T-948-76
Mario Carota (Plaintiff)
v.
Donald Jamieson, Marcel Lessard, and the Attor
ney General of Canada (Defendants)
Trial Division, Marceau J.—Summerside, October
31 and November 1; Ottawa, November 30, 1978.
Crown — Prerogative writs — Agreement between Canadian
and P.E.I. Governments for implementation of second phase of
Comprehensive Development Plan attacked — No provision
for participation by Island individuals and groups — Plaintiff
seeking: (1) declaration that agreement null and void, (2)
injunction against expenditure of federal funds, (3) mandamus
directing current Minister to correct deficiency and (4) punitive
damages — Department of Regional Economic Expansion Act,
R.S.C. 1970, c. R-4, ss. 7, 8 — Appropriation Act No. 5, 1973,
S.C. 1973-74, c, 47, Schedule, Vote no. 11a.
This action attacks the agreement that had been entered into
between the Government of Canada and the Government of
Prince Edward Island for the implementation of the second
phase of the Comprehensive Development Plan. This action is
based on the ground that the agreement had been formulated
and entered into without any provision for the participation, in
the implementation of the plan, of any individuals, voluntary
groups, agencies, or bodies in Prince Edward Island, contrary
to section 7 of the Department of Regional Economic Expan
sion Act. The reliefs sought are: (1) a declaration that the
agreement was null and void, (2) an injunction against the
expenditure of federal funds until the required provisions were
made, (3) a writ of mandamus directing the actual Minister to
make the provisions necessary to correct the deficiency, (4)
punitive damages in the amount of $100,000.
Held, the action is dismissed. The legislative power the
Minister needed to negotiate and enter into the agreement
under attack could in no way derive from section 7, since not
only had the Province as a whole never been designated as a
special area, but the agreement itself cannot be seen as the
"formulation of a plan in cooperation with other branches of
the Government of Canada" and did not concern itself with a
direct intervention of the central government. If the authority
of the Minister to enter into the agreement were to be found in
the DREE Act, only section 8 could be resorted to. It has no
mandatory requirements that provisions be made for the coop
eration with the Province and the participation of groups and
individuals when the power conferred by section 8 is exercised.
The authority of the Minister to enter into the 1975 agreement,
however, need not be found in the DREE Act. To give effect to
the requirement embodied in the original 1969 agreement that
it be amended before its expiration, the Minister had no need of
any further legislative authority than that conferred on him by
the Appropriation Act No. 5, 1973.
ACTION.
COUNSEL:
Mario Carota for himself.
Joseph A. Ghiz for defendants Jamieson and
Lessard.
Robert P. Hynes for defendant Attorney Gen
eral of Canada.
SOLICITORS:
Mario Carota for himself.
Scales, Ghiz, Jenkins & McQuaid, Charlotte-
town, for defendants Jamieson and Lessard.
Deputy Attorney General of Canada for
defendant Attorney General of Canada.
The following are the reasons for judgment
rendered in English by
MARCEAU J.: The plaintiff is a citizen of Sum-
merside, in the Province of Prince Edward Island.
Three years ago, he decided that the only way for
him to make his point was to resort to the courts.
He deplored that a fifteen-year Comprehensive
Development Plan, devised to be implemented by
means of a development strategy and through the
commitment of federal funds, was being carried
out in the Province without the participation of
volunteer groups, agencies, bodies or individuals
residing on the Island. In his view, such participa
tion was required by the Act under which the plan
had been formulated and the agreement for its
implementation entered into between the Govern
ments of Canada and Prince Edward Island.
He first launched an action against Her Majesty
the Queen in right of Canada seeking a declaration
that "all the acts and agreements executed there-
under" relating to the formulation and implemen
tation of the said Development Plan had "been
illegally breached by the Defendant". This action
was however dismissed, on a motion to strike out,
on the grounds that the relief sought could bring
no tangible and real benefit to the plaintiff who,
moreover, possessed no locus standi in the pro-
ceedings since he had no special personal and real
right or interest in their outcome.
The plaintiff was not deterred. He commenced a
second action, taking care to avoid the errors he
had committed in the first one. This time his
attack was aimed at one specific instrument,
namely the agreement that had been entered into
between the Government of Canada and the Gov
ernment of Prince Edward Island on the 23rd day
of October, 1975, for the implementation of the
second phase of the Comprehensive Development
Plan. The former and actual Ministers of Regional
Economic Expansion were made the parties-
defendants, the first as having been the Minister
responsible for the negotiations which led to the
agreement, the second as the signatory to the
agreement on behalf of the Government of
Canada. The action was again based on the ground
that the agreement had been formulated and
entered into without any provision therein for the
participation, in the implementation of the plan, of
any individuals, voluntary groups, agencies, or
bodies in Prince Edward Island, contrary to the
mandatory requirement of section 7 of the Depart
ment of Regional Economic Expansion Act,
R.S.C. 1970, c. R-4. The reliefs sought were (1) a
declaration that the agreement was null and void,
(2) an injunction against the expenditure of feder
al funds for the purpose of implementing the
agreement until the required provisions were
made, (3) a writ of mandamus directing the actual
Minister to make the provisions necessary to cor
rect the deficiency and (4) punitive damages in the
amount of $100,000.
This second action again was met by a motion to
strike out, but this time the motion failed. Noting
the differences between the two actions, as to their
respective causes, the particular statutory provi
sions relied upon, as well as the reliefs sought, the
Motion Judge rejected the submission of res
judicata and ruled that the issue was an arguable
one which ought not to be disposed of summarily,
while the question of standing should be the sub
ject of full evidence, argument and deliberation at
trial.
It is this action that we are concerned with here.
Before it became ready for trial, it went through a
long series of interlocutory proceedings, two of
which gave rise to appeals. The Attorney General
was eventually added as a party-defendant, his
presence being required in view of the declaratory
relief sought. It was finally set down for hearing at
Summerside, October 21 and November 1, 1978.
The evidence adduced at trial was very brief.
The relevant documents were all produced by con
sent at the outset. The plaintiff, not represented by
counsel, gave his own testimony. He spoke of his
training and experience in the field of citizen
participation in government programs, and
described his interest in the action as a citizen of
Prince Edward Island who felt that his powers,
duties and functions in the formulation and carry
ing out of the plan agreement of 1975 had been
interfered with. He had previously called as a
witness a university professor who, for a few years
prior to 1975, had been president of a Rural
Development Council for the Province whose role
was that of public participation and which appar
ently had set up various committees involved in the
implementation of the Comprehensive Plan. That
was all.
In fact, the pleadings had left no question that
required evidence. The absence in the impugned
agreement of any special provisions for the partici
pation of groups and individuals was sufficiently
established by the mere production of the instru
ment itself, and in any event, the defendants had
promptly admitted it as a fact. Indeed, in their
statement of defence, the defendants had simply
denied that, in formulating and entering into the
1975 agreement, the Ministers responsible were
required by law to make special provisions for the
participation of groups and individuals, adding, as
an alternative answer, that the plaintiff had no
locus standi in the proceedings. As the pleadings
stood therefore, there was a basic issue raising a
strict question of law, and an alternative one,
which might call for the exercise of a certain
discretionary power of the Court, but nevertheless
was also to be solved according to legal principles
and guidelines defined by the jurisprudence.
Now that the action can be seen in its true
perspective and the controversy better understood,
I turn to the basic issue.
In 1966, Parliament enacted "An Act to provide
for the establishment of a fund for the economic
and social development of special rural develop
ment areas". The Fund for Rural Economic De
velopment Act, S.C. 1966-67, c. 41, authorized the
Minister of Forestry, (who was to become the
Minister of Forestry and Rural Development), on
the recommendation of an Advisory Board and
with the approval of the Governor in Council, to
enter into an agreement with any province provid
ing for, inter alia, "the undertaking jointly with
the province or any agency thereof of a compre
hensive rural development program in a special
rural development area". Section 5 of the Act
contained the following definitions:
5. For the purposes of this Act,
(a) a comprehensive rural development program is a pro
gram, consisting of several development projects, that is
designed to promote the social and economic development of
a special rural development area and to increase income and
employment opportunities and raise living standards in the
area, and that makes provision for participation by residents
of the area in the carrying out of the program; and
(b) a special rural development area is a predominantly
rural area within a province that is designated in an agree
ment between the province and the Minister under section 4
to be an area of widespread low incomes resulting from
economic and social adjustment problems and that, in the
opinion of the Board based on information submitted by the
province with respect to physical, economic and social condi
tions in the area, has a reasonable potential for economic and
social development.
On March 7, 1969, pursuant to the authority
conferred by this 1966 statute, an agreement for a
Comprehensive Development Plan for the econom
ic expansion and social adjustment of Prince
Edward Island was entered into by the Govern
ment of Canada, represented by the Minister of
Forestry and Rural Development, and the Govern
ment of Prince Edward Island. The expiry date of
the agreement was set to be 1984 but it was
provided that: "this Agreement may from time to
time be reviewed by the Parties hereto and, if
believed necessary, with the approval of the Gover
nor in Council and the Lieutenant-Governor in
Council, may be amended; but in any event, the
Agreement shall be reviewed before March 1972".
To the agreement were attached, as Schedule A, a
First Memorandum of Implementation, and as
Schedule C, a document outlining the basic ideas
and the structure of the plan.
On December 4, 1969, the two Governments
formally agreed to amend the First Memorandum
of Implementation attached to the original agree
ment. Canada was then represented by the Minis
ter of Regional Economic Expansion. Indeed, by
the Government Organization Act, 1969, S.C.
1968-1969, c. 28, assented to a few months earlier,
a new Department of Regional Economic Expan
sion had been constituted (Part IV of the Act) and
its presiding Minister had been assigned inter alia
some of the responsibilities of the Minister of
Forestry and Rural Development (section 102).
This Part IV of the Government Organization Act,
1969, was to become the Department of Regional
Economic Expansion Act (the DREE Act) in
R.S.C. 1970, c. R-4, the provisions of which are
directly relevant to the debate herein. But before
coming to the DREE Act, it is, I believe, prefer
able to give a complete account of the progress of
the plan and the several agreements entered into
with respect thereto.
Following the 1969 amendment to the First
Memorandum of Implementation, an Appendix A
was added thereto to be effective April 1, 1971.
Then, on June 21st, 1971, the two Governments
agreed on an "Amendment No. 1" to the original
1969 agreement itself and, two years later, on June
5, 1973, on an "Amendment No. 2", in both
occasions, the Government of Canada being repre
sented by the Minister of Regional Economic
Expansion, duly authorized by special ad hoc
orders in council.
That takes us to the impugned agreement. This
one was signed on the 23rd of October, 1975, and
its subject matter was an "Amendment No. 3" to
the original 1969 agreement. Again, it was signed
by the Minister of Regional Economic Expansion
who had been especially authorized to enter into it
on behalf of the Government of Canada by Order
in Council P.C. 1975-3/2195.
The plaintiffs challenge of this last agreement is
based, as aforesaid, on the contention that the
authority of the Minister of Regional Economic
Expansion to negotiate and enter into it for the
Government of Canada was to be found in section
7 of the DREE Act (a verbatim reproduction of
section 25 of the Government Organization Act,
1969, by virtue of which the department had been
created). The section reads as follows:
7. (1) In exercising his powers and carrying out his duties
and functions under section 5, the Minister shall
(a) in cooperation with other departments, branches and
agencies of the Government of Canada, formulate plans for
the economic expansion and social adjustment of special
areas; and
(b) with the approval of the Governor in Council, provide for
coordination in the implementation of those plans by depart
ments, branches and agencies of the Government of Canada
and carry out such parts of those plans as cannot suitably be
undertaken by such other departments, branches and
agencies.
(2) In formulating and carrying out plans under subsection
(1), the Minister shall make provisions for appropriate coopera
tion with the provinces in which special areas are located and
for the participation of persons, voluntary groups, agencies and
bodies in those special areas.
This is the whole of the plaintiffs case: the
provision that would be missing in the impugned
agreement is that required by the above subsection
(2) of section 7. Of course, even if the contention
were well-founded, it would still be open to ques
tion whether the remainder of the plaintiffs rea
soning is acceptable, and particularly whether the
various reliefs he seeks are available to him. But I
will not have to go into that because I am of the
opinion that the contention is definitely wrong.
Indeed, the mere reading of that section 7 of the
DREE Act leaves no doubt in my mind that
Parliament had then in view exclusively those
plans for economic expansion and social adjust
ment of special areas that the Minister would be
called upon to formulate in cooperation with other
branches and agencies of the Government of
Canada and that he would implement and carry
out directly. It seems clear to me that the legisla
tive power the Minister needed to negotiate and
enter into the agreement here under attack could
in no way derive from that section, since not only
had the Province itself as a whole never been
designated as a special area—assuming that that
could have been done under section 6, which I
doubt '—but the agreement itself obviously cannot
be seen as the "formulation of a plan in coopera
tion with other branches of the Government of
Canada", and above all it did not concern itself
with a direct intervention of the central Govern
ment.
If the authority of the Minister to enter into the
agreement of 1975 were to be found in the DREE
Act, only section 8 thereof, I believe, could be
resorted to, whose subsection (1) reads as follows:
8. (1) The Minister may, in cooperation with any province,
formulate a plan of economic expansion and social adjustment
in a special area and, with the approval of the Governor in
Council and subject to the regulations, enter into an agreement
with that province for the joint carrying out of such plan.
Section 8, however, does not contain a provision
similar to that of subsection 7(2). There is no
mandatory requirement that provisions be made
for the cooperation with the province and the
participation of groups and individuals when the
power conferred by section 8 is exercised, which,
to my mind, may be readily understood as the
province itself is then a party to the agreement and
in that capacity is competent to insure that the
interests of its own groups and individuals be taken
into account, or that its citizens be allowed to
participate, if deemed appropriate.
But actually I don't even think that the author
ity of the Minister to enter into the 1975 agree
ment need be found in the DREE Act. The
Appropriation Act No. 5, 1973, S.C. 1973-74, c.
47, includes an item (or a vote) which was adopted
in the following terms:
' Section 6 reads as follows:
6. The Governor in Council, after consultation with the
government of any province, may by order designate as a
special area, for the period set out in the order, any area in
that province that is determined to require, by reason of the
exceptional inadequacy of opportunities for productive
employment of the people of that area or of the region of
which that area is a part, special measures to facilitate
economic expansion and social adjustment.
11a To authorize the Minister of Regional Economic Expan
sion to enter into general development agreements with the
provinces, subject to the approval of the Governor in Council,
to provide measures for economic expansion and social
adjustment in areas in Canada requiring such measures to
improve opportunities for productive employment in those
areas and access to such opportunities, and, in accordance
with such general development agreements and such direc
tions as the Governor in Council may prescribe, to enter into
subsidiary agreements to effect the purposes of the general
development agreements, and to provide contributions as set
out in the general development agreements and subsidiary
agreements, and to authorize the transfer of $14,999,999
from Regional Economic Expansion Vote 10, Appropriation
Act No. 4, 1973, for the purposes of this Vote
In my view, to give effect to the requirement
formally embodied in the original 1969 agreement
that it be amended before its expiration, the Min
ister had no need of any further legislative author
ity than that conferred on him by Vote 11a of the
Appropriation Act No. 5, 1973, and this authority
was subject to no other terms and conditions but
those specified in the item itself (section 3). The
power given by an Appropriation Act is, of course,
as valid and adequate as that conferred by any
specific Act, (Erskine May's Treatise on the Law,
Privileges, Proceedings and Usage of Parliament,
19th ed., 1976, pp. 747 ff.), and such power
embodied in the wording of a vote does not lapse
at the end of the contemplated fiscal year. The
Order in Council P.C. 1975-3/2195, adopted to
give the required executive approval to the 1975
agreement, was right in referring in its preamble
solely to Vote 11a, Appropriation Act No. 5, 1973.
The plaintiff at this point resorted to a final
argument. If, says he, the Appropriation Act can
be said to have given the defendant Lessard the
authority to sign the agreement, it cannot have
been the source of the authority that the defendant
Jamieson needed to cause the agreement to be
negotiated and formulated. Such a proposition
cannot stand, since the authority to sign necessari
ly implies the power to negotiate and formulate.
Of course, one cannot seriously contend that the
Minister was actually given the power to enter into
an agreement on certain terms but still he had not
the power to negotiate it on those terms.
Having found that the plaintiff's basic conten
tion is wrong and that his action has therefore no
legal basis, it would be purely academic for me to
discuss the question of his standing. If the Court of
Appeal is seized of the matter and construes the
law otherwise than I did, it will be in its discretion
to give the plaintiff the status he required, not
withstanding the fact that he was not raising a
constitutional issue nor was his interest any more
special than that of all the citizens of Prince
Edward Island.
The question of costs, however, needs to be
considered. Indeed, it is my opinion that this is a
proper case for the exercise of the discretion given
the Trial Judge in this regard. The taxable costs in
this case have undoubtedly come to a sizeable
amount in view of the nature of the action and the
several proceedings it required to be brought to
maturity. There is obviously no reason why the
defendants should be entirely deprived of that
right of successful litigants to recover part of the
expenses and fees incurred in any action. But, on
the other hand, it seems to me that justice here
requires that the plaintiff be not excessively penal
ized for having, in good faith, tried to assert what
he thought was a lawful right his co-citizens and
himself had been given by Parliament. I will there
fore, in dismissing his action, fix at $850 the
amount to which he will be liable for costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.