Baier v. Alberta, 2006 SCC 38, [2006] 2 SCR 311

                                                 SUPREME COURT OF CANADA

Between:

Ronald David Baier, George Ollenberger,

Liam McNiff, Evelyn Alexandra Keith and Alberta

Teachers’ Association

Applicants

and

Her Majesty The Queen in Right of Alberta

Respondent

Coram: Rothstein J.

______________________________

Note: Order delivered on July 10, 2006 and revised on July 27, 2006.  Reasons delivered on July 27, 2006.

Baier v. Alberta, [2006] 2 S.C.R. 311, 2006 SCC 38

Ronald David Baier, George Ollenberger,

Liam McNiff, Evelyn Alexandra Keith and Alberta

Teachers’ Association                                                                                    Applicants

v.

Her Majesty The Queen in Right of Alberta                                               Respondent

Indexed as:  Baier v. Alberta

Neutral citation:  2006 SCC 38.

File No.:  31526.

2006:  July 7; 2006: July 10.

Reasons delivered: July 27, 2006.

Present:  Rothstein J.

motion for a stay

Civil procedure — Appeals — Supreme Court of Canada — Stay — Court of Appeal’s judgment declaring constitutional legislative amendments precluding school board employees from running for election as school trustees anywhere in province — Applicants and other school board employees accordingly disqualified from holding their positions as school trustees — Applicants appealing Court of Appeal’s judgment and bringing motion to stay judgment pending leave to appeal — Motion granted — Stay order exempting from operation of relevant legislation school board employees who are presently sitting as school board trustees as result of valid election — Relevant legislation not suspended and remaining operative in all other circumstances.

Cases Cited

Applied: RJR — MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b), (d), 15(1) .

Local Authorities Election Act, R.S.A. 2000, c. L-21, s. 22(1)(b), (1.1) [ad. 2002, c. 23, s. 1].

Rules of the Supreme Court of Canada, SOR/2002-156, Rule 62.

School Trustee Statutes Amendment Act, 2002, S.A. 2002, c. 23, s. 1.

Supreme Court Act, R.S.C. 1985, c. S-26, s. 65.1(1) .

MOTION to stay a judgment of the Alberta Court of Appeal (Picard, Costigan and Ritter JJ.A.) (2006), 57 Alta. L.R. (4th) 205, 384 A.R. 237, 367 W.A.C. 237, [2006] 8 W.W.R. 33, [2006] A.J. No. 447 (QL), 2006 CarswellAlta 491, 2006 ABCA 137.  Motion granted.

Sandra M. Anderson, for the applicants.

Kurt J. W. Sandstrom, for the respondent.

The following are the reasons delivered by

1                                   Rothstein J. — This is an application to stay the effect of a judgment of the Alberta Court of Appeal pending decision by this Court on the application for leave to appeal and if leave is granted pending decision by this Court on the applicants’ appeal.

2                                   Prior to September 20, 2004, the Alberta Local Authorities Election Act, R.S.A. 2000, c. L-21, precluded school board employees from running for election as school trustees only in the jurisdiction in which they were employed.  However, such employees could run for election as school trustees in other jurisdictions (s. 22(1)(b)).

3                                   By amendments to the Act that were to come into force on September 20, 2004, persons who were employed by a school district or division, a charter school or a private school, were not eligible to be nominated as a candidate for election as a trustee of a school board anywhere in Alberta (s. 22(1.1) (added by s. 1 of the School Trustee Statutes Amendment Act, 2002, S.A. 2002, c. 23)).

4                                          The  applicants brought an application in the Alberta Court of Queen’s Bench challenging the constitutionality of the September 20, 2004 amendments applicable to school board employees on the grounds that they infringed the Canadian Charter of Rights and Freedoms  rights of such employees, and in particular of teachers, under ss. 2 (b), 2 (d) and 15(1)  of the Charter  and that such infringements could not be justified under s. 1  of the Charter .

5                                   In a judgment dated September 14, 2004, Sulyma J. declared that the September 20, 2004 amendments in respect of school board employees were contrary to s. 2 (b) of the Charter  and of no force and effect:  (2004), 38 Alta. L.R. (4th) 303, 2004 ABQB 669.

6                                   An application to Sulyma J. by the government to stay her order pending appeal to the Alberta Court of Appeal was denied on September 17, 2004.  As a result of her order, the relevant September 20, 2004 amendments did not come into force.

7                                   The applicants Baier, Ollenberger and McNiff successfully ran for the positions of school trustees in the October 2004 election. 

8                                   By judgment of May 1, 2006, the Alberta Court of Appeal (Costigan J.A., Picard and Ritter JJ.A. concurring) allowed the government’s appeal: (2006), 57 Alta. L.R. (4th) 205, 2006 ABCA 137.  The effect of the judgment of the Court of Appeal is that the relevant amendments precluding school board employees from running for election as school trustees anywhere in Alberta, is constitutionally valid and in force.  As a result, school board employees including Baier, Ollenberger and McNiff became disqualified to hold their positions as school trustees.

9                                   The applicants applied to the Court of Appeal for a stay of its decision pending leave to appeal to the Supreme Court of Canada. By decision of June 13, 2006, Côté J.A., with Costigan J.A., denied the application for a stay: (2006), 26 C.P.C. (6th) 234, 2006 ABCA 187.  However, Côté J.A. observed that there was “little doubt that the Supreme Court could fashion a remedy, and maybe one judge of the Supreme Court could” (para. 14).

10                               By application, filed June 28, 2006, the applicants applied for leave to appeal the May 1 decision of the Court of Appeal to this Court.  At the same time, they applied to this Court for

an order that proceedings be stayed with respect to the judgment from which the leave to appeal is being sought, on the following terms, or such further or other order as the Judge may deem appropriate:

1.  The Reasons for Judgment issued by the Court of Appeal of Alberta on May 1, 2006, and the Judgment Roll filed in the Court of Appeal of Alberta on June 2, 2006, are stayed until such time as the Applicants are advised by this Court of the outcome of their application for leave to appeal;

2.  The individual Applicants may continue to sit as school trustees pending the determination of their application for leave to appeal;

                                                                   . . .

11                               The stay application was heard by me as Rota Judge by way of conference call on July 7, 2006.  The application was granted with these reasons to follow.

Issues

(1)     Is there anything to stay?

12                               Section 65.1(1)  of the Supreme Court Act, R.S.C. 1985, c. S-26 , pursuant to which the stay application is brought provides:

65.1 (1) The Court, the court appealed from or a judge of either of those courts may, on the request of the party who has served and filed a notice of application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought, on the terms deemed appropriate.

At first blush, it would appear that there is nothing to stay. As succinctly explained by Côté J.A. in denying the applicants’ stay application brought to the Court of Appeal: 

But I do not think that there will be any execution or court proceeding here which could be stayed.  Since the first abortive stay motion, the formal judgment of the Court of Appeal has been entered (and so it is too late to amend its substance).  The operative part is four words:  “The appeal is allowed.”  Of course that wipes out the Queen’s Bench judgment of unconstitutionality.  Alberta R. 528(2) provides that a formal judgment of the Court of Appeal is to be entered with Queen’s Bench, and thereupon it is to be treated as if given by the judge appealed from.

Therefore, the plaintiffs have sued, and the Alberta courts have refused to give them any relief, dismissing the suit.  The Alberta courts have done nothing.  Apart from costs, there is no judgment on which to levy execution or conduct further proceedings.  There is nothing to stay. . . . [paras. 11-12]

Nonetheless, this Court has adopted an expansive interpretation of s. 65.1(1)  of the Supreme Court Act  and Rule 62 of the Rules of the Supreme Court of Canada, SOR/2002-156.  Rule 62 (formerly Rule 27) provides:

62.  Any party against whom a judgment has been given, or an order made, by the Court or any other court, may make a motion to the Court for a stay of execution or other relief against such judgment or order, and the Court may give such relief on the terms that may be appropriate.

13                               In RJR — MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Sopinka and Cory JJ. wrote, at p. 329:

We are of the view that the Court is empowered, pursuant to both s. 65.1 and r. 27 [now r. 62], not only to grant a stay of execution and of proceedings in the traditional sense, but also to make any order that preserves matters between the parties in a state that will prevent prejudice as far as possible pending resolution by the Court of the controversy, so as to enable the Court to render a meaningful and effective judgment.  The Court must be able to intervene not only against the direct dictates of the judgment but also against its effects.  [Emphasis added.]

14                               The effect of the judgment of the Court of Appeal is to disqualify those school board employees from carrying out their terms as sitting school trustees.  On the basis of the interpretation of this Court’s authority as established in RJR — MacDonald, I am satisfied that the effect of the judgment of the Court of Appeal may be stayed by this Court.

(2)     May a single judge of this Court grant the stay?

15                               At p. 329 of RJR — MacDonald, Sopinka and Cory JJ. wrote:

Moreover, we cannot agree that the adoption of s. 65.1 in 1992 (S.C. 1990, c. 8, s. 40) was intended to limit the Court’s powers under r. 27.  The purpose of that amendment was to enable a single judge to exercise the jurisdiction to grant stays in circumstances in which, before the amendment, a stay could be granted by the Court.  Section 65.1 should, therefore, be interpreted to confer the same broad powers that are included in r. 27.

I have no difficulty concluding that a single judge may grant the stay sought in this case. 

(3)     Have the applicants satisfied the test for the granting of the stay?

16                               (a)   I need not dwell on the question of serious issue.  The Court of Appeal came to a conclusion opposite to that of the Court of Queen’s Bench.  Both wrote extensive reasons.  It is apparent that there is a serious issue.

(b)               As to irreparable harm, this is not a case in which damages constitute a remedy.  If sitting school trustees are disqualified, they will lose their positions and not have the opportunity of completing their terms and serving those who elected them.  In the unique circumstances of this case in which the government consents to the stay, I am satisfied to find irreparable harm to the applicants.

(c)               As to the balance of the inconvenience, I am directed by RJR — MacDonald to “be sensitive to and cautious of making rulings which deprive legislation enacted by elected officials of its effect” (p. 333).   I must also assume the effect of the Alberta legislation, which I am asked to stay, promotes the public interest (pp. 348-49).  However, the normal reservation against granting a stay that would have such effect is outweighed because of two considerations.  The first is that the government, itself, consents to the stay.  Its reason is the preservation of the integrity of the electoral system.  It says that there is a public interest in avoiding the disruption to that system from the disqualification of sitting trustees.  The second is that sitting trustees were elected by a majority of electors in an election that was valid at the time.  This Court must have regard to the effect upon the public interest of a decision that would disregard the will of the majority of electors in valid elections.  Indeed, it is apparent that there is a public benefit from the granting of a stay.

17                               In my opinion, the caution I must exhibit in considering whether to deprive legislation of its effect and the public interest in recognizing the will of electors in democratic elections can both be accommodated by treating this as an exemption case and not as a suspension case.  Counsel for the applicants was satisfied with this approach.  Counsel for the government specifically asked that the stay be granted on an exemption and not a suspension basis.

18                               In the circumstances, I am of the view that an appropriate stay order would be to exempt from the operation of the relevant legislation, school board employees who are presently sitting as school board trustees as a result of a valid election.  I am told that  would affect the applicants Baier, Ollenberger and McNiff, and possibly a few other trustees.  The stay on an exemption basis should continue only until leave to appeal in this Court is denied or if leave is granted only to the earlier of the Court’s decision on appeal or the expiry of the current terms of the affected school board employees.  As a result, the relevant legislation will not be suspended and will remain operative in all other circumstances and specifically for the purposes of the election that will take place in respect of the school trustee positions that are presently occupied by school board employees unless this Court, prior to those elections, should reverse the decision of the Court of Appeal.

19                               The application for leave to appeal will be expedited, submissions from the  applicants and the government, having now been filed with the Court.

20                               By agreement there will be no order as to costs.

Motion granted.

Solicitors for the applicants: Field, Edmonton.

Solicitor for the respondent: Attorney General of Alberta, Edmonton. 

                                                             ORDER^*

Rothstein J. — Upon application by counsel for the applicants for a stay of the judgment of the Court of Appeal of Alberta dated May 1, 2006;

. . .

It is hereby ordered that:

1.     The applicants, Ronald David Baier, George Ollenberger and Liam McNiff, and all other teachers and employees of a school district or division, charter school or private school who are presently serving as school board trustees are exempted from the operation of s. 22(1.1) of the Local Authorities Election Act, R.S.A. 2000, c. L‑21, pending the determination of the application for leave to appeal.  In the event that the application for leave is denied, this order will cease to have effect.  If leave to appeal is granted, the order will remain in effect until the earlier of the end of their respective terms of office or the date of the judgment on the appeal. 

2.     There shall be no order as to costs.