On June 29, 2020, in AC and JF v. Her Majesty the Queen in
Right of Alberta, the Alberta Court of Appeal (ABCA)
unanimously granted an application to reconsider a decision issued
by the ABCA only nine months earlier. The ABCA agreed that its
prior ruling in Alberta Union of Provincial Employees
v. Alberta (Prior Decision) met the test for
reconsideration. In that ruling, the majority of the ABCA modified
the test for granting an injunction to suspend the operation of
legislation pending a ruling on its constitutionality.
Successful applications to reconsider prior ABCA decisions are
extraordinarily rare. The ruling to reconsider the Prior Decision
is one of only a handful of cases where the ABCA has agreed to
reconsider one of its earlier decisions. In doing so, the ABCA
signalled the need for clarity on the proper legal test for interim
injunctions that seek to suspend the operation of new legislation.
Increasingly, parties are resorting to the courts for injunctive
relief to prevent the implementation of legislation before the
constitutionality of the law is determined. However, with
conflicting decisions on the appropriate legal test in Alberta and
across the country, the issue is clearly a difficult one where
courts are divided.
The reconsideration of the Prior Decision is likely to be heard by
an equally rare five-member ABCA, potentially setting the stage for
a final showdown at the Supreme Court of Canada.
PRIOR DECISION
Leading up to the Prior Decision, the Alberta Union of
Provincial Employees obtained an interim injunction from the
chambers judge suspending the Alberta government's
implementation of Bill 9, the Public Sector Wage Arbitration
Deferral Act. The chambers judge applied the well-known
three-part test for an interim injunction. He found that there was
a genuine issue to be tried, namely whether Bill 9 was an
unconstitutional infringement of the rights of the union members.
He concluded that there was irreparable harm to the collective
bargaining relationship and that the balance of convenience
favoured the union. As a result, the lower court stayed the
operation of Bill 9 pending trial.
On appeal, a sharply divided ABCA allowed the appeal and set aside
the interim injunction. Writing for the majority, Justices Watson
and Slatter cite the familiar three-part test for injunctions. In
addition, the majority also adopts and relies on other principles
in cases involving injunctions to prevent the implementation of
legislation, including "a strong presumption that legislation
is constitutional."
In a strong dissent, Madam Justice Paperny found that the chambers
judge had properly applied the three-part test and that the
decision was entitled to deference on appeal. In particular, she
disagreed with any modification of the test for injunctive relief
and rejected the majority's presumption of constitutional
validity.
ABCA DECISION
Fast forward nine months, and the ABCA has now decided that the
Prior Decision is worthy of a second look.
In AC and JF v. Her Majesty the Queen in Right of
Alberta, the chambers judge granted an injunction suspending
the implementation of certain amendments to Alberta's
Child, Youth and Family Enhancement Act and the Child,
Youth and Family Enhancement Regulation. Those amendments
reduced the maximum age eligibility for participants in the
financial assistance program.
The Alberta government is appealing that decision. One of the key
issues in the appeal is whether the Prior Decision incorrectly
modified and created a more stringent test that is applicable when
an interim injunction is sought to prevent the implementation of
legislation. In order to seek clarity, an application was brought
to have the ABCA reconsider the Prior Decision.
In a short three-page decision, the ABCA unanimously found that
the Prior Decision should be reconsidered. The ABCA began by noting
that the power to reconsider prior decisions should be exercised
cautiously and sparingly. The ABCA then analyzed the five-factor
test for granting reconsideration. In particular, the ABCA noted
that the majority's adoption of a more stringent test for
injunctive relief and its reliance on a "strong presumption of
constitutionality" in the Prior Decision was out of sync with
other Canadian courts. Although the ABCA did not address whether
the Prior Decision had an obvious, demonstrable flaw, it emphasized
the need for clarity given the sharply divergent views on the
correct legal test. Finally, the ABCA also noted that the Prior
Decision had not been circulated to the entire ABCA for comment or
approval.
As a result, the ABCA granted permission to reconsider the Prior
Decision. Given the contentious nature of the issue, the ABCA will
likely appoint a five-member panel of the ABCA for the
reconsideration hearing.
CONCLUSION
Litigants are increasingly relying on the powerful tool of injunctive relief to halt the operation of legislation that they ultimately wish to challenge in a trial. The stakes are high for both litigants seeking to challenge legislation and governments seeking to defend and implement duly enacted legislation. The conflicting decisions on the appropriate legal test for injunctions with respect to legislation expose the divisions within the courts. By making the very rare decision to reconsider one of its own prior decisions, the ABCA has signalled the need for clarity on a key emerging legal issue.
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