Last week, we commented on the Court of Appeal for Ontario’s decision in Brazeau v Canada (Attorney General),1 finding that the motion judge erred in ordering 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.”
In addition to providing clarity on the limits of an aggregate damages award in class actions, Brazeau, provides an in-depth analysis of when Charter damages are available and appropriate and offers appellate guidance on the interpretation of the Supreme Court of Canada’s decision in Vancouver (City) v Ward,2 now ten years old.
In Ward, the Supreme Court of Canada outlined a four-part test to determine whether an award of damages pursuant to s. 24 of the Charter is an appropriate and just remedy:
- Has a Charter right been breached?
- Would damages fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches?
- Has the state demonstrated countervailing factors that defeat the functional considerations that support a damage award and render damages inappropriate or unjust?
- What is the appropriate quantum of damages?
In Brazeau, the court considered each of the factors in turn, mostly focusing on the third and fourth factor.
2. Has a Charter right been breached?
The court noted that little issue was taken with the motion judge’s finding that the Charter rights had been breached in these cases.3
2. Would damages fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches?
The court noted that no issue was taken that damages would fulfill one or more of the related functions of compensation, vindication of the right, and deterrence of future breaches.4
3. Has the state demonstrated countervailing factors that defeat the functional considerations that support a damage award and render damages inappropriate or unjust?
The court confirmed that at this stage of the analysis, the evidentiary burden shifted to the appellant, Canada, to demonstrate that damages would be inappropriate or unjust.5 The court referred to Chief Justice McLachlin’s comment in Ward, “A complete catalogue of countervailing considerations remains to be developed as the law in this area matures. At this point, however, two considerations are apparent: the existence of alternative remedies and concerns for good governance.”6
The Court of Appeal rejected Canada’s argument that the motion judge erred by granting Charter damages despite the alternative tort remedy in negligence, noting that the mere existence or possibility of a tort claim did not preclude the motion judge from awarding Charter damages:7
Ward does not establish a firm rule that a court should not award Charter damages simply because there is a possible private law claim for the same damages. The concern expressed with respect to alternative remedies is the need to avoid duplication and double recovery. Ward contemplates concurrent claims for private law and Charter damages, provided an award of Charter damages is not “duplicative”: at para. 35. If there is another avenue to damages, “a further award of damages under s. 24(1) would serve no function and would not be ‘appropriate and just’” (emphasis added): at para. 34. Nor does Ward create a hierarchy of remedies with Charter remedies coming last. A claimant is not required to “show that she has exhausted all other recourses”: at para. 35. The evidentiary burden is the reverse. It is for the state “to show that other remedies are available in the particular case that will sufficiently address the breach”: at para. 35.8
The court reiterated that the appellant could only complain if the award of Charter damages duplicates the available private law damages, and found that double recovery would not occur in this case.9 The court also confirmed that the availability of a declaration should not displace damages in this case as it would fail to satisfy the need for compensation or provide meaningful deterrence of future breaches of the Charter right.10
Concerns for Good Governance
The court noted that “when a regulatory regime is challenged, the state is entitled to assert that ‘concerns for good governance’ immunity must be considered. The regulatory regime is the sort of policy choice for which, in the words of Ward, ‘the state might seek to show that s. 24(1) damages would deter state agents from doing what is required for effective governance.’”11 The court was satisfied that the good governance concern arises for Charter breaches in these cases.12
Where an award of Charter damages would interfere with good governance, “damages should not be awarded unless the state conduct meets a minimum threshold of gravity.”13 The issue in Brazeau was whether the Crown was sufficiently at fault to warrant limiting Canada’s prima facie good governance immunity.14
The court referred to Ward, in which Chief Justice McLachlin held that where good governance concerns arise, “a minimum threshold, such as clear disregard for the claimant’s Charter rights, may be appropriate.” However, “[d]ifferent situations may call for different thresholds” in a manner analogous to private law, ranging from malice for malicious prosecution to negligence for claims based on inadequate police investigation.”15 The Court of Appeal determined it was appropriate to apply the minimum threshold of fault described in Ward, “a clear disregard for the claimant’s Charter rights.” The court noted:
As we have stated, in this case the minimum fault threshold required to overcome the claim of good governance immunity is “clear disregard” for Charter rights. Drawing on criminal law principles, we view the Ward fault standard of “clear disregard” for Charter rights as analogous to recklessness or wilful blindness. In Sansregret v. The Queen,  1 S.C.R. 570, at pp. 584-85, the court defined those standards by explaining that “[t]he culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.” A “clear disregard” for Charter rights connotes either proceeding with a course of action in the face of a known risk that the Charter will `be violated or by deliberately failing to inquire about the likelihood of a Charter breach when the state knows that there is a good reason to inquire.16
The court found that failure to alter its administrative segregation policies in the face of this mounting and concerted criticism from the medical profession, a Royal Commission, a coroner’s inquest, the Correctional Investigator, and various international agencies met the standard of a “clear disregard for Charter rights”17. The court was of the view that the respondents established the “clear disregard” fault threshold applies in these cases and that Canada was not insulated from liability for Charter damages by countervailing good governance considerations.18
4. What is the appropriate quantum of damages?
The Court of Appeal did not take issue with the quantum of the damage award, $20 million, noting that the motion judge considered the three functions from Ward, vindication, deterrence and compensation, were considered in determining this figure. The award of damages in Reddock was upheld, though as discussed in our previous blog post, in Brazeau, the Court of Appeal set aside the award of aggregate damages and remitted the issue back to the motion judge for reconsideration.
The Ward framework still governs damages awards under s. 24 of the Charter, but after ten years and as we enter the new decade, Brazeau provides welcome appellate direction on the application of the Ward framework to the availability of Charter damages in class actions against the government, with particular regard to the countervailing factors element of the Ward test.
1 Brazeau v Canada (Attorney General), 2020 ONCA 0184 [Brazeau #2], considering appeals of summary judgment decisions in two certified class actions, Brazeau v Attorney General (Canada), 2019 ONSC 1888 [Brazeau #1] and Reddock v Canada (Attorney General), 2019 ONSC 5053, brought by inmates in federal penitentiaries who were held in administrative segregation, claiming damages for breaches of Charter rights.
2 Vancouver (City) v Ward, 2010 SCC 27 [Ward].
3 Brazeau #2 at para 39.
5 Ibid at para 40.
6 Ibid citing to Ward at para 33.
7 Ibid at paras 42 – 43.
8 Ibid at para 43. 43.
9 Ibid at para 44.
10 Ibid at para 45.
11 Ibid at para 59.
12 Ibid at para 61.
13 Ibid at para 62 citing to Ward at para 39.
14 Ibid at para 63.
15 Ibid at para 66 citing to Ward at para 43. a 43.
16 Ibid at para 87.
17 Ibid at para 100.
18 Ibid at para 101.
19 Ibid at para 103. 3.