Manitoba (A.G.) v. Metropolitan Stores Ltd., 1987 CanLII 79 (SCC), [1987] 1 SCR 110

Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110

Attorney General of Manitoba Appellant

v.

Metropolitan Stores (MTS) Ltd. Respondent

and

Manitoba Food and Commercial Workers, Local 832 Respondent

and

The Manitoba Labour Board Respondent

indexed as: manitoba (attorney general) v. metropolitan stores ltd.

File No.: 19609.

1986: June 20; 1987: March 5.

Present: Beetz, McIntyre, Lamer, Le Dain and La Forest JJ.

on appeal from the court of appeal for manitoba

Courts ‑‑ Procedure ‑‑ Stay of proceedings and interlocutory injunctions ‑‑ Constitutional validity of legislation challenged ‑‑ Board proposing to act pursuant to challenged legislation ‑‑ Motion to stay Board's proceedings until determination of constitutional validity of legislation ‑‑ Decision to deny motion overturned by Court of Appeal ‑‑ Principle governing judge's discretionary power to grant stay ‑‑ Appropriateness of Court of Appeal's intervention in motion judge's discretion ‑‑ Labour Relations Act, C.C.S.M., c. L10, s. 75.1.

Constitutional law ‑‑ Charter of Rights ‑‑ Currency of impugned legislation ‑‑ Whether or not presumption of constitutionality when legislation challenged under Charter.

The Manitoba Labour Board was empowered by The Labour Relations Act to impose a first collective agreement. When the union applied to have the Board impose a first contract, the employer commenced proceedings in the Manitoba Court of Queen's Bench to have that power declared invalid as contravening the Canadian Charter of Rights and Freedoms. Within the framework of this action, the employer applied by way of motion in the Court of Queen's Bench for an order to stay The Manitoba Labour Board until the issue of the legislation's validity had been heard. The motion was denied. The Board, unfettered by a stay order, indicated that a collective agreement would be imposed if the parties failed to reach an agreement. The Manitoba Court of Appeal allowed the employer's appeal from the decision denying the stay order and granted a stay. At issue here are: (1) whether the Court of Appeal erred in failing to recognize a presumption of constitutional validity where legislation is challenged under the Charter; (2) what principles govern the exercise of a Superior Court Judge's discretionary power to order a stay of proceedings until the constitutionality of impugned legislation has been determined; and (3) whether the Court of Appeal's intervention in the motion judge's discretion was appropriate.

Held: The appeal should be allowed.

The innovative and evolutive character of the Canadian Charter of Rights and Freedoms conflicts with the presumption of constitutional validity in its literal meaning‑‑that a legislative provision challenged on the basis of the Charter can be presumed to be consistent with the Charter and of full force and effect.

A stay of proceedings and an interlocutory injunction are remedies of the same nature and should be governed by the same rules. In order to better delineate the situations in which it is just and equitable to grant an interlocutory injunction, the courts currently apply three main tests.

The first test is a preliminary and tentative assessment of the merits of the case. The traditional way consists in asking whether the litigant who seeks the interlocutory injunction can make out a prima facie case. A more recent formulation holds that all that is necessary is to satisfy the court that there is a serious question to be tried as opposed to a frivolous or vexatious claim. The "serious question" test is sufficient in a case involving the constitutional challenge of a law where the public interest must be taken into consideration in the balance of convenience. The second test addresses the question of irreparable harm. The third test, called the balance of convenience, is a determination of which of the two parties will suffer the greater harm from the grant or refusal of an interlocutory injunction, pending a decision on the merits.

When one contrasts the uncertainty in which a court finds itself with respect to the merits of the constitutional challenge of a law at the interlocutory stage, with the sometimes far‑reaching albeit temporary practical consequences of an interlocutory injunction, not only for the parties to the litigation but also for the public at large, it becomes evident that the courts ought not to be restricted to the traditional application of the balance of convenience.

It is thus necessary to weigh in the balance of convenience the public interest as well as the interest of the parties, and in cases involving interlocutory injunctions directed at statutory authorities, it is erroneous to deal with these authorities as if they had any interest distinct from that of the public to which they owe the duties imposed upon them by statute. Such is the rule even where there is a prima facie case against the enforcement agency, such as one which would require the coming into play of s. 1 of the Charter.

The granting of an interlocutory injunction generally works in one of two ways. Either the law enforcement agency is enjoined from enforcing the impugned provisions in all respects until the question of their validity has been finally determined, or the law enforcement agency is enjoined from enforcing the impugned provisions with respect to the specific litigant who requests the granting of a stay. In the first branch of the alternative, the operation of the impugned provisions is temporarily suspended for all practical purposes. Instances of this type can be referred to as suspension cases. In the second branch of the alternative, the litigant who is granted a stay is in fact exempted from the impugned legislation which, in the meanwhile, continues to operate with respect to others. Instances of this other type are called exemption cases. The rule of the public interest should not be interpreted as meaning that interlocutory injunctive relief will only be granted in exceptional or rare circumstances, at least in exemption cases when the impugned provisions are in the nature of regulations applicable to a relatively limited number of individuals and where no significant harm would be suffered by the public. On the other hand, the public interest normally carries greater weight in favour of compliance with existing legislation in suspension cases when the impugned provisions are broad and general and such as to affect a great many persons.

Finally, in cases where an interlocutory injunction issues in accordance with the above‑stated principles, the parties should generally be required to abide by the dates of a preferential calendar.

Here, the motion judge applied the correct principles in taking into consideration the public interest and the inhibitory impact of a stay of proceedings upon the Board, in addition to its effect upon the parties. The Court of Appeal was not justified in substituting its discretion for that of the motion judge: the emergence of new facts after the judgment of first instance must be of such a nature as to substantially affect the decision of the motion judge in order to justify a Court of Appeal to exercise a fresh discretion.

Cases Cited

Disapproved: Home Oil Distributors Ltd. v. Attorney‑General for British Columbia, 1938 211 (BC CA), [1939] 1 D.L.R. 573; considered: American Cyanamid Co. v. Ethicon Ltd., 1975 2598 (FC), [1975] 1 All E.R. 504; Morgentaler v. Ackroyd (1983), 1983 1748 (ON SC), 42 O.R. 659; Société de développement de la Baie James c. Chef Robert Kanatewat, [1975] C.A. 166; Procureur général du Québec c. Lavigne, [1980] C.A. 25, reversing [1980] C.S. 318; Campbell Motors Ltd. v. Gordon, 1946 242 (BC CA), [1946] 4 D.L.R. 36; Law Society of Alberta v. Black (1984), 1983 ABCA 261, 8 D.L.R. (4th) 346, dismissing (1983), 1983 1001 (AB QB), 144 D.L.R. (3d) 439; referred to: Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486; R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613; Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145; McKay v. The Queen, 1965 3 (SCC), [1965] S.C.R. 798; Re Federal Republic of Germany and Rauca (1983), 1983 1774 (ON CA), 145 D.L.R. (3d) 638; Black v. Law Society of Alberta, 1986 ABCA 68, [1986] 3 W.W.R. 590, leave to appeal granted [1986] 1 S.C.R. x; Attorney General of Canada v. Law Society of British Columbia, 1982 29 (SCC), [1982] 2 S.C.R. 307; Boeckh v. Gowganda‑Queen Mines, Ltd. (1912), 1912 518 (ON SC), 6 D.L.R. 292; Battle Creek Toasted Corn Flake Co. v. Kellogg Toasted Corn Flake Co. (1923), 55 O.L.R. 127; Haldimand‑Norfolk Regional Health Unit and Ontario Nurses' Association, Ont. Div. Ct., January 17, 1979, Galligan, Van Camp and Henry JJ. (unreported); Daciuk v. Manitoba Labour Board, Man. Q.B., June 25, 1985, Dureault J. (unreported); Metropolitan Toronto School Board v. Minister of Education (1985), 1985 2065 (ON SC), 6 C.P.C. (2d) 281; Chesapeake and Ohio Railway Co. v. Ball, 1953 102 (ON SC), [1953] O.R. 843; Aetna Financial Services Ltd. v. Feigelman, 1985 55 (SCC), [1985] 1 S.C.R. 2; Weisfeld v. R. (1985), 16 C.R.R. 24; Turmel v. Canadian Radio‑Television and Telecommunications Commission (1985), 16 C.R.R. 9; Marchand v. Simcoe County Board of Education (1984), 10 C.R.R. 169; Gould v. Attorney General of Canada, 1984 142 (SCC), [1984] 2 S.C.R. 124, aff. 1984 5301 (FCA), [1984] 1 F.C. 1133, setting aside [1984s <) 1984 5391 (FC), 1 F.C. 1119; Cayne v. Global Natural Resources plc., [1984] 1 All E.R. 225; R. v. Jones, 1986 32 (SCC), [1986] 2 S.C.R. 284; Attorney General of Quebec v. Quebec Association of Protestant School Boards, 1984 32 (SCC), [1984] 2 S.C.R. 66; Attorney General of Quebec v. Greater Hull School Board, 1984 29 (SCC), [1984] 2 S.C.R. 575; Pacific Trollers Association v. Attorney General of Canada, 1983 5032 (FC), [1984] 1 F.C. 846; Attorney General of Canada v. Fishing Vessel Owners' Association of B.C., 1985 5505 (FCA), [1985] 1 F.C. 791; Smith v. Inner London Education Authority, [1978] 1 All E.R. 411; Ontario Jockey Club v. Smith (1922), 22 O.W.N. 373; Bregzis v. University of Toronto (1986), 9 C.C.E.L. 282; Vancouver General Hospital v. Stoffman (1985), 1985 778 (BC CA), 23 D.L.R. (4th) 146; Rio Hotel Ltd. v. Liquor Licensing Board, [1986] 2 S.C.R. ix; Home Oil Distributors Ltd. v. Attorney‑General of British Columbia, 1940 46 (SCC), [1940] S.C.R. 444; Société Asbestos Ltée c. Société nationale de l'amiante, [1979] C.A. 342; Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042; Garden Cottage Foods Ltd. v. Milk Marketing Board, [1983] 2 All E.R. 770.

Statutes and Regulations Cited

Act respecting municipal taxation and providing amendments to certain legislation, S.Q. 1979, c. 72.

Canada Elections Act, R.S.C. 1970 (1st Supp.), c. 14, s. 14(4)(e).

Canadian Charter of Rights and Freedoms, ss. 1, 2(a), (b), (d), 3, 6(2), 7, 15, 23, 24, 32(2).

Coal and Petroleum Products Control Board Act, S.B.C. 1937, c. 8.

Code of Civil Procedure, art. 751, 752.

Constitution Act, 1867, ss. 91, 92, 93, 133.

Criminal Code, R.S.C. 1970, c. C‑34, s. 251.

Fisheries Act, R.S.C. 1970, c. F‑14.

Hospital Act, R.S.B.C. 1979, c. 176.

Human Rights Code, 1981, S.O. 1981, c. 53, s. 9(a).

James Bay Region Development Act, S.Q. 1971, c. 34.

Labour Relations Act, C.C.S.M., c. L10, s. 75.1, enacted by S.M. 1984‑85, c. 21, s. 37.

National Emergency Transitional Powers Act, 1945, S.C. 1945, c. 25, s. 2(1)(c).

Pacific Commercial Salmon Fishery Regulations, C.R.C. 1978, c. 823.

Supreme Court of Judicature Act, 1873, 36 & 37 Vict., c. 66, ss. 24, 25.

Authors Cited

Carlson, Patricia. "Granting an Interlocutory Injunction: What is the Test?" (1982), 12 Man. L.J. 109.

Côté, Pierre‑André. "La préséance de la Charte canadienne des droits et libertés," dans La Charte canadienne des droits et libertés: Concepts et impacts. Montréal: Les éditions Thémis, 1984.

Gibson, Dale. The Law of the Charter: General Principles. Calgary: Carswells, 1986.

Halsbury's Laws of England, vol. 24, 4th ed. London: Butterworths, 1979.

Hanbury, Harold Grenville and Ronald Harling Maudsley. Modern Equity, 12th ed. By Jill E. Martin. London: Stevens & Sons, 1985.

Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.

Magnet, Joseph Eliot. "Jurisdictional Fact, Constitutional Fact and the Presumption of Constitutionality" (1980), 11 Man. L.J. 21.

McLeod, Roderick M., et al., eds. The Canadian Char‑ ter of Rights: The Prosecution and Defence of Criminal and Other Statutory Offences, vol. 1. Toronto: Carswells, 1983.

Rogers, Brian MacLeod and George W. Hately. "Getting the Pre‑Trial Injunction" (1982), 60 Can. Bar Rev. 1.

Sharpe, Robert J. Injunctions and Specific Performance. Toronto: Canada Law Book, 1983.

APPEAL from a judgment of the Manitoba Court of Appeal (1985), 1985 3949 (MB CA), 37 Man. R. (2d) 181, ordering a stay of proceedings pending disposition of a constitutional challenge and allowing an appeal from a decision of Krindle J. (1985), 1985 3819 (MB QB), 36 Man. R. (2d) 152, denying an application for a stay of proceedings before The Manitoba Labour Board. Appeal allowed.

Stuart Whitley and Valerie J. Matthews‑Lemieux, for the appellant.

Walter L. Ritchie, Q.C., and Robin Kersey, for the respondent Metropolitan Stores (MTS) Limited.

A. R. McGregor, Q.C., and D. M. Shrom, for the respondent the Manitoba Food and Commercial Workers, Local 832.

David Gisser, for the respondent The Manitoba Labour Board.

The judgment of the Court was delivered by

1. Beetz J.‑‑

I The Facts, the Proceedings and the Judgments of the Courts Below

2. The facts are not in dispute. Here is how the Manitoba Court of Appeal (1985), 1985 3949 (MB CA), 37 Man. R. (2d) 181, described them at p. 181:

Under the terms of the Labour Relations Act, C.C.S.M., c. L‑l0, there is provision allowing the Manitoba Labour Board to impose a first collective agreement upon the employer and the union, in circumstances where bargaining for a first contract has not been fruitful. In this particular case the respondent union is the certified bargaining agent, but has not been successful in negotiating a first collective agreement with the appellant employer. The union applied to have the Manitoba Labour Board impose a first contract.

The employer then commenced proceedings, by way of originating notice of motion in the Manitoba Court of Queen's Bench, to have those provisions of the Labour Relations Act under which a first collective agreement might be imposed, declared invalid, as contravening the Charter of Rights and Freedoms. Within the framework of that action, the employer then applied by way of motion for an order to stay the Manitoba Labour Board until such time as the issue as to the validity of the legislation might be heard by a judge of the Court of Queen's Bench. The motion for a stay was denied by Krindle, J. (see 1985 3819 (MB QB), 36 Man. R. (2d) 152). The board, unfettered by a stay order, then indicated that if the parties failed to conclude a first collective agreement through further negotiations by September 25, l985, the board would proceed to impose a first contract upon the parties within 30 days thereafter.

3. The employer launched an appeal from the decision of Krindle J. refusing a stay order. The Manitoba Court of Appeal allowed the appeal and granted a stay.

4. The reasons of Krindle J. (1985), 1985 3819 (MB QB), 36 Man. R. (2d) 152, for refusing a stay read in part as follows at pp. 153‑54:

The employer argues that the granting of a stay will maintain the status quo between the parties until the constitutional challenge has been dealt with. I cannot accept that argument. The entire notion of maintaining a status quo in these circumstances is fanciful. As of the date of the application for certification there were 22 employees in the unit. At the date this matter came to Court, only five of the original 22 continued to be employed. The industry in question is a high turn‑over one with no history at all of trade union involvement. At some point the union was able to gain the support of a majority of the 22. Nine employees wrote in letters opposing the certification of the union.

We are not here looking to a strong base of support that can withstand lengthy periods of having the union appear to do nothing whatsoever for these people. It is acknowledged by both counsel that this case may well have to wend its way up to the Supreme Court of Canada for final resolution, a matter which will take years. Considering the high turn‑over rate in the unit and the lack of union tradition in the unit, it seems to me to be self evident that the protracted failure of the union to accomplish anything for the employees in the unit virtually guarantees an erosion of support for the bargaining agent. The right of 55% of the employees within the unit to compell [sic] decertification of the bargaining agent, the right of another union to apply for certification on behalf of those employees, are rights not affected by the stay of proceedings. The status quo cannot be frozen. Attempts to freeze it will prejudice the position of the union.

The employer argues that the imposition of a first contract may prejudice the position of the employer. It may give to the union a semblance of bargaining strength which the union does not in fact possess. It may permit the union to benefit from a contract which, left to its own devices, it could not have successfully negotiated. That, however, was the object of the legislation....

Counsel for the employer also raises concern about the contents of the agreement to be imposed. The unit in question is situate in a mall on an Indian Reservation outside The Pas. The terms of the lease between the employer and the owner of the shopping mall contain a provision regarding the employment of a certain minimum percentage of Indian people. That requirement may cause problems if the usual seniority clauses present in most agreements are simply rubber stamped into this first agreement. It may well be that the traditional seniority provisions will have to be modified somewhat in this case to accommodate the requirements of the lease. Surely, though, that is a matter to be brought to the attention of the Board during the course of the Board's hearings into settling the terms of the agreement. I cannot imagine that the Board would fail to give consideration to such a problem in arriving at those terms.

It would seem to me that the granting of a stay in this case would invite the granting of stays in most other cases of applications for first agreements or applications involving the mandatory inclusion of sections within negotiated agreements. In effect, for a two or three year period, prior to any finding of invalidity of those sections, their operation would be suspended, suspended in circumstances where the status quo cannot, practically speaking, be maintained.

In my opinion, in both the circumstances of this particular case and more generally, the balance of convenience favours proceeding as though the sections were valid unless and until the contrary is found.

5. In reviewing the decision of the learned motion judge, the Manitoba Court of Appeal did not make any finding that Krindle J. was in error in concluding that stay ought to be refused, or that she had declined to exercise her discretion or had acted on a wrong principle in exercising her discretion. The Court of Appeal, at pp. 181‑83, exercised fresh discretion based on additional considerations which, in its view, were not before the motion judge:

The appeal first came before this court on September 10, 1985 before a panel consisting of Matas, Huband and Philp, JJ.A. Before any hearing took place on the merits of the appeal, the court adjourned for a few moments, consulted with Court of Queen's Bench authorities as to the prospect of an earlier date for a hearing in the Queen's Bench of the employer's attack on the legislation, resumed the hearing and informed counsel that one day could be set aside for such a hearing on September 25, 1985. This would enable a hearing on the validity of the legislation to take place before any collective agreement could possibly be imposed. Counsel for employer, union and the Manitoba Labour Board, agreed to the September 25th hearing date....

It was understood by all concerned that the one‑day hearing would proceed on September 25th. On that date counsel appeared before Glowacki, J., of the Court of Queen's Bench, but in addition, counsel representing the Canadian Labour Congress also appeared, requesting permission to intervene. Glowacki, J., was advised by counsel for the C.L.C. that it wished to present a considerable amount of evidence relative to the question which might arise as to whether the impugned legislation is a reasonable limit "prescribed by law as can be demonstrably justified in a free and democratic society" in accordance with s. 1 of the Charter of Rights and Freedoms.

Instead of the planned one‑day hearing, a hearing of several days' duration was envisaged. Instead of the matter proceeding on September 25th, Glowacki, J., fixed a hearing date for some time in December 1985.

Once again the prospect of a collective agreement being imposed before a hearing to determine the validity of the legislation became real. Counsel for the employer immediately requested a hearing in this court on the appeal from the order of Krindle, J., denying the stay order which had been adjourned sine die on September 10th. The present panel heard the appeal on the afternoon of September 25th.

At the conclusion of that hearing, it was suggested to counsel for the Manitoba Labour Board, that in order to expedite matters and obtain a decision on the validity of the legislation, it was open to the Manitoba Labour Board to direct a reference to this court. We are informed that there are other cases besides this one where provisions of the Labour Relations Act are under attack as violating the Charter, and it was suggested that these matters might also be resolved by way of a direct reference to this court. We have now been informed however that the board "... will not, at this time, be requesting a reference to the Court of Appeal pursuant to the Labour Relations Act".

By its originating notice of motion, the employer raises a serious challenge to the constitutional validity of various sections of the Labour Relations Act. As previously noted, other provisions in the Act are under attack in other litigation. When Krindle, J., denied the initial request for a stay order, she was not made aware of either the proposed new intervention in this case by the Canadian Labour Congress, nor the other challenges to the Act, based upon the Charter in other litigation.

There is also a new factor, in that the merits of the attack on the legislation could have been expedited in the Court of Queen's Bench, and a hearing to determine the validity of the impugned sections could have taken place in late September, but for the intervention of the Canadian Labour Congress.

In short, this is no longer a matter where this court is reviewing a discretionary order made by the learned motions judge. Additional considerations affecting the exercise of discretion have now been raised, allowing this court to exercise a fresh discretion.

In our view it would be unwise to permit the Manitoba Labour Board to impose a new first contract and then some few months later to find the legislation set aside as unconstitutional as being contrary to the Charter.

A stay is therefore granted, with costs in the cause. We urge that the parties proceed with a hearing on the merits of the employer's motion with dispatch.

6. In allowing the appeal, the Manitoba Court of Appeal ordered that:

all proceedings before the Manitoba Labour Board relating to the application for settlement of a first collective agreement between the Applicant and the Respondent Manitoba Food and Commercial Workers, Local 832, pursuant to Section 75.1 of The Labour Relations Act (Case No. 586/85/LRA), be stayed until after this action has been heard and determined by the Court of Queen's Bench, or further Order of this Court.

7. It is from this interlocutory order that the Attorney General is appealing by leave of this Court. He is supported by the Manitoba Food and Commercial Workers, Local 832, (the "Union") and by The Manitoba Labour Board, (the "Board").

II The Issues

8. The points in issue, according to appellant's factum, are as follows:

9. Did the Manitoba Court of Appeal err in failing to recognize that a presumption of constitutional validity continues to exist where legislation is being challenged on the basis of the Canadian Charter of Rights and Freedoms?

10. Did the Manitoba Court of Appeal err in exercising its discretionary power to grant a stay of proceedings until the constitutional validity of section 75.1 of The Labour Relations Act, C.C.S.M., c. L10 has been determined, since the effect of the stay is to render the legislation inoperative?

11. Did the Manitoba Court of Appeal err when it interfered with the exercise of the trial Judge's discretion in refusing to grant a stay of proceedings?

12. Did the Manitoba Court of Appeal apply proper legal principles when it decided that proceedings before a quasi‑judicial tribunal; namely, a labour board constituted under provincial legislation, should be stayed?

13. The first issue stated by the appellant is related to the existence of a so‑called presumption of constitutional validity of a law when challenged under the Canadian Charter of Rights and Freedoms and will be dealt with first.

14. The second and fourth issues essentially address the same question: in a case where the constitutionality of a legislative provision is challenged, what principles govern the exercise by a Superior Court judge of his discretionary power to order a stay of proceedings until it has been determined whether the impugned provision is constitutional? This issue arises not only in Charter cases but also in other constitutional cases and I propose to review some cases dealing with the distribution of powers between Parliament and the legislatures and some administrative law decisions having to do with the vires of delegated legislation: as I read those cases, there is no essential difference between this type of cases and the Charter cases in so far as the principles governing the grant of interlocutory injunctive relief are concerned.

15. Finally, the third issue raises the question of the appropriateness of the Court of Appeal's intervention in the motion judge's discretion; it will be examined in the last part of this judgment.

III The Canadian Charter of Rights and Freedoms and the So‑called Presumption of Constitutional Validity

12. According to the appellant, the Manitoba Court of Appeal erred in granting a stay of the proceedings since it failed "to recognize that a presumption of constitutional validity continues to exist where legislation is being challenged on the basis of the Canadian Charter of Rights and Freedoms".

13. I should state at the outset that, while I have reached the conclusion that the appeal ought to be allowed, it is not on account of what the appellant calls a presumption of constitutional validity.

14. We have not been told much about the nature, weight, scope and meaning of that presumption. For lack of a better definition, I must assume that the so‑called presumption means exactly what it says, namely, that a legislative provision challenged on the basis of the Charter must be presumed to be consistent with the Charter and of full force and effect.

15. Not only do I find such a presumption not helpful, but, with respect, I find it positively misleading. If it is a presumption strictly so‑called, surely it is a rebuttable one. Otherwise a stay of proceedings could never be granted. But to say that the presumption is rebuttable is to open the way for a rebuttal. This in its turn involves a consideration of the merits of the case which is generally not possible at the interlocutory stage.

16. A reason of principle related to the character of the Charter also persuades me to dismiss the appellant's submission based on the presumption of constitutional validity. Even when one has reached the merits, there is no room for the presumption of constitutional validity within the literal meaning suggested above: the innovative and evolutive character of the Canadian Charter of Rights and Freedoms conflicts with the idea that a legislative provision can be presumed to be consistent with the Charter.

17. As was said by Lamer J., speaking for himself and five other members of the Court in Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486, at p. 496:

The truly novel features of the Constitution Act, 1982 are that it has sanctioned the process of constitutional adjudication and has extended its scope so as to encompass a broader range of values.

18. The Charter extends its protection to rights of a new type such as mobility rights and minority language educational rights. It is significant also that the effect of s. 15, relating to equality rights, was delayed by three years pursuant to s. 32(2) of the Charter, presumably to give time to Parliament and the legislatures to prepare for the necessary adjustments.

19. Furthermore, the innovative character of the Charter affects even traditional rights already recognized before the coming into force of the Charter and which must now be viewed in a new light. In R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, this Court declined to restrict the meaning of the freedom of conscience and religion guaranteed by the Charter to such interpretation of this freedom as had prevailed before the Charter. At pages 343‑44 of the Big M case, Dickson J., as he then was, speaking for himself and four other members of the Court, wrote as follows:

...it is certain that the Canadian Charter of Rights and Freedoms does not simply "recognize and declare" existing rights as they were circumscribed by legislation current at the time of the Charter's entrenchment. The language of the Charter is imperative. It avoids any reference to existing or continuing rights but rather proclaims in the ringing terms of s. 2 that:

2. Everyone has the following fundamental freedoms:

(a) Freedom of conscience and religion;

I agree with the submission of the respondent that the Charter is intended to set a standard upon which present as well as future legislation is to be tested. Therefore the meaning of the concept of freedom of conscience and religion is not to be determined solely by the degree to which that right was enjoyed by Canadians prior to the proclamation of the Charter.

20. Similarly, as traditional a right as the presumption of innocence is given a greater degree of protection under the Charter than it has received prior to the Charter: R. v. Oakes, [1986] l S.C.R. 103.

21. Thus, the setting out of certain rights and freedoms in the Charter has not frozen their content. The meaning of those rights and freedoms has in many cases evolved, and, given the nature of the Charter, must remain susceptible to evolve in the future:

In my opinion the premise that the framers of the Charter must be presumed to have intended that the words used by it should be given the meaning which had been given to them by judicial decisions at the time the Charter was enacted is not a reliable guide to its interpretation and application. By its very nature a constitutional charter of rights and freedoms must use general language which is capable of development and adaptation by the courts.

(Per Le Dain J., dissenting, although not on this point, in R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613, at p. 638.)

22. The views of Le Dain J. reflect those of Dickson J., as he then was, in Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 155:

The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers.

23. In my view, the presumption of constitutional validity understood in the literal sense mentioned above, and whether it is applied to laws enacted prior to the Charter or after the Charter, is not compatible with the innovative and evolutive character of this constitutional instrument.

24. This proposition should not be taken as necessarily affecting what has sometimes been designated, perhaps improperly, as other meanings of the "presumption of constitutionality".

25. One such meaning refers to the elementary rule of legal procedure according to which "the one who asserts must prove" and "the onus of establishing that legislation violates the Constitution undeniably lies with those who oppose the legislation": D. Gibson, The Law of the Charter: General Principles (1986), pp. 56 and 58. By definition, such a rule is essentially directed to the merits of the case.

26. Still another meaning of the "presumption of constitutionality" is the rule of construction under which an impugned statute ought to be construed, whenever possible, in such a way as to make it conform to the Constitution. This rule of construction is well known and generally accepted and applied under the provisions of the Constitution relating to the distribution of powers between Parliament and the provincial legislatures. It is this rule which has led to the "reading down" of certain statutes drafted in terms sufficiently broad to reach objects not within the competence of the enacting legislature: McKay v. The Queen, 1965 3 (SCC), [1965] S.C.R. 798. In the Southam case, supra, a Charter case, it was held at p. 169 that it "should not fall to the courts to fill in the details that will render legislative lacunae constitutional". But that was a question of "reading in", not "reading down". The extent to which this rule of construction otherwise applies, if at all, in the field of the Charter is a matter of controversy: Re Federal Republic of Germany and Rauca (1983), 1983 1774 (ON CA), 145 D.L.R. (3d) 638, at p. 658 (Ont. C.A.); Black v. Law Society of Alberta, 1986 ABCA 68, [1986] 3 W.W.R. 590, at p. 628 (Alta. C.A.), leave to appeal has been granted, [1986] 1 S.C.R. x; P.‑A. Côté, "La préséance de la Charte canadienne des droits et libertés," in La Charte canadienne des droits et libertés: Concepts et impacts (1984), pp. 124‑26; R. M. McLeod, et al., eds., The Canadian Charter of Rights: The Prosecution and Defence of Criminal and Other Statutory Offences (1983), vol. 1, pp. 2‑198 to 2‑209; P. W. Hogg, Constitutional Law of Canada (2nd ed. 1985), p. 327; D. Gibson, The Law of the Charter: General Principles (1986), pp. 57, 58 and 186‑88. I refrain from expressing any view on this question which also arises only when the merits are being considered.

IV The Principles Which Govern the Exercise of the Discretionary Power to Order a Stay of Proceedings Pending the Constitutional Challenge of a Legislative Provision

27. The second question in issue involves a study of the principles which govern the granting of a stay of proceedings while the constitutionality of a legislative provision is challenged in court by the plaintiff.

28. It should be observed that none of the parties has disputed the existence of the discretionary power to order a stay in such a case and, in my view, the parties were right in conceding that the trial judge had jurisdiction to order a stay: see Attorney General of Canada v. Law Society of British Columbia, 1982 29 (SCC), [1982] 2 S.C.R. 307, at p. 330.

(1) The Usual Conditions for the Granting of a Stay

29. Prior to the Supreme Court of Judicature Act, 1873, 36 & 37 Vict., c. 66, no distinction between injunctions restraining proceedings and other sorts of injunctions was drawn in English law (Halsbury's Laws of England, vol. 24, 4th ed., p. 577). The Parliament of Westminster then enacted the Act referred to above, which in the main has been adopted by all of the provinces of Canada except Quebec where the distinction between equity and law is unknown. The distinction the English Judicature Act created between a stay of proceedings and an injunction was, however, essentially procedural. Section 24(5) stated that no cause or proceeding at any time pending in the High Court of Justice, or before the Court of Appeal, shall be restrained by prohibition or injunction provided that "any person, whether a party or not to any such cause or matter, who would have been entitled, if this Act had not passed, to apply to any Court to restrain the prosecution thereof...shall be at liberty to apply to the said Courts respectively, by motion in a summary way, for a stay of proceedings in such cause or matter, either generally, or so far as may be necessary for the purposes of justice; and the Court shall thereupon make such Order as shall be just." Section 25(8) of the same Act provided further that an injunction may be granted in all cases in which it shall appear to the Court to be "just and convenient" that such order should be made. See also Boeckh v. Gowganda‑Queen Mines, Ltd. (1912), 1912 518 (ON SC), 6 D.L.R. 292.

30. A stay of proceedings and an interlocutory injunction are remedies of the same nature. In the absence of a different test prescribed by statute, they have sufficient characteristics in common to be governed by the same rules and the courts have rightly tended to apply to the granting of interlocutory stay the principles which they follow with respect to interlocutory injunctions: Battle Creek Toasted Corn Flake Co. v. Kellogg Toasted Corn Flake Co. (1923), 55 O.L.R. 127, at p. 132; Haldimand‑Norfolk Regional Health Unit and Ontario Nurses' Association, Ont. Div. Ct., January 17, 1979, Galligan, Van Camp and Henry JJ. (unreported); Daciuk v. Manitoba Labour Board, Man. Q.B., June 25, 1985, Dureault J. (unreported); Metropolitan Toronto School Board v. Minister of Education (1985), 6 C.P.C. (2d) 28l (Ont. Div. Ct.), at p. 292, leave to appeal to the Court of Appeal refused.

31. The case law is abundant as well as relatively fluid with regard to the tests developed by the courts in order to help better delineate the situations in which it is just and equitable to grant an interlocutory injunction. Reviewing it is the function of doctrinal analysis rather than that of judicial decision‑making and I simply propose to give a bare outline of the three main tests currently applied.

32. The first test is a preliminary and tentative assessment of the merits of the case, but there is more than one way to describe this first test. The traditional way consists in asking whether the litigant who seeks the interlocutory injunction can make out a prima facie case. The injunction will be refused unless he can: Chesapeake and Ohio Railway Co. v. Ball, 1953 102 (ON SC), [1953] O.R. 843, per McRuer C.J.H.C., at pp. 854‑55. The House of Lords has somewhat relaxed this first test in American Cyanamid Co. v. Ethicon Ltd., [1975] l All E.R. 504, where it held that all that was necessary to meet this test was to satisfy the Court that there was a serious question to be tried as opposed to a frivolous or vexatious claim. Estey J. speaking for himself and five other members of the Court in a unanimous judgment referred to but did not comment upon this difference in Aetna Financial Services Ltd. v. Feigelman, [1985] l S.C.R. 2, at pp. 9‑10.

33. American Cyanamid has been followed on this point in many Canadian and English cases, but it has also been rejected in several other instances and it does not appear to be followed in Australia: see the commentaries and cases referred to in P. Carlson, "Granting an Interlocutory Injunction: What is the Test?" (1982), 12 Man. L.J. 109; B. M. Rogers and G. W. Hately, "Getting the Pre‑Trial Injunction" (1982), 60 Can. Bar Rev. 1, at pp. 9‑19; R. J. Sharpe, Injunctions and Specific Performance (Toronto 1983), at pp. 66‑77.

34. In the case at bar, it is neither necessary nor advisable to choose, for all purposes, between the traditional formulation and the American Cyanamid description of the first test: the British case law illustrates that the formulation of a rigid test for all types of cases, without considering their nature, is not to be favoured (see Hanbury and Maudsley, Modern Equity (12th ed. 1960), pp. 736‑43). In my view, however, the American Cyanamid "serious question" formulation is sufficient in a constitutional case where, as indicated below in these reasons, the public interest is taken into consideration in the balance of convenience. But I refrain from expressing any view with respect to the sufficiency or adequacy of this formulation in any other type of case.

35. The second test consists in deciding whether the litigant who seeks the interlocutory injunction would, unless the injunction is granted, suffer irreparable harm, that is harm not susceptible or difficult to be compensated in damages. Some judges consider at the same time the situation of the other party to the litigation and ask themselves whether the granting of the interlocutory injunction would cause irreparable harm to this other party if the main action fails. Other judges take the view that this last aspect rather forms part of the balance of convenience.

36. The third test, called the balance of convenience and which ought perhaps to be called more appropriately the balance of inconvenience, is a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits.

37. I now propose to consider the particular application of the test of the balance of convenience in a case where the constitutional validity of a legislative provision is challenged. As Lord Diplock said in American Cyanamid, supra, at p. 511:

...there may be many other special factors to be taken into consideration in the particular circumstances of individual cases.

38. It will be seen in what follows that the consequences for the public as well as for the parties, of granting a stay in a constitutional case, do constitute "special factors" to be taken into consideration.

(2) The Balance of Convenience and the Public Interest

39. A review of the case law indicates that, when the constitutional validity of a legislative provision is challenged, the courts consider that they ought not to be restricted to the application of traditional criteria which govern the granting or refusal of interlocutory injunctive relief in ordinary private or civil law cases. Unless the public interest is also taken into consideration in evaluating the balance of convenience, they very often express their disinclination to grant injunctive relief before constitutional invalidity has been finally decided on the merits.

40. The reasons for this disinclination become readily understandable when one contrasts the uncertainty in which a court finds itself with respect to the merits at the interlocutory stage, with the sometimes far‑reaching albeit temporary practical consequences of a stay of proceedings, not only for the parties to the litigation but also for the public at large.

(i) Difficulty or Impossibility to Decide the Merits at the Interlocutory Stage

41. The limited role of a court at the interlocutory stage was well described by Lord Diplock in the American Cyanamid case, supra, at p. 510:

It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial.

42. The American Cyanamid case was a complicated civil case but Lord Diplock's dictum, just quoted, should a fortiori be followed for several reasons in a Charter case and in other constitutional cases when the validity of a law is challenged.

43. First, the extent and exact meaning of the rights guaranteed by the Charter are often far from clear and the interlocutory procedure rarely enables a motion judge to ascertain these crucial questions. Constitutional adjudication is particularly unsuited to the expeditious and informal proceedings of a weekly court where there are little or no pleadings and submissions in writing, and where the Attorney General of Canada or of the Province may not yet have been notified as is usually required by law; see Home Oil Distributors Ltd. v. Attorney‑General for British Columbia, [1939] l D.L.R. 573, at p. 577; Weisfeld v. R. (1985), 16 C.R.R. 24, and, for an extreme example, Turmel v. Canadian Radio‑Television and Telecommunications Commission (1985), 16 C.R.R. 9.

44. Still, in Charter cases such as those which may arise under s. 23 relating to Minority Language Educational Rights, the factual situation as well as the law may be so uncertain at the interlocutory stage as to prevent the court from forming even a tentative opinion on the case of the plaintiff; Marchand v. Simcoe County Board of Education (1984), 10 C.R.R. 169, at p. 174.

45. Furthermore, in many Charter cases such as the case at bar, some party may find it necessary or prudent to adduce evidence tending to establish that the impugned provision, although prima facie in violation of a guaranteed right or freedom, can be saved under s. 1 of the Charter. But evidence adduced pursuant to s. 1 of the Charter essentially addresses the merits of the case.

46. This latter rule was clearly stated in Gould v. Attorney General of Canada, 1984 142 (SCC), [1984] 2 S.C.R. 124, aff. [1984] l F.C. 1133, which set aside [1984] l F.C. 1119. It was held that a court is not at the interlocutory stage in an adequate position to decide the merits of a case even though the evidence that is likely to be adduced under s. 1 seems of little weight. In the Federal Court of Appeal, Thurlow C.J., dissenting, held at pp. 1137‑38 that a court is sometimes entitled to examine the merits of the case and anticipate the result of the action:

I agree with the criticisms and views expressed by the learned Trial Judge as to the weakness of the evidence led to show that a serious case could be made out that the limitation of paragraph 14(4)(e) is demonstrably justified in a free and democratic society. She was obviously not impressed by the evidence. I share her view. The impression I have of it is that when that is all that could be put before the Court to show a serious case, after four years of work on the question, it becomes apparent that the case for maintaining the validity of the disqualification as enacted can scarcely be regarded as a serious one.

In such circumstances then should the Court treat it seriously? Should the Court irrevocably deprive the respondent of a constitutional right to which he appears to be entitled by denying the injunction in order to give the appellants an opportunity, which probably will not arise, to show he is not entitled, when all the appellants can offer to show that they have a case, is weak? I think not. Even less do I think this Court should interfere with the exercise of the discretion of the Trial Judge in the circumstances.

47. Mahoney J., whose opinion was generally approved by this Court, took the opposite view (at p. 1140):

The order implies and is based on a finding that the respondent has, in fact, the right he claims and that paragraph 14(4)(e) is invalid to the extent claimed. That is an interim declaration of right and, with respect, is not a declaration that can properly be made before trial. The defendant in an action is as entitled to a full and fair trial as is the plaintiff and that is equally so when the issue is constitutional.

48. Such cautious restraint respects the right of both parties to a full trial, the importance of which was emphasized by the judicious comments of May L.J. in Cayne v. Global Natural Resources plc., [1984] l All E.R. 225, at p. 238. Also, it is consistent with the fact that, in some cases, the impugned provision will not be found to violate a right or freedom protected by the Charter after all and thus will not need to be saved under s. 1; see R. v. Jones, 1986 32 (SCC), [1986] 2 S.C.R. 284.

49. In addition, to think that the question of constitutional validity can be determined at the interlocutory stage is to ignore the many hazards of litigation, constitutional or otherwise. A plaintiff may fail for lack of standing, lack of adequate proof, procedural or other defect. As was correctly put by Professor J. E. Magnet:

Unconstitutionality cannot be understood as an unqualified condition. It has to be understood in light of the plaintiff's ability to bring to fruition judgment in his favour.

(J. E. Magnet, "Jurisdictional Fact, Constitutional Fact and the Presumption of Constitutionality" (1980), 11 Man. L.J. 21, at p. 29.)

50. However, the principle I am discussing is not absolute. There may be rare cases where the question of constitutionality will present itself as a simple question of law alone which can be finally settled by a motion judge. A theoretical example which comes to mind is one where Parliament or a legislature would purport to pass a law imposing the beliefs of a state religion. Such a law would violate s. 2(a) of the Canadian Charter of Rights and Freedoms, could not possibly be saved under s. 1 of the Charter and might perhaps be struck down right away; see Attorney General of Quebec v. Quebec Association of Protestant School Boards, 1984 32 (SCC), [1984] 2 S.C.R. 66, at p. 88. It is trite to say that these cases are exceptional.

51. Most of the difficulties encountered by a trial judge at the interlocutory stage, which are raised above, apply not only in Charter cases but also in other constitutional challenges of a law. I therefore fully agree with what Professor R. J. Sharpe wrote in Injunctions and Specific Performance, at p. 177, in particular with respect to constitutional cases that "the courts have sensibly paid heed to the fact that at the interlocutory stage they cannot fully explore the merits of the plaintiff's case". At this stage, even in cases where the plaintiff has a serious question to be tried or even a prima facie case, the court is generally much too uncertain as to the facts and the law to be in a position to decide the merits.

(ii) The Consequences of Granting a Stay in Constitutional Cases

52. Keeping in mind the state of uncertainty above referred to, I turn to the consequences that will certainly or probably follow the granting of a stay of proceedings. As previously said, I will not restrict myself to Charter instances. I also propose to refer to a few Quebec examples. In that province, the issuance of interlocutory injunctions is governed by arts. 751 and 752 of the Code of Civil Procedure:

53. An injunction is an order of the Superior Court or of a judge thereof, enjoining a person, his officers, agents or employees, not to do or to cease doing, or, in cases which admit of it, to perform a particular act or operation, under pain of all legal penalties.

54. In addition to an injunction, which he may demand by action, with or without other conclusions, a party may, at the commencement of or during a suit, obtain an interlocutory injunction.

An interlocutory injunction may be granted when the applicant appears to be entitled to it and it is considered to be necessary in order to avoid serious or irreparable injury to him, or a factual or legal situation of such a nature as to render the final judgment ineffectual.

53. While these provisions differ somewhat from the English law of injunctions, they are clearly inspired by and derived from this law and I do not think that the Quebec cases I propose to refer to turn on any differences between the English law and the Code.

54. Although constitutional cases are often the result of a lis between private litigants, they sometimes involve some public authority interposed between the litigants, such as the Board in the case at bar. In other constitutional cases, the controversy or the lis, if it can be called a lis, will arise directly between a private litigant and the State represented by some public authority; Morgentaler v. Ackroyd (1983), 1983 1748 (ON SC), 42 O.R. 659.

55. In both sorts of cases, the granting of a stay requested by the private litigants or by one of them is usually aimed at the public authority, law enforcement agency, administrative board, public official or minister responsible for the implementation or administration of the impugned legislation and generally works in one of two ways. Either the law enforcement agency is enjoined from enforcing the impugned provisions in all respects until the question of their validity has been finally determined, or the law enforcement agency is enjoined from enforcing the impugned provisions with respect to the specific litigant or litigants who request the granting of a stay. In the first branch of the alternative, the operation of the impugned provisions is temporarily suspended for all practical purposes. Instances of this type can perhaps be referred to as suspension cases. In the second branch of the alternative, the litigant who is granted a stay is in fact exempted from the impugned legislation which, in the meanwhile, continues to operate with respect to others. Instances of this other type, I will call exemption cases.

56. Whether or not they are ultimately held to be constitutional, the laws which litigants seek to suspend or from which they seek to be exempted by way of interlocutory injunctive relief have been enacted by democratically‑elected legislatures and are generally passed for the common good, for instance: the providing and financing of public services such as educational services, or of public utilities such as electricity, the protection of public health, natural resources and the environment, the repression of what is considered to be criminal activity, the controlling of economic activity such as the containing of inflation, the regulation of labour relations, etc. It seems axiomatic that the granting of interlocutory injunctive relief in most suspension cases and, up to a point, as will be seen later, in quite a few exemption cases, is susceptible temporarily to frustrate the pursuit of the common good.

57. While respect for the Constitution must remain paramount, the question then arises whether it is equitable and just to deprive the public, or important sectors thereof, from the protection and advantages of impugned legislation, the invalidity of which is merely uncertain, unless the public interest is taken into consideration in the balance of convenience and is given the weight it deserves. As could be expected, the courts have generally answered this question in the negative. In looking at the balance of convenience, they have found it necessary to rise above the interests of private litigants up to the level of the public interest, and, in cases involving interlocutory injunctions directed at statutory authorities, they have correctly held it is erroneous to deal with these authorities as if they have any interest distinct from that of the public to which they owe the duties imposed upon them by statute.

58. The following provide examples of the concern expressed by the courts for the protection of the common good in suspension and exemption cases. I will first address the suspension cases.

59. Société de développement de la Baie James c. Chef Robert Kanatewat, [1975] C.A. 166, is a striking illustration of interlocutory relief which could have compromised the common good of the public as a whole. In that case, the Quebec Court of Appeal, reversing the Superior Court, 1973 2500 (QC CS), [1974] R.P. 38, dismissed an application for interlocutory injunction which would have required the appellants to halt the James Bay project authorized by the James Bay Region Development Act, S.Q. 1971, c. 34, the constitutional validity of which had been challenged by the respondents. Crête J.A., as he then was, wrote what follows in looking at the balance of convenience at p. 182:

[TRANSLATION] ...I am not persuaded that the inconvenience suffered or apprehended by the respondents was of the same order of magnitude as the growing energy needs of Quebec as a whole.

60. Turgeon J.A. reached the same conclusions at p. 177:

[TRANSLATION] It is important to note at the outset that hydroelectricity is the only primary energy resource the province of Quebec has. With the present acute world oil crisis, this resource has assumed a critical importance in guaranteeing the economic future and well‑being of Quebec citizens. The interests of the people of Quebec are represented in the case at bar by the principal appellant companies.

The evidence established that is imperative for Hydro‑Quebec to complete its program if it is to meet the growing demand for electricity up to 1985. . . . A suspension of work would have disastrous consequences, as it would mean an alternative program would have to be created to produce electricity by thermal or nuclear plants. [Emphasis added.]

(Leave to appeal was granted by this Court on February 13, 1975, but a declaration of settlement out of court was filed on January 1980, further to which, on the same date, Chief Robert Kanatewat and others discontinued their appeal.)

61. In Procureur général du Québec c. Lavigne, [1980] C.A. 25, the Quebec Court of Appeal, again reversing the Superior Court, [1980] C.S. 3l8, dismissed an application for interlocutory injunction enjoining the Attorney General, the Minister of Education, the Minister of Municipal Affairs and others from temporarily enforcing certain provisions of the Act respecting municipal taxation and providing amendments to certain legislation, S.Q. 1979, c. 72. The statute in question provided for school financing through a system of grants; taxation became a complementary method subject to new conditions. The scheme allegedly violated the constitutional guarantees of s. 93 of the Constitution Act, 1867, an allegation which was later sustained by this Court in Attorney General of Quebec v. Greater Hull School Board, 1984 29 (SCC), [1984] 2 S.C.R. 575.

62. The Superior Court had granted an interlocutory injunction for the following reasons, inter alia, at p. 323:

[TRANSLATION] At the outset is must be said that the case at bar is not an ordinary constitutional question: we are not concerned here with the usual conflict between the jurisdiction of the federal government and one of the provinces, the jurisdictional conflict between two provinces or a province which is alleged to be legislating beyond the limits of the powers conferred by s. 92 of the B.N.A. Act.

Rather, this is a very special case (like that of s. 133 of the B.N.A. Act), in which the legislation being challenged is said to be contrary to a constitutional guarantee.

Accordingly, the question is not simply a constitutional one, it involves a guaranteed right, like the language right (133).

In the case of a constitutional guarantee, such as language or religion, it will suffice that a person appears prima facie to have been deprived of a right for him to be absolutely entitled to the remedy of an injunction. This follows from the very nature of the constitutional guarantee. When a right is constitutionally guaranteed, it is indefeasible, however extreme the consequences...[Emphasis added.]

63. The Quebec Court of Appeal reversed the Superior Court, holding as follows at p. 26:

[TRANSLATION] The Superior Court judge, indicating the reasons for issuing the injunctions, held that the disputed provisions prima facie infringed the constitutional guarantees contained in s. 93 of the British North America Act, and that in that case it will suffice that a person is deprived of a right for him to be absolutely entitled to the remedy of an injunction, without the need of presenting evidence on damage or the balance of convenience.

On reviewing the record and considering the arguments submitted to us by counsel for the parties in connection with the Superior Court judgments, the Court is of the view that the right relied on by the plaintiffs, the applicants for an interlocutory injunction, is not clear, that the questions involved are highly complex ones. There is some doubt as to the scope of the constitutional guarantees relied on and the effect of the injunctions is to suspend the operation of a considerable portion of the law throughout the Province of Quebec. In the circumstances, the presumption that legislation is valid must prevail over the prima facie uncertain right at this stage of the proceedings. [Emphasis added.]

64. It can be seen that, apart from the presumption of constitutionality, the Court of Appeal took into consideration the paralysing impact of the injunction which would have suspended the operation of an important part of the impugned legislation throughout the Province.

65. A somewhat similar situation arose in Metropolitan Toronto School Board v. Minister of Education, supra. Interim measure regulations which provided for the funding of separate schools were challenged as being ultra vires by the school board and the teachers' federation in an application for judicial review. The Divisional Court vacated an order of a single judge prohibiting the expenditure of funds pursuant to the regulations, pending a decision of the Divisional Court on the main application. The following words reflect the interest shown by the Court in the preservation of the educational system (at pp. 293‑94):

On the evidence before this Court as between the applicants, on the one hand, and the Roman Catholic Separate School Boards, teachers, students and parents on the other, the balance of convenience overwhelmingly is in the latter's favour. The disruption of the educational system and its interim funding is, in the opinion of this Court, a matter to be avoided at all costs. [Emphasis added.]

66. Reference can also be made to Pacific Trollers Association v. Attorney General of Canada, [1984] l F.C. 846, where the Trial Division of the Federal Court declined to grant an interlocutory injunction restraining certain Fisheries Officers from enforcing amendments made to the Pacific Commercial Salmon Fishery Regulations, the validity of which had been attacked. And see Attorney General of Canada v. Fishing Vessel Owners' Association of B.C., 1985 5505 (FCA), [1985] 1 F.C. 791, where the Federal Court of Appeal, reversing the Trial Division, dismissed an application for interlocutory injunction restraining Fisheries Officers from implementing the fishing plan adopted under the Fisheries Act, R.S.C. 1970, c. F‑14, and the Pacific Commercial Salmon Fishery Regulations, C.R.C. 1978, c. 823. The plan in question was alleged to be beyond the legislative power of Parliament and beyond the powers conferred by the Fisheries Act. The Court noted at p. 795:

...the Judge assumed that the grant of the injunction would not cause any damage to the appellants. This was wrong. When a public authority is prevented from exercising its statutory powers, it can be said, in a case like the present one, that the public interest, of which that authority is the guardian, suffers irreparable harm; . . .

67. These words of the Federal Court of Appeal amplify, somewhat broadly perhaps, the idea expressed in more guarded language by Browne L.J. in Smith v. Inner London Education Authority, [1978] 1 All E.R. 411, at p. 422:

He [the motion judge] only considered the balance of convenience as between the plaintiffs and the authority, but I think counsel for the authority is right in saying that where the defendant is a public authority performing duties to the public one must look at the balance of convenience more widely, and take into account the interests of the public in general to whom these duties are owed. I think this is an example of the `special factors' affecting the balance of convenience which are referred to by Lord Diplock in American Cyanamid Co v Ethicon Ltd.

68. Similar considerations govern the granting of interlocutory injunctive relief in the context of exemption cases.

69. Ontario Jockey Club v. Smith (1922), 22 O.W.N. 373, is the earliest example I know of an exemption case. The plaintiff club sought an interim injunction restraining the Provincial Treasurer and the Provincial Police Commissioner from collecting from it a provincial tax which was allegedly indirect and ultra vires of the Province or, in the alternative, from closing the club's race track, until a decision was rendered on the merits. Middleton J., concerned with the protection of the public interest, issued the injunction subject to an undertaking by the club to pay into Court from time to time, the amount payable in respect of the taxes claimed.

70. In Campbell Motors Ltd. v. Gordon, 1946 242 (BC CA), [1946] 4 D.L.R. 36, the appellant company sought a declaration that The National Emergency Transitional Powers Act, 1945, S.C. 1945, c. 25, and certain regulations made thereunder for the purpose of [s. 2(1)(c)] "maintaining, controlling and regulating supplies and services, prices, transportation...to ensure economic stability and an orderly transition to conditions of peace" were ultra vires on the ground that the war had come to an end. That appellant company was a used car dealer. It had been convicted four times for contravention to the regulations further to which its licence had been cancelled by the Wartime Prices and Trade Board, three of its motor vehicles had been seized together with certain books and records and it had been prohibited from selling any motor vehicles except with the concurrence of the representative of the Board in Vancouver. By a majority decision, the British Columbia Court of Appeal, confirming the motion judge, refused to continue an ex parte interim injunction restraining members of the Board from prosecuting the company for doing business without a licence and also refused to order the return of the company's seized property. Sidney Smith J.A., who gave the reasons of the majority, wrote at p. 48:

If this injunction were to stand there would be a risk of confusion in the public mind which, in the general interest, should not without good reason be authorized.

71. Robertson J.A., who agreed with the reasons of Sidney Smith J.A., added at p. 47:

Subsection (c) of s. 2 quoted above, showed the extent of the economic affairs of Canada, to which the legislation applies. If an injunction were to be granted, no one can tell the result it might have on the economic position of Canada, as many persons might, in consequence, refuse to obey the law and, when proceeded against, apply for and obtain injunctions and proceed to do as they wish, thus resulting in economic confusion and ultimately in inflation.

72. A more recent example can be found in Black v. Law Society of Alberta (1983), 1983 1001 (AB QB), 144 D.L.R. (3d) 439 (Alta. Q.B.), and Law Society of Alberta v. Black (1984), 1983 ABCA 261, 8 D.L.R. (4th) 346 (Alta. C.A.) The Law Society had adopted two rules, one of which prohibited members from being partners in more than one law firm; the other rule prohibited members residing in Alberta from entering into partnerships with members residing outside Alberta. This latter rule was challenged as being inconsistent with s. 6(2) of the Charter. The Alberta Court of Queen's Bench granted an interlocutory injunction restraining the Law Society from enforcing the two rules against the plaintiff solicitors pending the trial of the action. The Law Society only appealed the order granting the interlocutory injunction with respect to the first rule. In allowing the appeal, Kerans J.A., who delivered the reasons of the Court, wrote at p. 349:

It is correct...that the fact that the injunction is sought against a public authority exercising a statutory power is a matter to be considered when one comes to the balance of convenience. However, we do not agree that the Cyanamid test simply disappears in such a case.

73. The Morgentaler case, supra, is an exemption case involving the Charter which has been quoted and relied upon several times. The plaintiff applicants had opened a clinic offering abortion services, which was not an "accredited hospital" within the meaning of s. 251 of the Criminal Code, R.S.C. 1970, c. C‑34. They commenced an action claiming that s. 251 was inconsistent with the Canadian Charter of Rights and Freedoms and an interim injunction and a permanent injunction. Pending the hearing and disposition of the interim injunction, they sought an "interim interim" injunction restraining the Chief of the Metropolitan Toronto Police Force, the Commissioner of the Ontario Provincial Police, and their servants, agents or any persons acting under their instruction, from investigating, enquiring into, reporting and otherwise acting upon the activities of the plaintiffs referable only to s. 251 of the Criminal Code. Linden J., of the Ontario High Court, dismissed their application and expressed the following opinion on the balance of convenience at pp. 666‑68:

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 criminal 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. N1, 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.

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.

74. The principles followed in the above‑quoted cases have been summarized and confirmed for the greater part by this Court in Gould, supra. Gould, a penitentiary inmate prohibited from voting by s. 14(4)(e) of the Canada Elections Act, R.S.C. 1970 (1st Supp.), c. 14, had commenced an action in the Trial Division of the Federal Court seeking a declaration that the provision in question was invalid as contrary to s. 3 of the Canadian Charter of Rights and Freedoms which provides that every citizen of Canada has the right to vote. With a general election about to be held, the inmate applied for an interlocutory injunction, mandatory in nature, requiring the Chief Electoral Officer and the Solicitor General to allow him to vote by proxy. By a majority decision reversing the Trial Division, the Federal Court of Appeal dismissed his application. Mahoney J., with whom this Court expressed its general agreement, wrote at p. 1139 as follows:

Paragraph 14(4)(e) plainly cannot stand unless, by virtue of section 1 of the Charter, it is found to be a reasonable limit demonstrably justified in a free and democratic society.

75. That the respondent inmate had thus a prima facie case was, however, not considered as conclusive. Mahoney J. went on to consider the general repercussions of the remedy sought by the respondent and dismissed his application for interlocutory injunction on the following grounds, inter alia, to be found at pp. 1139‑40:

To treat the action as affecting only the rights of the respondent is to ignore reality. If paragraph 14(4)(e) is found to be invalid in whole or part, it will, to that extent, be invalid as to every incarcerated prisoner in Canada. That is why, with respect, I think the learned Trial Judge erred in dealing with it as though the application before her was a conventional application for an interlocutory injunction to be disposed of taking account of the balance of convenience as between only the respondent and appellants.

76. And, as we have already seen above, Mahoney J. went on to hold that the interlocutory injunction should be refused for the additional reason that it decided the merits, a matter that should not be resolved at the interlocutory stage.

77. The same principles have been followed recently in Bregzis v. University of Toronto (1986), 9 C.C.E.L. 282, where the applicant, an associate librarian, was retired involuntarily from his employment with the university, when he reached the age of sixty‑five, in accordance with the university's mandatory retirement policy. He challenged the legality of the retirement policy as well as s. 9(a) of the Human Rights Code, 1981, S.O. 1981, c. 53, on the ground that they offended s. 15 of the Canadian Charter of Rights and Freedoms. In his reasons, Osborne J. of the Ontario Supreme Court referred to judgments in both Morgentaler, supra, and Gould, supra, and agreed that "the spectrum of concern on the balance of convenience issue must be wider than the issue joined by the parties themselves" (p. 286).

78. Another case involving facts somewhat similar to Bregzis is Vancouver General Hospital v. Stoffman (1985), 1985 778 (BC CA), 23 D.L.R. (4th) 146, where the plaintiffs, fifteen doctors with active medical practices, contested the validity of a hospital regulation approved by the Minister of Health pursuant to the Hospital Act, R.S.B.C. 1979, c. 176, and under the authority of which their admitting privileges had been terminated because they were over the age of sixty‑five. The regulation allegedly constituted discrimination based on age in violation of s. 15(1) of the Canadian Charter of Rights and Freedoms. In a unanimous judgment, the British Columbia Court of Appeal confirmed the judgment of the Supreme Court of British Columbia which had granted the doctors an interlocutory injunction restraining the hospital from interfering with their privileges pending termination of the issue. While the Court of Appeal did not explicitly refer to the public interest, it nevertheless showed its concern for the safety of the fifteen respondents' patients in holding that "All of the doctors were in good health at the material time" (at p. 154).

79. Finally, in Rio Hotel Ltd. v. Liquor Licensing Board, [1986] 2 S.C.R. ix, Rio Hotel Ltd. which had admittedly violated the conditions of its liquor permit relating to the presence of nude dancers on the premises, challenged the validity of those conditions on the basis of the Charter as well as of ss. 91 and 92 of the Constitution Act, 1867. It had lost in the New Brunswick Court of Appeal and was threatened with the cancellation of its permit when, in an unreported judgment dated July 31, 1986, this Court granted it leave to appeal as well as a stay of proceedings before the Liquor Licensing Board, pending the determination of its appeal. The stay was granted subject to compliance with an expedited schedule for filing the materials and for hearing the appeal. No reasons were given by this Court but those who were present at the oral argument of the application for leave to appeal and for a stay could easily infer from exchanges between members of the Court and counsel that the Court was alive to the enforcement problems created for the New Brunswick Liquor Licensing Board with respect to licence holders other than the Rio Hotel.

(iii) Conclusion

80. It has been seen from what preceeds that suspension cases and exemption cases are governed by the same basic rule according to which, in constitutional litigation, an interlocutory stay of proceedings ought not to be granted unless the public interest is taken into consideration in the balance of convenience and weighted together with the interest of private litigants.

81. The reason why exemption cases are assimilated to suspension cases is the precedential value and exemplary effect of exemption cases. Depending on the nature of the cases, to grant an exemption in the form of a stay to one litigant is often to make it difficult to refuse the same remedy to other litigants who find themselves in essentially the same situation, and to risk provoking a cascade of stays and exemptions, the sum of which make them tantamount to a suspension case.

82. The problem had already been raised in the Campbell Motors case, supra, where Robertson J.A. wrote at p. 47 in the above‑quoted passage:

If an injunction were to be granted, no one can tell the result it might have on the economic position of Canada, as many persons might, in consequence, refuse to obey the law and, when proceeded against, apply for and obtain injunctions and proceed to do as they wish....

83. In a case like the Morgentaler case, supra, for instance, to grant a temporary exemption from the provisions of the Criminal Code to one medical doctor is to make it practically impossible to refuse it to others. This consideration seems to have been very much in the mind of Linden J. in that case where, passing from the particular to the general, he wrote at p. 667:

It is contended in this application that the courts should halt all prosecution (and even investigation) of alleged offences ... Such a step would grant to potential offenders an immunity from prosecution in the interim and perhaps forever.

84. This being said, I respectfully take the view that Linden J. has set the test too high in writing in Morgentaler, supra, that it is only in "exceptional" or "rare" circumstances that the courts will grant interlocutory injunctive relief. It seems to me that the test is too high at least in exemption cases when the impugned provisions are in the nature of regulations applicable to a relatively limited number of individuals and where no significant harm would be suffered by the public: it does not seem to me, for instance, that the cases of Law Society of Alberta v. Black, supra, and Vancouver General Hospital v. Stoffman, supra, can be considered as exceptional or rare. Even the Rio Hotel case, supra, where the impugned provisions were broader, cannot, in my view, be labeled as an exceptional or rare case.

85. On the other hand, the public interest normally carries greater weight in favour of compliance with existing legislation in suspension cases when the impugned provisions are broad and general and such as to affect a great many persons. And it may well be that the above mentioned test set by Linden J. in Morgentaler, supra, is closer to the mark with respect to this type of case. In fact, I am aware of only two instances where interlocutory relief was granted to suspend the operation of legislation and, in my view, these two instances present little precedent value.

86. One of these instances is Home Oil Distributors Ltd. v. Attorney‑General for British Columbia, supra, where the majority of the British Columbia Court of Appeal confirmed the granting of an interlocutory injunction restraining the enforcement of the Coal and Petroleum Products Control Board Act, S.B.C. 1937, c. 8, pending final determination of the validity of this statute which regulated the price at which gasoline could be sold in the province. The impugned legislation was intra vires on its face. The sole ground invoked against it was that it constituted a colourable attempt to regulate the international oil industry and to foster the local coal industry at the expense of that of foreign petroleum. And the sole evidence of this colourable intent was the interim report of a Royal Commission made prior to the passing of the statute. In Home Oil Distributors Ltd. v. Attorney‑General of British Columbia, 1940 46 (SCC), [1940] S.C.R. 444, this Court looked at the report of the Royal Commission but it upheld the validity of the legislation. The granting of an interlocutory injunction by the motion judge, confirmed by the Court of Appeal, in a case of this nature, is an early and perhaps the first example where this was done in Canada. In a strong dissent, McQuarrie J.A. was the only judge who dealt at any length with the public interest aspect of the case and underlined the one million dollars a year cost of the injunction to the public. The decision seems to have been regarded as an isolated one in the Campbell Motors case, supra, at p. 48, in a passage that may amount to a veiled criticism. In my view, the Home Oil Distributors decision of the British Columbia Court of Appeal constitutes a weak precedent.

87. The other instance is Société Asbestos Ltée c. Société nationale de l'amiante, [1979] C.A. 342, where the Quebec Court of Appeal, reversing the Superior Court, issued an interlocutory injunction restraining the Attorney General and any other person, physical or corporate, from enforcing any right conferred upon them by Bill No. 70, Loi constituant la Société nationale de l'amiante and by Bill No. 121, Loi modifiant la Loi constituant la Société nationale de l'amiante, pursuant to which the appellant's property could be expropriated and the constitutional validity of which had been challenged in a declaratory action. The two statutes in question had been enacted in the French language only, in violation of s. 133 of the Constitution Act, 1867, and the Court of Appeal immediately came to the firm conclusion that, on that account, they were invalid. This is one of those exceptional cases where the merits were in fact decided at the interlocutory stage.

88. In short, I conclude that in a case where the authority of a law enforcement agency is constitutionally challenged, no interlocutory injunction or stay should issue to restrain that authority from performing its duties to the public unless, in the balance of convenience, the public interest is taken into consideration and given the weight it should carry. Such is the rule where the case against the authority of the law enforcement agency is serious, for if it were not, the question of granting interlocutory relief should not even arise. But that is the rule also even where there is a prima facie case against the enforcement agency, such as one which would require the coming into play of s. 1 of the Canadian Charter of Rights and Freedoms.

89. I should point out that I would have reached the same conclusion had s. 24 of the Charter been relied upon by counsel. Assuming for the purpose of the discussion that this provision applies to interlocutory relief in the nature of the one sought in this case, I would still hold that the public interest must be weighed as part of the balance of convenience: s. 24 of the Charter clearly indicates that the remedy sought can be refused if it is not considered by the court to be "appropriate and just in the circumstances".

90. On the whole, I thus find myself in agreement with the following excerpt from Sharpe, op. cit., at pp. 176‑77:

Indeed, in many situations, problems will arise if no account is taken of the general public interest where interlocutory relief is sought. In assessing the risk of harm to the defendant from an interlocutory injunction which might later be dissolved at trial, the courts may be expected to be conscious of the public interest. Too ready availability of interlocutory relief against government and its agencies could disrupt the orderly functioning of government.

91. I would finally add that in cases where an interlocutory injunction issues in accordance with the above‑stated principles, the parties should generally be required to abide by the dates of a preferential calendar so as to avoid undue delay and reduce to the minimum the period during which a possibly valid law is deprived of its effect in whole or in part. See in this respect Black v. Law Society of Alberta, supra, p. 453, and the Rio Hotel case, supra.

V Review of the Judgments of the Courts Below

92. Finally, it is now appropriate to review the judgments of the courts below in light of the principles set out above.

93. The main legislative provision under attack is s. 75.1 of The Labour Relations Act of Manitoba, enacted in S.M. 1984‑85, c. 21, s. 37, which enables the Board to settle the provisions of a first collective agreement. It is alleged by the employer that these provisions in question violate ss. 2(b), (d) and 7 of the Canadian Charter of Rights and Freedoms relating respectively to freedom of expression, freedom of association, liberty and security of the person. The Manitoba Court of Appeal has taken the view that the employer raises "a serious challenge" to the constitutional validity of the impugned provision and all the parties have conceded that the constitutional challenge is indeed a serious one. The test of a "serious question" applicable in a constitutional challenge of a law has therefore been met.

94. The "irreparable harm" test also clearly appears to have been satisfied.

95. As I read her reasons, Krindle J., at p. 153, implicitly accepted the employer's argument that the imposition of a first contract was susceptible to prejudice its position:

It may give to the union a semblance of bargaining strength which the union does not in fact possess. It may permit the union to benefit from a contract which, left to its own devices, it could not have successfully negotiated. That, however, was the object of the legislation.

96. It is difficult to imagine how the employer can be compensated satisfactorily in damages, for instance for the imposition of possibly higher wages or of better conditions of work, if it is later to be held that the imposed collective agreement is a constitutional nullity.

97. The same observation should be made with respect to the position of the union; as I understand the findings of Krindle J., the very existence of the unit was compromised without the imposition of a first collective agreement.

98. Krindle J.'s findings of facts have not been questioned by the Court of Appeal and it is not for this Court to review these findings.

99. Krindle J. then considered the balance of convenience and I refer in this respect to the above‑quoted parts of her reasons for judgment. I am of the view that she applied the correct principles. More particularly, at p. 154, she looked at the public interest and at the inhibitory impact of a stay of proceedings upon the Board, in addition to its effect upon the employer and the union:

It would seem to me that the granting of a stay in this case would invite the granting of stays in most other cases of applications for first agreements or applications involving the mandatory inclusion of sections within negotiated agreements. In effect, for a two or three year period, prior to any finding of invalidity of those sections, their operation would be suspended, suspended in circumstances where the status quo cannot, practically speaking, be maintained.

In my opinion, in both the circumstances of this particular case and more generally, the balance of convenience favours proceeding as though the sections were valid unless and until the contrary is found.

100. While this is an exemption case, not a suspension case, and each case, including a fortiori an exemption case, turns on its own particular facts, yet, the inconvenience suffered by the parties is likely to be quite similar in most cases involving the imposition of a first collective agreement. Accordingly, the motion judge was not only entitled to but required to weigh the precedential value and exemplary effect of granting a stay of proceedings before the Board. I have not been persuaded that she committed reversible error in concluding that "the granting of a stay in this case would invite the granting of stays in most other cases of applications for first agreements".

101. I now turn to the reasons of the Court of Appeal. I repeat that the Court of Appeal did not find any error of facts or law in the judgment of Krindle J. nor any abuse of her discretion. The main consideration which appears to have been present in the mind of the Court of Appeal is the issue of delay in disposing of the merits.

102. Thus, the Court of Appeal observed that it was open to the Board to direct a reference to the Court of Appeal "in order to expedite matters and obtain a decision on the validity of the legislation" and it noted that the Board declined to do so. I would not go so far as to say that this was not a relevant consideration but it was anything but determinative.

103. According to the reasons of the Court of Appeal, at p. 182, the Canadian Labour Congress, which had obtained leave to intervene on the merits,

...wished to present a considerable amount of evidence relative to the question which might arise as to whether the impugned legislation is a reasonable limit "prescribed by law as can be demonstrably justified in a free and democratic society" in accordance with s. l of the Charter of Rights and Freedoms.

104. The appellate level is not the conventional forum for the adducing of evidence and the case may not have appeared to the Board to be a clearly appropriate one for a direct reference to the Court of Appeal. In any event, what matters is not so much the attitude or conduct of the Board in declining to request a reference to the Court of Appeal as the impact of a stay upon the litigants who came within the purview of the Board's authority and upon the public in general. To repeat what was said by Browne L.J. in Smith v. Inner London Education Authority, supra, at p. 422:

...where the defendant is a public authority performing duties to the public one must look at the balance of convenience more widely, and take into account the interests of the public in general to whom these duties are owed.

105. The other new factors which were not before the motion judge and on the basis of which the Court of Appeal purported to exercise fresh discretion are also all related to the issue of delay. I find it convenient here to repeat part of the above‑quoted reasons of the Court of Appeal (pp. 182‑83):

By its originating notice of motion, the employer raises a serious challenge to the constitutional validity of various sections of the Labour Relations Act. As previously noted, other provisions in the Act are under attack in other litigation. When Krindle, J., denied the initial request for a stay order, she was not made aware of either the proposed new intervention in this case by the Canadian Labour Congress, nor the other challenges to the Act, based upon the Charter in other litigation.

There is also a new factor, in that the merits of the attack on the legislation could have been expedited in the Court of Queen's Bench, and a hearing to determine the validity of the impugned sections could have taken place in late September, but for the intervention of the Canadian Labour Congress.

In short, this is no longer a matter where this court is reviewing a discretionary order made by the learned motions judge. Additional considerations affecting the exercise of discretion have now been raised, allowing this court to exercise a fresh discretion.

In our view it would be unwise to permit the Manitoba Labour Board to impose a new first contract and then some few months later to find the legislation set aside as unconstitutional as being contrary to the Charter.

A stay is therefore granted, with costs in the cause. We urge that the parties proceed with a hearing on the merits of the employer's motion with dispatch.

106. With the greatest of respect, these reasons contain in my view at least two fatal errors of law.

107. In the first place, the Court of Appeal was not justified in substituting its discretion for that of the motion judge on the basis of new facts which were not before the latter.

108. The emergence of new facts after the judgment of first instance must be of such a nature as to substantially affect the decision of the motion judge in order to justify a court of appeal to exercise a fresh discretion. In the case at bar, the Court of Appeal failed to indicate in what respect the new facts affected the judgment of Krindle J. It did not even refer to her reasons. Each of those new facts related to the issue of delay in hearing and deciding the merits, a factor which, as can be seen in her above‑quoted reasons, had been considered and taken into account by Krindle J.

109. The House of Lords has recently emphasized the limits imposed upon a Court of Appeal in substituting its discretion to that of a motion judge with respect to the granting of an interlocutory injunction, even in a case where the Court of Appeal has the benefit of additional evidence: Hadmor Productions Ltd. v. Hamilton, [1982] l All E.R. 1042. In this latter case, which presents striking similarities with the case at bar, the Court of Appeal had held it was justified in exercising fresh discretion in view of additional evidence adduced before it, and had set aside the decision of the motion judge without commenting upon it. The House of Lords restored the judgment of first instance in a unanimous judgment delivered by Lord Diplock:

Before adverting to the evidence that was before the judge and the additional evidence that was before the Court of Appeal, it is I think appropriate to remind your Lordships of the limited function of an appellate court in an appeal of this kind. An interlocutory injunction is a discretionary relief and the discretion whether or not to grant it is vested in the High Court judge by whom the application for it is heard. On an appeal from the judge's grant or refusal of an interlocutory injunction the function of an appellate court, whether it be the Court of Appeal or your Lordships' House, is not to exercise an independent discretion of its own. It must defer to the judge's exercise of his discretion and must not interfere with it merely on the ground that the members of the appellate court would have exercised the discretion differently. The function of the appellate court is initially one of review only. It may set aside the judge's exercise of his discretion on the ground that it was based on a misunderstanding of the law or of the evidence before him or on an inference that particular facts existed or did not exist, which, although it was one that might legitimately have been drawn on the evidence that was before the judge, can be demonstrated to be wrong by further evidence that has become available by the time of the appeal, or on the ground that there has been a change of circumstances after the judge made his order that would have justified his acceding to an application to vary it. Since reasons given by judges for granting or refusing interlocutory injunctions may sometimes be sketchy, there may also be occasional cases where even though no erroneous assumption of law or fact can be identified the judge's decision to grant or refuse the injunction is so aberrant that it must be set aside on the ground that no reasonable judge regardful of his duty to act judicially could have reached it. It is only if and after the appellate court has reached the conclusion that the judge's exercise of his discretion must be set aside for one or other of these reasons that it becomes entitled to exercise an original discretion of its own.

In the instant case no deference was paid, no reference was even made, to the reasons given by Dillon J. for exercising his discretion in the way that he had done. The explanation given by Lord Denning MR why the Court of Appeal was entitled to ignore that judge's reasons for his decision was that in the interval between the hearing of the motion and the hearing of the appeal both sides had adduced further evidence `so virtually we have to consider it all afresh'.

My Lords, with great respect, I cannot agree that the production of additional evidence before the Court of Appeal, all of which related to events that had taken place earlier than the hearing before Dillon J, is of itself sufficient to entitle the Court of Appeal to ignore the judge's exercise of his discretion and to exercise an original discretion of its own. The right approach by an appellate court is to examine the fresh evidence in order to see to what extent, if any, the facts disclosed by it invalidate the reasons given by the judge for his decision. Only if they do is the appellate court entitled to treat the fresh evidence as constituting in itself a ground for exercising an original discretion of its own to grant or withhold the interlocutory relief. In my view, if this approach had been adopted by the Court of Appeal in the instant case the additional evidence, so far from invalidating, would have been seen to provide additional support for Dillon J's reasons for refusing the interlocutory injunctions. [p. 1046.]

(See, also to the same effect, Garden Cottage Foods Ltd. v. Milk Marketing Board, [1983] 2 All E.R. 770 (H.L.))

110. I have no hesitation in holding that the Manitoba Court of Appeal erred in thus substituting its discretion to that of the motion judge and, on this sole ground, I would allow the appeal.

111. But there is more.

112. The Court of Appeal did not exercise its fresh discretion in accordance with the above‑stated principles. It did not itself proceed to consider the balance of convenience nor did it consider the public interest as well as the interest of the parties. It only urged the parties to be expeditious. But urging or even ordering the parties to be expeditious does not dispense from weighing the public interest in the balance of convenience. It simply attenuates the unfavourable consequences of a stay for the public where those consequences are limited.

113. The judgment of the Court of Appeal could be construed as meaning that an interlocutory stay of proceedings may be granted as a matter of course whenever a serious argument is invoked against the validity of legislation or, at least, whenever a prima facie case of violation of the Canadian Charter of Rights and Freedoms will normally trigger a recourse to the saving effect of s. 1 of the Charter. If this is what the Court of Appeal meant, it was clearly in error: its judgment is in conflict with Gould, supra, and is inconsistent with the principles set out herein.

VI Conclusions

114. I would allow the appeal and set aside the stay of proceedings ordered by the Manitoba Court of Appeal.

115. There should be no order as to costs.

Appeal allowed.

Solicitor for the appellant: Tanner Elton, Winnipeg.

Solicitors for the respondent Metropolitan Stores (MTS) Limited: Thompson, Dorfman, Sweatman, Winnipeg.

Solicitors for the respondent Manitoba Food and Commercial Workers, Local 832: Simkin, Gallagher, Winnipeg.

Solicitor for the respondent The Manitoba Labour Board: David Gisser, Winnipeg.