T-1663-83
The Pacific Trollers Association (Plaintiff)
v.
Attorney General of Canada; Wayne Shinners, the
Regional Director General of the Department of
Fisheries and Oceans for the Pacific Region, and
the "Fisheries Officers" (Defendants)
Trial Division, Collier J.—Vancouver, July 19 and
21, 1983.
Judicial review — Equitable remedies — Injunctions —
Motion for interim injunction restraining enforcement of
amendments to regulations — Main action seeking declaration
amendments ultra vires for exceeding statutory authority by
imposing year-round closure of salmon fishery — Sufficient
that claim raises serious issue — Next question being adequa
cy of respective remedies in damages — Plaintiff contending
denial of injunction will prevent members from fishing for
certain species for some period, without legal recourse for
recovery of damages — Damage to salmon fishery possibly
much greater than harm to plaintiff's members — No grounds
for believing damage to resource compensable or that plaintiff
would have sufficient funds to pay — Must assess balance of
convenience where adequacy of damages in doubt — Court
assisted by comments of Linden J. in Morgentaler v. Ackroyd,
regarding interim situation: that continued enforcement and
observance of challenged law usually required by balance of
convenience, to avoid violation with impunity of ultimately
valid law; that desirable to maintain status quo, being general
compliance with challenged law — Balance favouring mainte
nance of status quo — Motion dismissed — Pacific Commer
cial Salmon Fishery Regulations, C.R.C., c. 823, ss. 5(1), 17
(as am. by SOR/82-529, s. 15); Schedule I (as am. idem, s. 21).
Fisheries — Amendment to Fishery Regulations imposing
year-round closed season for salmon fishing in certain waters
— Whether ultra vires as statute not authorizing total prohi
bition — Association of fishermen seeking interim injunction
against enforcement of Order in Council — Balance of conve
nience — Damage to fishery if injunction granted — Loss not
compensable in damages — Association unable to pay dam
ages — Status quo to be maintained pending determination of
action for declaration amendments ultra vires — Motion
denied — Pacific Commercial Salmon Fishery Regulations,
C.R.C., c. 823, ss. 5(1), 17 (as am. by SOR/82-529, s. 15);
Schedule I (as am idem, s. 21).
In the main action, the plaintiff was requesting a declaration
that certain amendments to the Pacific Commercial Salmon
Fishery, Regulations were ultra vires. The plaintiff contended
that the amendments exceeded the authority conferred by the
governing statute: although the Regulations gave the Regional
Director the power to vary closures, and although this power
had in fact been used to open up a particular fishery for certain
periods, the amendments nevertheless had the effect of impos
ing a year-round closed season for salmon fishing in the waters
specified by the Regulations.
In the present motion, the plaintiff sought an interim injunc
tion restraining the defendants from doing any act pursuant to,
or for the purpose of enforcing, the amending Order in Council;
or, in the alternative, restraining them from so acting with
respect to particular provisions of the Order.
Held, the motion is dismissed.
On a motion of this kind, it is neither necessary nor proper
for the Court to decide the chief issue raised by the plaintiff in
the main action. In order to proceed to further consideration of
the motion, the Court need only be satisfied that the claim is
not frivolous or vexatious—that there is a serious issue to be
tried. Such an issue does exist in this case.
The question which must next be asked is whether each party
will have an adequate remedy in damages if the Court makes a
decision on this motion adverse to the particular party, and that
decision proves to be at odds with the eventual decision in the
main action. According to the plaintiff, denying it the interim
injunction will mean that its members will be unable to fish for
certain species for some period; and those members will have no
legal recourse whereby they may recover monetary damages in
respect of any resulting loss. For the purposes of this motion,
the correctness of these assertions is accepted. Nonetheless,
there is evidence that the damage to the salmon fishery could
be considerably greater than any harm which might be suffered
by the plaintiff's members. What is more, there are no grounds
for believing that the damage inflicted upon the resource could
be compensated for with money or that, even if it could be, the
plaintiff would have sufficient funds to pay the compensation
which would be appropriate.
When the adequacy of the parties' prospective remedies in
damages is in doubt—as it is here—the Court must assess the
balance of convenience. It is assisted in this exercise by the
comments of Linden J. in Morgentaler v. Ackroyd. In that
case, the learned Judge took the position that when the consti
tutional validity of a law is being challenged in litigation, the
balance of convenience will usually dictate allowing continued
enforcement of the law, and requiring continued obedience to
it, until a final decision on validity has been rendered. The law
under attack has to be accorded such interim treatment, to
avoid a situation in which persons are enabled to perpetrate
with impunity acts that violate what may ultimately prove to be
a valid enactment. Mr. Justice Linden also stressed the desira
bility of maintaining the status quo pending final determination
of the issues being litigated. His Lordship cited this as another
important factor in the assessment of the balance of conve
nience, and said that in the case before him, the status quo
consisted in general compliance with the challenged law.
In the case at bar, the balance of convenience is in favour of
maintaining the status quo in the interim.
CASES JUDICIALLY CONSIDERED
APPLIED:
American Cyanamid Co. v. Ethicon Ltd., [1975] A.C.
396 (H.L.); Morgentaler et al. v. Ackroyd et al. (1983),
42 O.R. (2d) 659 (H.C.J.).
COUNSEL:
C. W. Sanderson and S. B. Armstrong for
plaintiff.
W. B. Scarth, Q.C. for defendants.
SOLICITORS:
Lawson, Lundell, Lawson & McIntosh, Van-
couver, for plaintiff.
Department of Justice for defendants.
The following are the reasons for order ren
dered in English by
COLLIER J.: Upon motion dated the 18th day of
July on behalf of the plaintiff for an order:
I. For an interim injunction restraining the Defendant Attor-
ney-General of Canada, the Defendant the Regional Director,
and the Defendant Fisheries Officers, their servants or agents
from bringing any charges, taking any proceedings, making any
orders, issuing any notices or doing any other act under the
purported authority of an Order-in-Council SOR/82-529 or for
the purpose of enforcing Order-in-Council SOR/82-529;
2. In the alternative to paragraph 1, for an interim injunction
restraining the Defendant Attorney-General of Canada, the
Defendant the Regional Director, and the Defendant Fisheries
Officers, their servants or agents from bringing any charges,
taking any proceedings, making any orders, issuing any notices
or doing any other act under the purported authority of Section
15 and Schedule I [i.e., Schedule I of C.R.C., c. 823, rep. and
sub. s. 21] of Order-in-Council SOR/82-529 or for the purpose
of enforcing Section 15 or Schedule I of Order-in-Council
SOR/82-529.
REASONS FOR ORDER
The plaintiff, in this action, seeks a declaration
that certain amendments, or portions of them,
made in 1982 to the Pacific Commercial Salmon
Fishery Regulations [C.R.C., c. 823], are "ultra
vires .. . null, void, and of no effect."
The present motion is for an interlocutory
injunction, until the trial of the declaratory action,
restraining the defendants from, in effect, enforc
ing the impugned amendments to the Regulations.
The effect of the 1982 amendments is to impose
a year-round closed season for salmon fishing in
the waters referred to in the statement of claim
and Regulations. By subsection 5(1) of the Regu
lations, the Regional Director may vary any closed
time or fishing quota fixed by the Regulations.
According to the evidence, the permanent closures
have been varied to open up a particular fishery
for certain periods of time.
The plaintiff says this regulative system is ultra
vires; the statute does not permit a complete prohi
bition against commercial salmon fishing for 365
days a year.
On a motion of this kind I need not, and should
not, decide this main issue. All that is necessary, at
this stage, is to determine whether the claim is not
frivolous or vexatious; "in other words, that there
is a serious question to be tried": see American
Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396
(H.L.), at page 407.
I am satisfied there is a serious question to be
tried.
The next matter to be determined is whether the
balance of convenience lies in favour of granting or
refusing the interlocutory relief sought. But first,
one must look to the plaintiffs position. Will there
be adequate compensation in damages if the
injunction is refused in this case? The plaintiffs
say they will be unable to fish for certain species of
fish for a limited or longer period of time; they
have no legal recourse to recover monetary dam
ages if they are so prevented.
I shall accept that position for the purposes of
this motion. That does not mean I necessarily
agree with it.
But I also have to look here at the damage
which might be inflicted on the salmon fishery
resource, if an injunction were granted until trial.
The evidence by Mr. Shinners is that the damage
to the resource as a whole could be considerably
greater than any suffered by the plaintiff's mem
bers. I accept that evidence.
Further, there are no grounds for believing that
loss to the resource could be compensated for in
money, or, even if so, that the plaintiff association
would be in a financial position to pay those
damages: see the Ethicon case at page 408.
Where there is a doubt, as here, as to the
adequacy of the respective remedies in damages,
then the question of balance of convenience really
arises. The various factors and matters will, as said
in Ethicon, vary from case to case.
Here, the balance of convenience, to my mind,
lies in maintaining the status quo until the final
determination of the issue being litigated here: the
validity of the impugned regulations.
The comments made by Linden J. in Morgen-
taler et al. v. Ackroyd et al. (1983), 42 O.R. (2d)
659 (H.C.J.) are, I think, of assistance. I quote
from pages 666 to 668:
The third matter that must be demonstrated is that the
balance of convenience in the granting of an interim injunction
favours the applicants over the respondents. If only these two
sets of parties were involved in this application it might well be
that the convenience of the applicants would predominate over
that of the respondents, since the applicants have much to lose
while the respondents do not. However, this is not an ordinary
civil injunction matter; it involves a significant question of
constitutional law and raises a major public issue to be
addressed—that is, what may law enforcement agencies do
pending the outcome of constitutional litigation challenging the
laws they are meant to enforce?
It is contended in this application that the courts should halt
all prosecution (and even investigation) of alleged offences
under s. 251 pending the final resolution of the' constitutional
issue. Such a step would grant to potential offenders an
immunity from prosecution in the interim and perhaps forever.
In the event that the impugned law is ultimately held to be
invalid, no harm would be done by such a course of conduct.
But, if the law is ultimately held to be constitutional, the result
would be that the courts would have prohibited the police from
investigating and prosecuting what has turned out to be crimi
nal activity. This cannot be.
For example, let us assume that someone challenged the
constitutional validity of the Narcotic Control Act, R.S.C.
1970, c. N-1, and sought an injunction to prevent the police
from investigating and prosecuting that person for importing
and selling narcotics pending the resolution of the litigation. If
the court granted the injunction, the sale of narcotic drugs
would be authorized by court order, which would be most
inappropriate if the law is later held to be valid.
Recently, in Re Ontario Film & Video Appreciation Society
and Ontario Board of Censors (March 25, 1983), 41 O.R. (2d)
583, 147 D.L.R. (3d) 58, the Divisional Court has held that
certain activity by the Ontario Board of Censors violated the
Charter, but no injunction was sought or issued to prevent the
board from doing its work either prior to the decision or after
the decision pending the appeal. Rather, a stay of execution
was granted by the court so that the board could continue with
its task pending the final determination by the Court of Appeal
on the constitutionality of the law. That is an orderly and
sensible way to proceed.
Another important consideration in assessing the balance of
convenience is the desirability of maintaining the status quo
until the final determination of the issues being litigated. In this
case, the status quo was one of general compliance with s. 251,
at least until the applicants opened their clinic on June 15,
1983. I do not think that their interest in the operation of the
clinic for those few days prior to this motion can be considered
to be a new status quo that deserves the protection of this
court. To recognize it as such would be to reward disobedience
of the existing law. Hence, the status quo to be maintained is
the one that existed prior to June 15, 1983.
In my view, therefore, the balance of convenience normally
dictates that those who challenge the constitutional validity of
laws must obey those laws pending the court's decision. If the
law is eventually proclaimed unconstitutional, then it need no
longer be complied with, but until that time, it must be
respected and this court will not enjoin its enforcement. Such a
course of action seems to be the best method of ensuring that
our society will continue to respect the law at the same time as
it is being challenged in an orderly way in the courts. This does
not mean, however, that in exceptional circumstances this court
is precluded from granting an interim injunction to prevent
grave injustice, but that will be rare indeed.
The motion for an injunction will be dismissed.
The defendants are entitled to costs.
ORDER
1. The motion is dismissed.
2. The defendants will recover from the plaintiff,
after taxation, their costs of this motion.
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.