On April 3, 2021, a rare five-member panel of the Alberta Court of Appeal (ABCA) issued its decision in AC and JF v Her Majesty the Queen in Right of Alberta (the Decision). The lower court had granted an injunction that enjoined the Government of Alberta from implementing proposed legislative changes 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.
On appeal, the ABCA had to confront one key issue: the test to be applied by courts in deciding whether to grant an injunction suspending the enforcement of legislation pending a constitutional challenge to the legislation.
In its prior ruling in Alberta Union of Provincial Employees v Alberta (the Prior Decision), the majority of the ABCA appeared to modify the test for granting an injunction to suspend the operation of legislation pending a ruling on its constitutionality. The majority relied on the "presumption of constitutionally" to decline an injunction that sought to restrain legislative changes.
Last summer, the ABCA unanimously granted an application to reconsider the Prior Decision and whether it truly modified the test for injunctive relief when challenging legislation. A summary of the reconsideration of the Prior Decision is outlined in our July 2020 Blakes Bulletin: Second Thoughts? Alberta Court of Appeal Issues Rare Decision Reconsidering Prior Injunction Ruling. The Decision addresses the reconsideration of the Prior Decision.
Although the ABCA allowed the appeal and overturned the injunction, there was a sharp difference of opinion between the majority and the minority regarding the proper test to be applied.
The Alberta Union of Provincial Employees obtained an interim injunction 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.
On appeal, a 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 and rely on, among other principles, "a strong presumption that legislation is constitutional."
In dissent, Madam Justice Paperny disagreed with any modification of the test for injunctive relief and rejected the majority's presumption of constitutional validity.
In the Decision, Madam Justice Paperny now found herself writing for the majority. The majority rejected the argument that the Prior Decision had somehow modified or altered the test for injunctive relief. Relying on authorities from the Supreme Court of Canada, the majority confirmed the application of the traditional tri-partite test for injunctive relief and held that the Prior Decision "should not be read as altering the law on interlocutory injunctions."
The majority disagreed that a stricter standard should be applied when an injunction has the effect of suspending legislation. In particular, when assessing the balance of convenience part of the injunction test, the majority rejected the notion that there is a "strong presumption" that legislation is constitutional: "A presumption of constitutionality is not supported by Supreme Court jurisprudence."
Despite firmly disagreeing that the Prior Decision had modified the test for injunctions challenging legislation, the majority went on to grant the appeal and set aside the injunction. The majority held that the lower court had "failed to put a number of important factors on the scale, and failed to give adequate weight to the public interest in weighing the balancing of convenience." The majority concluded that overall, the injunction "does not outweigh the public interest in the enforcement of legislation in this case."
In dissent, Mr. Justice Slatter wrote that the minority also would have allowed the appeal and overturned the injunction, but using a very different test from that used by the majority.
The minority disagreed that the Prior Decision had somehow changed the law, arguing that it simply interpreted the test and applied it to the unique facts in the case. The minority found that a serious issued to be tried had not been established: "The respondent's 'serious issue' does not arise from the law as it is, but on the law as the respondent hopes it will become. That type of argument is 'frivolous' for the purposes of the test for an interlocutory injunction."
The minority conceded that a presumption of constitutionality may not exist but that "there is an assumption that governments act constitutionally." The minority went on to describe this as a "powerful assumption", which should make courts hesitant to grant injunctive relief restraining the implementation of legislation. The minority relied on other principles to reject the injunction, including the principle that legislation is assumed to be enacted for valid public purposes.
Litigants are increasingly relying on injunctive relief to halt the operation of legislation that they ultimately wish to challenge in a trial. The stakes are high both for litigants seeking to challenge legislation and governments seeking to defend and implement duly enacted legislation. Given the high stakes, the Supreme Court of Canada may ultimately weigh in on the issue.
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