Can the Legislature Order Dismissal of a Case Against the Government? 

By Dr. Gerard Kennedy & Tasha Ellis

5185603 Manitoba Ltd et al v Government of Manitoba et al, 2023 MBCA 47

Provinces can, theoretically, abolish private law causes of action. They can even pass legislation to extinguish judgments. But can they constitutionally compel dismissal of a cause of action while in progress? That was the issue the Court of Appeal for Manitoba needed to consider in 5185603 Manitoba Ltd et al v Government of Manitoba et al. The plaintiffs (with “518 Man.” being the primary plaintiff), appealed the dismissal of their action by the Court of King’s Bench against the defendant, the Government of Manitoba (“the Government”), after the enactment of legislation “which purported to terminate a contract and dismiss their action.”[1] There were originally three causes of action initiated by 518 Man., “(1) for misfeasance in public office; (2) interference with economic relations; and (3) a claim for defamation arising from statements made by Premier Pallister, Minister Fielding and the Government.”[2]

By way of background, the Government was involved in the negotiation of a contract in 2008: a lease agreement between 518 Man as landlord and the First Nations of Southern Manitoba Child and Family Services Authority as tenant.[3] Under Division 3 of The Budget Implementation and Tax Statutes Amendment Act (the “BITSA Act”)[4], the government passed legislation directing the dismissal of 518 Man’s claim against the Government related to this contact. The King’s Bench judge proceeded to dismiss the action.

The Court of Appeal panel raised two issues of statutory interpretation and jurisdiction related to the BITSA Act

(a) Whether a proper interpretation of section 230(6), including its French version, would lead to the same conclusion that the motion judge reached? 

(b) Whether the effect of seeking to dismiss pre-emptorily a matter which was in the hands of the courts could be considered an infringement of the judicial function?[5]

Defamation action not barred by French version of Section 230(6)

A discrepancy between the French and English versions of section 230(6) was found, with the English version having a broader application by the addition of the words “or related to”:

Proceedings barred 
230(6) No action or other proceeding, including but not limited to any action or proceeding in contract, restitution, tort, misfeasance, bad faith or trust or for a breach of fiduciary duty, that is directly or indirectly based on or related to the application of this section may be brought or maintained against any person.[6]

Irrecevabilité de curtained instances
230(6) Sont irrecevables les instances — liées notamment à la rupture d’obligations en matière contractuelle, délictuelle, fiduciaire ou de restitution ou à une mauvaise exécution ou à un acte de mauvaise foi — qui ont pour objet ou fondement, direct ou indirect, l’application du présent article. [Emphasis added.]

The French version makes it clear that only actions that are “based on” or have as their “object or foundation” are barred, while the English version bars everything that is “related to” breach of contract, restitution, tort, misfeasance, bad faith or trust or for a breach of fiduciary duty. Principles of statutory interpretation mandate that courts are to interpret legislation as not extinguishing private law causes of action unless that is clear what the legislature intended. Accordingly, the narrower of two meanings is to be applied, if the “narrower version appears to be consistent with the legislative intent.”[7]In the view of the appellate judges, the defamation action was not barred by section 230(6). Though the defamation proceeding was “related to” the breach of contract claim, it was not clearly “based on” it and the narrower interpretation of the legislation should be preferred. 

In response to this decision, Chief Justice Joyal of the Court of King’s Bench issued a Practice Direction related to statutory interpretation: 

As noted in 5185603 Manitoba Ltd et al v Government of Manitoba et al, 2023 MBCA 47, Manitoba statutes are, by virtue of section 23 of the Manitoba Act, 1870, S.C. 1870, c. 3, constitutionally mandated to be bilingual in French and English (see also section 7 of The Interpretation Act, C.C.S.M. c. I80). As also noted in this decision, the law relating to bilingual interpretation of legislation involves a search for the shared meaning of the English and French versions. In order to ensure that proper consideration is given to both the French and English versions of legislation where a case involves an issue of statutory interpretation, counsel or a self-represented litigant are to address in their related submissions whether there is discrepancy between the English and French versions. If there is discrepancy, this discrepancy is to be addressed in the submissions regarding the proper interpretation of the statutory provision(s) at issue in accordance with the approach outlined in 5185603 Manitoba Ltd et al v Government of Manitoba et al.[8]

Judicial Independence under Section 230(9) 

The provision in question reads:

Proceedings dismissed 
230(9) Any action or other proceeding referred to in subsection (6) commenced before the day this section comes into force is deemed to have been dismissed, without costs, on the day this section comes into force, including, without limitation, Court of Queen’s Bench File No. CI19-01- 21887.[9] [Emphasis added.]

Parliamentary supremacy is a principle that is well understood by the courts in Canada, meaning that “[w]ithin the boundaries of the Constitution, legislatures can set the law as they see fit.”[10] There are several examples of the courts upholding legislation that has altered the civil rights or obligations of litigants in court disputes, which have included: barring future actions, imposing a temporary stay in proceedings, nullifying or extinguishing pending actions, etc. However, as Steel and Monnin JJA point out, the Court had opportunity to “substantively adjudicate the rights of the litigants by determine how those rights were affected… and, ultimately, it was the Court which made the decision to dismiss the case.”[11]

Steel and Monnin JJA highlighted the need for the Court to address this important question, noting that:

[T]here is no Canadian case law which has considered whether the legislated dismissal of court proceedings interferes with section 96 of the Constitution Act, 1867 or violates judicial independence. Furthermore, there appears to be no other Canadian legislation, other than the BITSA Act, which dismisses a specific court file number.[12]

The matter was sent back to the motion judge to address and consider the constitutional issue of “whether the legislation directs a dismissal of a specific action that is already in the hands of the courts is an infringement of the adjudicative function of the judiciary.”[13] This is based on the core constitutional responsibility of the courts to resolve private law causes of action without interference from the political branches of government. Providing the following questions to be contemplated (possibly expecting this matter to return to the panel in the future):  

Does this provision allow the Court to “perform its adjudicative role without interference” (Imperial Tobaccoat para 47)? Does it impermissibly infringe upon the “core jurisdiction of superior courts” (Trial Lawyers at para 88)? Does the legislation block the courts from completing a task that is “central to what the superior courts do (ibid at para 32)— judicially resolving a dispute filed before them by a plaintiff?[14]

To be clear, the Court of Appeal did not conclusively decide that a legislature is incapable of dismissing a particular proceeding. It did, however, mandate further consideration, causing one to query how tolerant courts will be about legislatures meddling regarding the adjudicative process. 

[1] 5185603 Manitoba Ltd et al v Government of Manitoba et al, 2023 MBCA 47 at para 1.

[2] Ibid at para 7.

[3] Ibid at para 3.

[4] The Budget Implementation and Tax Statutes Amendment Act, 2020, 3rd Sess, 42nd Leg, Manitoba, 2020 (assented to 6 November 2020), SM 2020, c 21 [BITSA Act].

[5] Supra note 1 at para 16.

[6] Supra note 1 at para 28.

[7] Supra note 1 at para 28.

[8] Practice Direction – Re: Cases Involving Statutory Interpretation, June 23, 2023, online: <>.

[9] BITSA Actsupra note 3.

[10] Supra note 1 at para 39, citing British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49 at para 52.

[11] Supra note 1 at para 49.

[12] Supra note 1 at para 46.

[13] Supra note 1 at para 62.

[14] Supra note 1 at para 62.

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