Charter Damages and the Charter Damages and the

Implications for Class Actions Implications for Class Actions Against the CrownAgainst the Crown

R. Douglas ElliottR. Douglas ElliottRoy Elliott O’Connor L.L.PRoy Elliott O’Connor L.L.P

www.reolaw.cawww.reolaw.ca

February 18, 2011February 18, 2011

Ward v. British ColumbiaWard v. British Columbia [2010] 2 S.C.R. 28[2010] 2 S.C.R. 28

• In 2002, Mr. Ward was arrested and detained for over four In 2002, Mr. Ward was arrested and detained for over four hours by Vancouver police, after police wrongly identified him hours by Vancouver police, after police wrongly identified him for a person planning to throw a pie at former Prime Minister for a person planning to throw a pie at former Prime Minister Jean ChrétienJean Chrétien

• B.C. Supreme Court held Mr. Ward’s rights under the B.C. Supreme Court held Mr. Ward’s rights under the CharterCharter were violated as a result of wrongful imprisonment, a strip were violated as a result of wrongful imprisonment, a strip search, and the unreasonable search and seizure of his carsearch, and the unreasonable search and seizure of his car

• Mr. Ward was awarded the following in damages:Mr. Ward was awarded the following in damages:– $5,000 for strip search (Charter)$5,000 for strip search (Charter)– $5,000 for wrongful imprisonment (tort)$5,000 for wrongful imprisonment (tort)– $100 for search and seizure of car (Charter)$100 for search and seizure of car (Charter)– Declarations that his rights were infringedDeclarations that his rights were infringed

• BC Court of Appeal upheld decision of trial judgeBC Court of Appeal upheld decision of trial judge

Ward v. British ColumbiaWard v. British Columbia [2010] [2010] 2 S.C.R. 282 S.C.R. 28

• Supreme Court allowed appeal Supreme Court allowed appeal on damages for search and on damages for search and seizure but upheld the $5,000 seizure but upheld the $5,000 awarded for strip searchawarded for strip search

• Justice McLachlin provides four-step Justice McLachlin provides four-step test for when damages are available test for when damages are available under s.24(1) of under s.24(1) of Charter:Charter:– 1) Proof of 1) Proof of Charter Charter breachbreach– 2) Functional justification of 2) Functional justification of

damagesdamages– 3) Countervailing factors3) Countervailing factors– 4) Quantum of s.24(1) damages4) Quantum of s.24(1) damages

Requirement of Bad faith?Requirement of Bad faith? • In In Ward Ward it was held that there was a it was held that there was a

violation of the violation of the Charter Charter even though bad even though bad faith could not be provenfaith could not be proven

• If a “bad faith” were required- whose “bad If a “bad faith” were required- whose “bad faith needs to be proved?”faith needs to be proved?”– The Queen?The Queen?– The police?The police?– The Crown?The Crown?

• ““Bad faith” requirement should only be Bad faith” requirement should only be relevant if seeking punitive damagesrelevant if seeking punitive damages

• Reality of imposing a bad faith Reality of imposing a bad faith requirement= immunizing the Crown, an requirement= immunizing the Crown, an illusion of justiceillusion of justice

““Appropriate and Just” Appropriate and Just” StandardsStandards::

• Test from Test from Doucet-Boudreau Doucet-Boudreau for section 24 remediesfor section 24 remedies• AppropriateAppropriate” should mean the remedy that best ” should mean the remedy that best

vindicates the vindicates the Charter Charter breachbreach• Schacter v. CanadaSchacter v. Canada [1992] 2 S.C.R. 679: "apply the measures [1992] 2 S.C.R. 679: "apply the measures

which will best vindicate the values expressed in the which will best vindicate the values expressed in the CharterCharter" " and "refrain from intruding into the legislative sphere beyond and "refrain from intruding into the legislative sphere beyond what is necessary"what is necessary"

• ““Just”Just” should mean that the level of compensation is should mean that the level of compensation is proportionate to the damage doneproportionate to the damage done

• Crown may think the “appropriate and just” standard Crown may think the “appropriate and just” standard gives too much discretion to the courtgives too much discretion to the court

• Crown doesn’t object to flexible tests that favours the Crown, Crown doesn’t object to flexible tests that favours the Crown, e.g. e.g. Cooper v. HobartCooper v. Hobart [2001] S.C.J. No. 76 requirement that [2001] S.C.J. No. 76 requirement that the Court consider “other policy consideration” before finding a the Court consider “other policy consideration” before finding a new duty of care – see Eliopolous and Williams new duty of care – see Eliopolous and Williams

• It is part of the court’s job to determine what is It is part of the court’s job to determine what is “just” and the language of the “just” and the language of the CharterCharter gives the gives the Court the widest possible discretionCourt the widest possible discretion

Can other remedies achieve a Can other remedies achieve a

just result?just result? • Often other remedies can achieve a just Often other remedies can achieve a just

result- monetary damages will not result- monetary damages will not always be the most just remedyalways be the most just remedy

• Ward Ward does not stand for the proposition does not stand for the proposition that damages should be the first that damages should be the first remedy pursued in any remedy pursued in any Charter Charter actionaction

• What remedy should be given depends, in part, on the What remedy should be given depends, in part, on the nature of the nature of the Charter Charter violation violation – R. v. Big M. Drug Mart Ltd.R. v. Big M. Drug Mart Ltd. [1985] 1. S.C.R. 295[1985] 1. S.C.R. 295: :

fails at rational connectionfails at rational connection appropriate remedy: appropriate remedy: nullificationnullification

– Vriend v. AlbertaVriend v. Alberta [1998] 1.S.C.R.493[1998] 1.S.C.R.493: : problem is problem is under-inclusive legislationunder-inclusive legislation appropriate remedy: appropriate remedy: reading inreading in

– R v. SharpeR v. Sharpe [2001] 1 S.C.R. 45[2001] 1 S.C.R. 45:: problem is over- problem is over-inclusive legislationinclusive legislation appropriate remedy: reading appropriate remedy: reading downdown

““Thwarting effective Thwarting effective

governance”?governance”? • Crown will always argue that large Crown will always argue that large

damages awards may prevent effective damages awards may prevent effective governancegovernance

• Previously, the Crown has settled class Previously, the Crown has settled class proceedings for over $1 billion dollarsproceedings for over $1 billion dollars– Hepatitis C case (1986-1990): Hepatitis C case (1986-1990): settled in settled in

1998 for over $1.1 billion1998 for over $1.1 billion– Hepatitis C case (pre-1986, post-1990): Hepatitis C case (pre-1986, post-1990):

settled in 2006 for over $1.02 billionsettled in 2006 for over $1.02 billion– Residential Schools: Residential Schools: settled in 2007 for settled in 2007 for

over $1.9 billionover $1.9 billion

• Difficult to argue that any damages under $1 Difficult to argue that any damages under $1 billion will thwart effective governancebillion will thwart effective governance

• Some negative financial impact on government Some negative financial impact on government should not be enough to deny a remedy (should not be enough to deny a remedy (Eldridge Eldridge v. British Columbia (Attorney General), v. British Columbia (Attorney General), [1997] 3 [1997] 3 S.C.R. 624)S.C.R. 624)

““Thwarting effective Thwarting effective governance”?governance”?

– Newfoundland (Treasury Board) v. Newfoundland (Treasury Board) v. N.A.P.EN.A.P.E. . [2004] 3 S.C.R. 381[2004] 3 S.C.R. 381

– Provincial government entered a pay equity Provincial government entered a pay equity agreement with Newfoundland Association agreement with Newfoundland Association of Public Employees to adjust wages for of Public Employees to adjust wages for women to be comparable with salaries for women to be comparable with salaries for malesmales

– However, provincial government had a However, provincial government had a deficit and enacted legislation to cancel the deficit and enacted legislation to cancel the agreement, saving the government about agreement, saving the government about $24 million$24 million

– Supreme Court found that the legislation Supreme Court found that the legislation had effect of harming women but that had effect of harming women but that violation was reasonable under s.1 due to violation was reasonable under s.1 due to the financial crisis of government- the crisis the financial crisis of government- the crisis amounted to a “pressing and substantial amounted to a “pressing and substantial objective” objective”

• The financial burden is argument may only reasonably be The financial burden is argument may only reasonably be made by the Crown in situations like the NAPE case, and is made by the Crown in situations like the NAPE case, and is best considered under section 1best considered under section 1

Double Recovery Problems:Double Recovery Problems:

• Justice McLachlin in Justice McLachlin in Ward Ward clearly states:clearly states:

– ““The existence of a potential claim in tort does The existence of a potential claim in tort does not therefore bar a claimant from obtaining not therefore bar a claimant from obtaining damages under the damages under the CharterCharter. Tort law and the . Tort law and the CharterCharter are distinct legal avenues. However, a are distinct legal avenues. However, a concurrent action in tort, or other private law concurrent action in tort, or other private law claim, bars s. 24(1) damages if the result claim, bars s. 24(1) damages if the result

would be double compensation”would be double compensation”

• Double recovery should Double recovery should notnot be an be an issue as a result of the issue as a result of the Ward Ward decisiondecision

Implications on class Implications on class

proceedings:proceedings:

• In In GuimondGuimond v. Quebec (Attorney General)v. Quebec (Attorney General) [1996] [1996] 3 S.C.R. 347, Justice Gonthier, in obiter, effectively 3 S.C.R. 347, Justice Gonthier, in obiter, effectively barred class proceedings as a way to obtain a barred class proceedings as a way to obtain a declaration:declaration:– ““Furthermore, while it is true that it is not necessary to Furthermore, while it is true that it is not necessary to

pursue a class action to obtain a declaration of constitutional pursue a class action to obtain a declaration of constitutional invalidity and therefore, that it is generally undesirable to do invalidity and therefore, that it is generally undesirable to do so, it is not necessary, in this case, to canvass whether or not so, it is not necessary, in this case, to canvass whether or not there resides a residual discretion to deny authorization there resides a residual discretion to deny authorization should the constituent criteria of art. 1003 be met”should the constituent criteria of art. 1003 be met”

• However, now that damages are available as a However, now that damages are available as a possible remedy, there may be an increase in class possible remedy, there may be an increase in class proceedings for proceedings for Charter Charter violations if the goal is to violations if the goal is to recover financial compensation for a grouprecover financial compensation for a group

• Historically, declarations with Historically, declarations with a suspension are the most a suspension are the most common remedy in common remedy in Charter Charter proceedingsproceedings

Malicious prosecution actions:Malicious prosecution actions:

• The Supreme Court in The Supreme Court in Nelles v. OntarioNelles v. Ontario [1989] [1989] 2 S.C.R. 170 establishes a 2 S.C.R. 170 establishes a stringent test for the tort stringent test for the tort of malicious prosecution, of malicious prosecution, including proof of including proof of intentional “malice”intentional “malice”

• Ward Ward will make it easier to will make it easier to pursue a claim for a pursue a claim for a Charter Charter breach as opposed breach as opposed to malicious prosecution in to malicious prosecution in certain cases because certain cases because there is no requirement to there is no requirement to prove intentional malice prove intentional malice

•Certified as a class Certified as a class action under the style of action under the style of Brogaard v Canada Brogaard v Canada in in British ColumbiaBritish Columbia

Test case approach had Test case approach had been tried and failed been tried and failed because of Crown because of Crown settlement strategysettlement strategy•A class action was A class action was preferable because the preferable because the goal was recovering goal was recovering pensions for all class pensions for all class members, not just a members, not just a declarationdeclaration•Remedy granted despite Remedy granted despite a trial finding that there a trial finding that there was no bad faith was no bad faith

Hislop v. CanadaHislop v. Canada::

•Supreme Court has recently approved certifying class actions Supreme Court has recently approved certifying class actions

for Charter breaches (for Charter breaches (Manague v. Canada, Manague v. Canada, [2010] S.C.J. No.67 (S.C.C.))[2010] S.C.J. No.67 (S.C.C.)) •The availability of damages means a narrow scope for the objections made in The availability of damages means a narrow scope for the objections made in Guimond Guimond •Success of the class action process in Success of the class action process in Hislop Hislop demonstrates a class action can be demonstrates a class action can be appropriate and useful in some casesappropriate and useful in some cases•Financial incentive for law firms to pursue a risky case, but firms will need to be Financial incentive for law firms to pursue a risky case, but firms will need to be aware of the danger of statutory bars to the lien for fees as in aware of the danger of statutory bars to the lien for fees as in HislopHislop•Circumstances will still be somewhat uncommon, because the facts will have to Circumstances will still be somewhat uncommon, because the facts will have to involve a wrong done to a group in a situation where financial compensation is an involve a wrong done to a group in a situation where financial compensation is an appropriateappropriate•Class actions are more likely to be appropriate in cases of wrongful acts by Crown Class actions are more likely to be appropriate in cases of wrongful acts by Crown servants as opposed to the effects of constitutionally infirm statutes (though that servants as opposed to the effects of constitutionally infirm statutes (though that was the nature of problem in was the nature of problem in HislopHislop))•The G20 class actions appears to fit these requirements, provided that they focus The G20 class actions appears to fit these requirements, provided that they focus on systemic problems common to a group or groups, such as inadequate detention on systemic problems common to a group or groups, such as inadequate detention facilities, as opposed to individual incidents, such as the beating of some protestors facilities, as opposed to individual incidents, such as the beating of some protestors by some police officers by some police officers

Do Do Charter Charter class actions have a class actions have a future after Ward?future after Ward?