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CONSTITUTIONAL PROCEEDINGS - Practice and procedure - Orders - Interim or interlocutory orders

Wednesday, December 27, 2017 @ 8:15 AM  


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Application by Saskatchewan to strike part of the action; application by the plaintiffs for an interim stay of the operation of parts of s. 31 of the Vital Statistics Act, 2009 (Act). Amendments made to s. 31 of the Act in 2016 introduced a procedure by which individuals whose birth was registered in the Province of Saskatchewan could change the sex designation on their "statement" or birth certificate. The provision was only available to individuals who had attained 18 years of age and required applicants to identify as either female or male. The requested change in gender identification also had to be supported by the written endorsement of a medical professional. The plaintiffs maintained that the age restriction, as well as the requirements to designate gender and to provide medical support for the change of gender, offended several provisions of the Canadian Charter of Rights and Freedoms (Charter) and the Saskatchewan Human Rights Code (Code). They therefore sought judicial relief under both the Charter and the Code, including a declaration that the Act, in particular ss. 31(2), violated various specified sections of the Charter and the Code. Saskatchewan sought to strike the part of the action that claimed relief under the Code on the basis that the Court had no jurisdiction to adjudicate the Code claims. The plaintiffs sought an interim stay of the operation of the age and other restrictions under s. 31 of the Act, including the requirement that there be a male or female gender identification on issued or amended birth certificates.

HELD: Application by Saskatchewan allowed; application by the plaintiffs dismissed. The Court had no jurisdiction to adjudicate alleged infractions of the Code outside the process directed by it, based on the Seneca and Lawless decisions. The only qualifier was if the matter related to a claim for injunctive relief under s. 38(3) of the Code, which conferred jurisdiction to adjudicate injunction applications stemming from alleged contraventions of the Code even where the Court did not have jurisdiction to hear and determine the underlying human rights issues. The interlocutory orders requested by the plaintiff were denied, as they were effectively mandatory, might have permanent effect and would require the Court to intrude into the legislative realm without the benefit of due process that permitted an extensive review of the merits of the competing interests.

Forsberg v. Saskatchewan, [2017] S.J. No. 492, Saskatchewan Court of Queen's Bench, J.L. Pritchard J., October 30, 2017. Digest No. TLD-December252017003