Case: Maxwell’s Plumbing and Heating Ltd. v. British Columbia, 2017 BCCA 285 (CanLII)
Keywords: Mootness; Provincial Sales Tax Act, SBC 2012, c 35; Crown Proceeding Act, R.S.B.C. 1996, c. 89); Injunctions Against the Crown
The Appellant appeals the order of a Chambers Judge staying enforcement of a $14,298.88 provincial sales tax assessment against the Respondent (pending the determination of its appeal). The Respondent’s appeal is subsequently dismissed, rendering the underlying Provincial Sales Tax Act, SBC 2012, c 35 issues moot. Despite its mootness, the Province advances the argument that the Court of Appeal should consider the issues on appeal so as to address the precedential value of the Chambers Judge’s order and since other taxpayers will likely pursue the same interim remedy.
The Court of Appeal determines it is appropriate to hear and consider the Province’s first ground of appeal (that because the Chambers Judge’s order restrains the lawful conduct of a government official, it is in the nature of an injunction and thus not available pursuant to s. 11 of the Crown Proceeding Act, R.S.B.C. 1996, c. 89), despite the fact that the matter is moot and the present appeal was conducted without an adversarial context.
The Court of Appeal determines the Chambers Judge’s order is in the nature of an injunction because it broadly prohibits the Province from taking steps to enforce an assessment, including enforcement steps outside of court. As such, the Court of Appeal allows the appeal and sets aside the order.
Citing Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), the Court of Appeal set out the test for determining whether a moot appeal warrants consideration as follows:
- Whether, despite the disappearance of the concrete dispute, an adversarial context continues to exist, such that there remains an assurance that the case will be fully argued before the court;
- Whether judicial economy would be advanced, in some way, by hearing a case notwithstanding that the concrete dispute has been resolved; and
- Whether, in hearing a moot case, the court will be straying into the legislative sphere rather than acting as an adjudicative body. (See para. 9).
With respect to the presence or absence of an adversarial context, the Court of Appeal noted there was no party to respond to/challenge the Province’s submission. (See para. 10). Notwithstanding this point, the Court took into consideration the Province’s submission “…this is as good an opportunity as there is ever likely to be in the future for the Court to decide the question” (See para. 12) and concluded hearing and deciding the merits of this appeal would not risk the Court of Appeal straying into the legislative sphere. (See para. 14).
Ultimately the Court of Appeal determined it was in the public interest for the Court to address the issues raised by the Crown, but only with respect to whether the Chambers Judge’s order was in the nature of an injunction against the Crown – the “narrow question necessary to resolve the appeal”. (See para. 18).
On that substantive question, the Province asserted the “stay order” was, in reality, an injunction restraining the lawful conduct of a government official. As such, the order was not an available remedy against the Crown or a Crown servant, pursuant to s. 11 of the Crown Proceeding Act, R.S.B.C. 1996, c. 89:
Rights of parties and authority of the court
(2) If, in proceedings against the government, relief is sought that might, in proceedings between persons, be granted by way of injunction or specific performance, the court
(a) must not grant an injunction or make an order for specific performance against the government;
(b) may make an order declaring the rights of the parties instead of an injunction or an order for specific performance.
(4) In a proceeding, the court
(a) must not grant an injunction or make an order against an officer of the government if the effect of granting the injunction or making the order would be to give relief against the government that could not have been obtained in proceedings against the government;
(b) may make an order declaring the rights of the parties instead of granting the injunction or making the order. (See para. 25)
Citing Musqueam Indian Band v. British Columbia,  B.C.J. No. 2788, 1987 CarswellBC 3970, Court of Appeal found that (other than in a constitutional case) “there is no question” an injunction cannot be granted against the Crown or against a servant of the Crown acting lawfully in the performance of its duties. (See para. 24).
Since the Chambers Judge’s order “would seem to prevent the Province from pursuing all enforcement remedies against [the Respondent], regardless of whether they relate to a specific court proceeding”, the Court of Appeal agreed the order inappropriately restrained the lawful conduct of a government official and was, therefore, in the nature of an injunction against the Crown. (See para. 29).
The Court of Appeal briefly considered the Province’s argument that a stay of proceedings is not available against the Crown, noting that s. 6 of the Crown Proceeding Act “would seem to authorize the granting of a stay of a judicial proceeding involving the Crown…” (See para. 32). In the absence of “…any clear authority on the availability of a stay against the Crown”, the Court of Appeal exercised caution and declined to determine the question in the absence of an adversarial context. (See para. 33).
Counsel for the Appellant: Veronica Jackson and Shannon Davis (Min. of Justice, Revenue & Taxation Department, Victoria)
Counsel for the Respondent: No Appearance