Doyon, Gagné, Hardy

Appeal from a judgment of the Superior Court granting in part an application for a safeguard order. Allowed.

Following the relocation of the Royal Victoria Hospital’s operations in 2015, the Société québécoise des infrastructures (SQI) undertook major work to repurpose the site of the former hospital and of the former Allan Memorial Institute. The respondents, from the Mohawk Nation, suspected that the site could contain the graves of Indigenous children, and brought proceedings against the appellants seeking to stop the renovation plans of the site. The trial judge granted in part the application for an interlocutory injunction and ordered the appellants to suspend excavation until the parties had completed discussions regarding the archaeological investigations to be conducted.

On April 6, 2023, after intense negotiations, the parties signed an agreement terminating the injunctive component of the respondents’ proceedings. This transaction, which provided, among other things, for the appointment of a panel of archeologists, whose mandate was to identify the archeological techniques to be used, was homologated. In the summer of 2023, a disagreement arose regarding the scope of the panel’s role under the agreement. At a case management conference, the respondents expressed their dissatisfaction with the implementation of the agreement. They then filed an application, which gave rise to the judgment under appeal.

The trial judge ordered the appellants to abide by the settlement agreement and to be guided by the recommendations of the panel of archaeologists. The appellants submit that the judge erred on the criteria of appearance of right and serious or irreparable harm. They also argue that the judge’s safeguard order has no correlation to the conclusions sought on the merits, cannot be enforced, and amounts to a structural injunction.

It is not necessary to address all of the arguments raised by the parties. The judge misapprehended the scope of his power to make safeguard orders. The fact that the judge was seized of the respondents’ application in his capacity as case management judge does not mean that his decision is a case management measure, nor does it have the effect of granting him powers he would not otherwise have.

Under the guise of a case management measure, he decided the parties’ rights under the agreement and appropriated the power to supervise the application of the agreement without a genuine debate on the merits. His ruling goes well beyond a case management measure. Faced with a dispute between the parties on the scope of the panel’s role, he interpreted the agreement and ordered the appellants to comply therewith. In so doing, he decided the parties’ rights under the agreement.

The order rendered is akin to a structural injunction, a remedy that will be granted only in compelling circumstances and only after a final ruling on the scope of the rights in question.

Last, the order is not enforceable. It does not clearly indicate to the appellants what they must do in order to comply with it. This could lead to difficulties in interpreting and applying the order, in addition to exposing the appellants to a finding of contempt of court.

This is therefore one of the rare instances in which the Court is justified in exercising its jurisdiction as a reviewing court in respect of a safeguard order.

Text of the decision: http://citoyens.soquij.qc.ca