, R.S.C. 1970, c. C-1, was refused. By the
second, respondents' motion to strike the statement
of claim was granted on the grounds stated in the
motion, namely, lack of standing on the part of the
appellant and absence of reasonable grounds in his
statement of claim for obtaining the relief sought
by the action. There are no other recorded reasons.
By his statement of claim appellant sought a
declaration that the payment of contributions by
the Minister of Finance under subsection 7(1) is
illegal so long as The Social Allowances Act of
Manitoba
... continues to authorize reducing an allowance below the
level of basic requirements to collect debts; or so long as all
municipal relief paid by Manitoba municipalities remains legal
ly a loan and not a gift; or so long as Manitoba permits its
municipalities to establish their own rates of assistance
independently of the Provincial authority.
Appellant also sought an injunction enjoining
the Minister of Finance and the Minister of Na
tional Health and Welfare from committing the
acts, i.e., paying contributions and issuing certifi
cates, that appellant asks be declared illegal.
It is obvious from this bare statement of what is
involved that the case is not one for an interim
injunction and the appeal from the order refusing
it should be dismissed.
Appellant alleges that he is a "person in need"
within the meaning of the Canada Assistance Plan
and a resident of the Province of Manitoba; that
the Province of Manitoba is not now observing and
never has fully observed its agreement with the
Government of Canada under which it agreed to
provide financial aid or other assistance to a
person in need "in an amount or manner that takes
into account his basic requirements"; that he was
deprived of 5% of his monthly social allowance for
a period of 46 months because the Province
claimed that its agents had paid him too much
assistance, thereby reducing his allowance below
the level of his basic requirements; that the
Municipal Act of Manitoba enacts that the assist
ance provided by municipalities in the Province is
a debt due by the recipient and not a gift; that by
delegating "fully" to its municipalities the estab
lishment of rates of assistance the Province of
Manitoba has contravened the provisions of the
Canada Assistance Plan by failing to establish the
test that is therein required in the definition of
"person in need".
For present purposes the appellant's allegations
must be taken as being true.
With regard to his standing appellant argues
that as a person in need, who has been adversely
affected by being deprived of his basic require
ments, he has a special interest in the carrying out
and proper administration of the Canada Assist
ance Plan and of the agreement thereunder with
the Province of Manitoba.
Respondents' counsel relief on Rothmans of
Pall Mall Canada Limited et al. v. Minister of
National Revenue et al. [No. 11 21 and said it could
not be distinguished from the present case on the
question of standing. I do not agree, the two cases
are worlds apart.
In Rothmans applicants for prohibition and
other like relief, who were cigarette manufactur
ers, contended that the filter tip portion of a
cigarette should be included in determining the
length of the cigarette for purposes of the defini
tion of "cigarette" in the Excise Act [R.S.C. 1970,
c. E-12]. The Department had adopted the posi
tion that the filter tip should not be included and it
was contended that this gave other manufacturers
a competitive advantage that caused prejudice to
the applicants. The Federal Court of Appeal held
with the Trial Judge that the applicants did not
have an interest of the kind necessary to give them
standing to obtain any of the relief sought in their
application.
21 [1976] 2 F.C. 500 (C.A.), affirming [1976] 1 F.C. 314
(T.D.).
Here we have something that is entirely differ
ent. The appellant is a social welfare recipient who
is seeking a judicial declaration as to the meaning
and extent of operation of certain provisions of the
Canada Assistance Plan in the light of the treat
ment he alleges he has received at the hands of the
provincial authorities pursuant to provincial law.
The question to which the appellant is seeking a
judicial answer is whether or not the provisions of
the Manitoba statutes referred to in his statement
of claim affect the rights that he alleges are his by
virtue of the Canada Assistance Plan.
As has been said by Mr. Justice Dickson for the
Supreme Court of Canada in Solosky v. Her
Majesty The Queen, 22 we are not constrained by
the particular form of wording employed in the
prayer for relief. 23 What is essential in this case is
that there be a real question of public interest and
that the applicant have a genuine special interest
in obtaining a judicial declaration upon it. In my
opinion the question submitted is of public interest
and the appellant has a special interest that is
genuine.
But there is another aspect of the matter that
needs being looked into in respect of standing and
that is whether, to use Mr. Justice Martland's
words in The Minister of Justice of Canada et al.
v. Borowski, 24 there is another "reasonable and
effective manner in which the issue may be
brought before the Court".
I will first refer to certain proceedings in the
Manitoba courts.
In Finlay and Director of Welfare (Winnipeg
South/West) 25 the Manitoba Court of Appeal has
decided that the Director of Welfare had statutory
authority under Manitoba law to reduce appel
lant's monthly social allowance below the cost of
basic necessities in order to recover a past overpay
22 [1980] 1 S.C.R. 821, at p. 830.
23 Referring to declaratory proceedings, de Smith's Judicial
Review of Administrative Action (4th ed., London: Stevens &
Sons Limited, 1980) at p. 482: "No other judicial remedy is so
free from restrictive technicalities."
24 [1981] 2 S.C.R. 575, at p. 598.
25 (1976), 71 D.L.R. (3d) 597 (Man. C.A.).
ment. There is no mention in the Court's reasons
of the Canada Assistance Plan.
In the subsequent unreported case of Beattie
and The Director of Social Services (Winnipeg
South/West), one of the questions upon which
leave to appeal was granted was whether the
Social Services Advisory Committee erred in per
mitting the Director of Social Services to make
overpayment deductions contrary to an agreement
between the Government of Manitoba and the
Government of Canada. That question was
answered as follows by Hall J.A. in reasons deliv
ered for the Court on May 15, 1978:
On the first question, it is our opinion that the existence and
possible breach of the agreement between the Provincial and
Federal Governments with regard to the requirement of provid
ing social allowances in an amount sufficient to provide persons
with their basic necessities of life is not relevant to the question
of recovering overpayments from current social allowances.
An application by Kathryn Beattie for prohibi
tion, mandamus and an injunction against the
Minister of National Health and Welfare was
dismissed by the Trial Divison of the Federal
Court on March 30, 1978 (T-1240-78).
It would seem there is no "reasonable and effec
tive manner", other than an action for a declara
tion, in which the issue submitted by the appellant
may be brought before the Court.
The Trial Judge struck out the statement of
claim also on the alternative ground that it did not
disclose any reasonable grounds for obtaining the
relief sought.
The appellant's principal thrust is that the
Manitoba enactments violate subclause 2(a) of the
Agreement dated March 26, 1967 between the
Government of Canada and the Government of the
Province of Manitoba. This is the agreement
authorized in section 4 26 and referred to in subsec
tion 7(1) 27 of the Canada Assistance Plan.
Subclause 2(a) of the Agreement reads as
follows:
The Province agrees
(a) to provide financial aid or other assistance to or in
respect of any person in the province of Manitoba who is a
person in need described in subparagraph (i) of paragraph
(g) of Section 2 of the Act in an amount or manner that
takes into account his basic requirements;
By section 2 of the Act "person in need" means:
2....
(a) a person who, by reason of inability to obtain employ
ment, loss of the principal family provider, illness, disability,
age or other cause of any kind acceptable to the provincial
authority, is found to be unable (on the basis of a test
established by the provincial authority that takes into
account that person's budgetary requirements and the
income and resources available to him to meet such require
ments) to provide adequately for himself, or for himself and
his dependants or any of them, or
One would have to have examined carefully all
of the provisions of the Canada Assistance Plan
and of the section 4 Agreement with Manitoba to
be able to assess the merit of appellant's conten
tion. That has not yet been done and until it is it is
not possible to say that his position is unarguable
or patently unsustainable.
This case is not unlike Carota v. Jamieson et
al. 28 where the plaintiff was seeking a declaration
26 4. Subject to this Act, the Minister may, with the approval
of the Governor in Council, enter into an agreement with any
province to provide for the payment by Canada to the province
of contributions in respect of the cost to the province and to
municipalities in the province of
(a) assistance provided by or at the request of provincially
approved agencies, and
(b) welfare services provided in the province by provincially
approved agencies,
pursuant to the provincial law.
27 7. (1) Contributions or advances on account thereof shall
be paid, upon the certificate of the Minister, out of the Con
solidated Revenue Fund at such times and in such manner as
may be prescribed, but all such payments are subject to the
conditions specified in this Part and in the regulations and to
the observance of the agreements and undertakings contained
in an agreement.
28 [1977] 1 F.C. 19 (T.D.); [1977] 1 F.C. 504 (T.D.),
affirmed [1977] 2 F.C. 239 (C.A.).
that an agreement between the Government of
Canada and the Government of Prince Edward
Island was void as being contrary to a section of
the Department of Regional Economic Expansion
Act, R.S.C. 1970, c. R-4.
My conclusion is that the appellant should have
his day in court on the issue he is raising.
The appeal in case A-1195-82 should be allowed
and the statement of claim restored. The respond
ents should have thirty days from the date of the
judgment in this Court to file a defence in the
action.
I agree with the Chief Justice's affirmation of
the refusal of an injunction on the originating
motion in case A-1187-82.
In both cases there should be no order as to
costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.