Test for Injunctive Relief – Mandamus
In this decision, the Alberta Court of Queen’s Bench (“ABQB”) granted an application by Prosper Petroleum Ltd. (“Prosper”) for a mandatory interim injunction and an order of mandamus and directed that a decision on Prosper’s Rigel oil sands project (the “Rigel Project”) be made by Cabinet within ten days. (Note: a stay of this Court decision was subsequently granted by the Court of Appeal. See herein: Prosper Petroleum Ltd. v Her Majesty the Queen in Right of Alberta, 2020 ABCA 85).
In June 2018, the AER found the Rigel Project to be in the public interest and approved it subject to Provincial Cabinet approval.
The requirement of Cabinet authorization is set out in section 10(3)(a) of the Oil Sands Conservation Act (“OSCA”), which provides that:
(3) The [AER] may …
(a) if in its opinion it is in the public interest to do so, and with the prior authorization of the Lieutenant Governor in Council, grant an approval on any terms and conditions that the [AER] considers appropriate.
More than 19 months after the AER’s approval of the project, the Provincial Cabinet had not issued a decision. An Order in Council would be required to enable the Rigel Project to proceed. Prosper, therefore, applied for an order compelling a decision.
Prosper applied for an interlocutory injunction or order of mandamus directing the Provincial Cabinet to issue a decision regarding the Rigel Project within ten days.
Is the Crown Immune from an Order of Injunction or Mandamus?
The ABQB noted that historically, the remedy of injunction was not available against the Crown. However, in modern law, the answer depends on whether the party sought to be enjoined is acting as a servant of the Crown or an agent of the legislature. The ABQB cited authority holding that a mandatory injunction was available against a Minister of the Crown who had failed to perform a public duty because the injunction was not sought against the Crown itself. Further, if a statute imposing a public duty designates a particular Crown servant to perform the duty, mandamus will lie against the designated person.
The ABQB found that the OSCA provides in section 10 that Prosper could only proceed with its project with the authorization of the Lieutenant Governor in Council. By granting Cabinet the power to approve the project, the legislature imposed by implication a duty to exercise that power.
The ABQB concluded that Cabinet was subject to an implied duty to make a decision on the availability of an Order in Council and that Cabinet was acting as an agent of the legislature and must respond to the implied duty assigned to it under the act.
Is the Scope of the Crown’s Discretion Sufficient to Make it Immune from Mandamus?
The ABQB noted that Prosper did not argue that Cabinet does not have discretion in making its decision: Prosper argued that it does not have the discretion to fail to make a decision.
The ABQB further wrote that section 10 of the OSCA does not use the words “in the absolute discretion of Cabinet”. Failing to make a decision that one has a statutory duty to make is not a valid exercise of discretion. The scope of discretion to make a decision cannot extend to the discretion to refuse to make a decision, as that would render the duty to make a decision imposed by the statute meaningless.
The ABQB found that the Crown’s argument conflated discretion over the content of the decision, which is not at issue, with the requirement to actually make a decision. The scope of the Cabinet’s discretion under the OSCA is not so absolute as to make mandamus unavailable.
The Test for an Interlocutory Injunction
The ABQB outlined the recent Supreme Court authority on the test for a mandatory injunction (R. v. Canadian Broadcasting Corp., 2018 SCC 5). In that case, the Supreme Court outlined a modified RJR-MacDonald test:
(a) the applicant must demonstrate a strong prima facie case that it will succeed at trial. This entails showing a strong likelihood on the law, and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the originating notice;
(b) the applicant must demonstrate that irreparable harm will result if the relief is not granted; and
(c) the applicant must show that the balance of convenience favours granting the injunction.
A Strong Prima-Facie Case
The ABQB found that there was no question that the Provincial Cabinet must make a decision regarding the Rigel Project. There was also no question that Cabinet had failed to do so for over 19 months. Therefore, the question of whether Prosper had demonstrated a strong prima facie case depended on whether the 19 months of delay were reasonable or were a breach of Cabinet’s duty to decide. In other words, “whether it is abusive delay, that is an abuse of power”.
The ABQB noted that while the OSCA does not explicitly identify a deadline for issuing a decision, courts have implied a duty to provide a decision within a reasonable time.
In view of the evidence adduced by Prosper and in the absence of any evidence to explain the delay put forth by the Crown, the ABQB found that Prosper satisfied the onus to establish a strong prima facie case that would succeed in arguing that the Cabinet’s delay in making a decision is a breach of its duty under section 10 of the OSCA.
The ABQB noted that irreparable harm refers to the nature of the harm rather than its magnitude. It generally refers to harm that either cannot be quantified in monetary terms or that cannot be cured, usually because one party cannot collect damages from the other. Examples include instances where one party will be put out of business by the Court’s decision.
By irreparable harm, it is not meant that the injury is beyond the possibility of repair by monetary compensation, but it must be of such a nature that no fair and reasonable redress may be had in the court of law and that to refuse the injunction would be a denial of justice.
The ABQB found that the potential of being put out of business is irreparable harm, and also noted that Prosper would not be able to recover the loss it suffers from delay by way of judicial review. The ABQB noted that harm that cannot be cured is irreparable harm and that Prosper had satisfied the onus of establishing it in this case.
Balance of Convenience
The ABQB noted that the balance of convenience test requires it to determine which of the parties will suffer the greater harm from the granting or refusing of an interlocutory injunction.
Prosper provided evidence of significant and irreparable harm. The Crown did not produce any evidence to demonstrate why the decision was delayed. The ABQB found that there was a strong public interest in encouraging a timely Cabinet decision.
Has Prosper Established that it is Entitled to Mandamus?
The ABQB noted that all of the principal requirements that must be satisfied before mandamus will be issued were satisfied in this case.
Proceedings Against the Crown Act, RSA 2000
The ABQB set out the statutory provisions regarding injunctions against the Crown but noted that such provisions are declaratory of the common law and therefore do not introduce any new restrictions on the availability of injunctions against Crown servants.
The ABQB granted Prosper’s application for a mandatory interim injunction and an order of mandamus and directed that a decision on the Rigel Project be made by Cabinet within ten days.