In Brazeau v Canada (Attorney General), the Court of Appeal for Ontario recently considered appeals of summary judgment decisions in two certified class actions, Brazeau and Reddock, brought by inmates in federal penitentiaries who were held in administrative segregation, claiming damages for breaches of Charter rights. The appeals were heard together. The appellant in both appeals, Canada (Attorney General), raised multiple issues on appeal, including whether the motion judge (who heard and decided both summary judgment motions) erred in awarding Charter damages in both cases.
In particular, the Court of Appeal considered whether the motion judge erred by directing that damages be used to implement “structural changes” in the Brazeau action. Specifically, the court was asked to consider whether the motion judge erred in making the order that “the $20 million be distributed less Class Counsel’s approved legal fees and disbursements, in the form of additional mental health or program resources for structural changes to penal institutions as the court on further motion may direct.”
While leaving most of the findings of the motion judge intact, and taking no issue with the quantum of the $20 million award, the court found the motion judge erred in law in making this order. The court noted three issues with this order.
#1 No Submissions from the Parties
First, the motion judge made the order on his own motion without hearing submissions from the parties, thus denying them their procedural fairness.
#2 Interpretation of s. 26 of the Class Proceedings Act, 1992
The court then found that the motion judge erred in his interpretation of s. 26 of the Class Proceedings Act, 1992. At para. 459, the motion judge stated:
Pursuant to s. 26 (7) of the Act, the court shall supervise the execution of judgments and the distribution of awards. Pursuant to s. 26 (8), the court may order that an award of aggregate damages be paid in a lump or in installments on such terms as the court considers appropriate. I read these provisions as empowering the court to order that the aggregate damages not be distributed to individual Class Members but rather distributed for the benefit of all Class Members.
The court disagreed with that interpretation, finding that “the only provision made in s. 26 for the distribution of aggregate damages to any person other than the class members is found in ss. 26(4)-(6), which allows for Cy-Près distribution of remaining funds other than to class members after efforts have been made to distribute the award to class members.” The court found this was not the situation in this case.
#3 Distinguishing the Supreme Court of Canada’s Decision in Doucet-Boudreau
Finally, the court found that the order made by the motion judge ran afoul of the principles set out in Doucet-Boudreau. In Doucet-Boudreau, the Supreme Court of Canada noted that Charter remedies “must employ means that are legitimate within the framework of our constitutional democracy”; “respect the relationships with and separation of functions among the legislature, the executive and the judiciary”; and that courts must not “depart unduly or unnecessarily from their role of adjudicating disputes and granting remedies that address the matter of those disputes.”
The Court of Appeal in this decision noted that “as Doucet-Boudreau itself shows, there is room in some situations for innovative remedies that include ongoing, post-judgment involvement by the court to ensure compliance with the Charter.” At issue in Doucet-Boudreau was the affirmative promise of s. 23 of the Charter for minority language education in the urgent context of cultural erosion of minority rights through assimilation. The Supreme Court of Canada upheld the propriety of a trial judge maintaining jurisdiction to receive reports to monitor the government’s progress in establishing the required facilities. It held in Doucet-Boudreau that the reporting order preserved and reinforced the capacity of the educational authorities in providing school facilities as mandated by the relevant legislation.
In distinguishing the order made by the motion judge in this case from the order in Doucet-Boudreau, the Court of Appeal noted:
But the order at issue in the Brazeau appeal is not a “reporting order” to monitor state compliance with a defined affirmative right; the order made in this case provides for a much more active form of judicial involvement. The motion judge assumed the power to direct the state to divert a damage award for harm suffered and use the damages as he saw fit to provide such “additional mental health or program resources for structural changes to penal institutions”: at paras. 456-59. That order was not fair to either the class or Canada and it amounted to an unjustifiable assumption of judicial control over a complex public institution. It was not an “appropriate and just remedy” and therefore it must be set aside.
Ultimately, the Court of Appeal set aside the award of aggregate damages in Brazeau and remitted the issue back to the motion judge for reconsideration. The damages awarded in Reddock were upheld.
Of note, the appeal reasons in Brazeau provide an in-depth analysis of when Charter damages are available and appropriate and provides important clarity on the limits of an aggregate damages award in class actions.
1 Brazeau v Canada (Attorney General), 2020 ONCA 0184 [Brazeau #2].
2 Brazeau v Attorney General (Canada), 2019 ONSC 1888 [Brazeau #1].
3 Reddock v Canada (Attorney General), 2019 ONSC 5053.
4 Brazeau #2 at para 1.
5 Brazeau #1 at para 458.
6 Brazeau # 2 at paras 105 – 106.
7 Ibid at para 107. 107.
8 Ibid at para 109.
9 Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 [Doucet].
10 Brazeau #2 at para 110 citing to Doucet at para 56.
11 Ibid at para 111.
12 Ibid citing to Doucet at paras 38-40.
13 Ibid at para 111 citing to Doucet at para 68.
14 Ibid at para 125.