Setting the Standard for Charter Damages in Class Proceedings: Lessons from Reddock v. Canada
On March 9, 2020 the Ontario Court of Appeal released its decision in Reddock v. Canada, a class action brought on behalf of inmates who were subject to prolonged solitary confinement in federal prisons. In a unanimous decision, Justices Sharpe, Juriansz, and Trotter upheld Justice Perell’s $20 million award of Charter damages in favour of class members, which is the first of its kind in Canada. This decision confirms that Canada is liable to pay these damages for its “clear disregard” for the class members’ Charter rights, but reverses the systemic negligence finding that was the second basis for the damages award in the court below.
This decision provides useful guidance on the availability of Charter and systemic negligence damages in cases where governments know or ought to have known that the implementation of legislative power could cause serious harm.
When are Damages for Charter Breaches Inappropriate or Unjust?
The Court of Appeal’s reasons provide a useful interpretation of the now decade-old four-part Charter damages test established in Vancouver (City) v. Ward. Pursuant to the Supreme Court of Canada’s decision in Ward, where functional considerations support a damages award, countervailing factors can render damages inappropriate or unjust. In this case, the Court of Appeal focused on two of these countervailing factors: (i) alternative remedies and (ii) good governance immunity.
- Alternative Remedies—Plaintiffs Need Not Show Exhaustion of Other Resources
The Court of Appeal rejected Canada’s argument that the availability of a remedy in tort precluded an award of Charter damages:
We are not persuaded that the mere existence or possibility of a tort claim precluded the motion judge from awarding Charter damages. 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 state can only complain if the award of Charter damages duplicates the available private law damages.
The Court of Appeal emphasized that, while there is a need to avoid duplication and double recovery, plaintiffs are not required to show that they have “exhausted other recourses”. Rather, the state must “show that other remedies are available in the particular case that will sufficiently address the breach.”
The Court of Appeal also rejected the notion that a declaration of constitutional invalidity obtained in another matter could displace the availability of damages in this case, because a “declaration would fail to satisfy the need for compensation or provide meaningful deterrence of future breaches of the Charter right.”
- Good Governance Immunity is Limited
The Court of Appeal adopted a restrictive interpretation of good governance immunity, often referred to as the Mackin principle for the 2002 Supreme Court decision that established it.
In Mackin v. New Brunswick, the Supreme Court held that government actors acting in good faith are entitled to follow laws that are valid at the time of their action, even if those laws are subsequently found to be unconstitutional, without exposure to damages. An exception to this immunity exists where the government’s application of that law is “clearly wrong, in bad faith or an abuse of power.”
In this case, the Court of Appeal held that different thresholds should apply to different situations in determining whether the immunity applies
First, the Court of Appeal found that a minimal threshold of “clear disregard for the claimant’s Charter rights” should apply in this case, where the conduct was permitted rather than required by the legislation.
Second, the Court of Appeal provided useful guidance on the meaning of “clear disregard”. This threshold, the Court held, is analogous to recklessness or wilful blindness. In short, it is enough either that Canada proceeded with a course of action in the face of a known risk that Charter rights would be violated, or that it deliberately failed to inquire about the likelihood of a Charter breach when there was good reason to do so.
This signals a restrictive interpretation of good governance immunity that limits the ability for governments to rely on permissive legislation to insulate themselves from accountability for Charter rights violations that they knew or ought to have known were risks of their conduct.
Availability of Damages for Systemic Negligence
The Court of Appeal’s reasons also address the availability of class-wide remedies under tort law. The Court of Appeal rejected the class’ systemic negligence claim, but made clear that the class members remain free to pursue their individual claims for negligence at the individual issues stage of this class action.
The Court of Appeal characterized the negligence claim as primarily one that arises from the implementation of a particular policy, such that an application of the Edwards, Cooper, and Eliopoulos cases preclude a duty of care. This claim, “properly understood, arise from breaches of the Charter, Charter analysis and consideration of the availability of Charter damages is the appropriate remedy.”
Growing Judicial Condemnation of Solitary Confinement
Overall, this decision represents another strong condemnation of the practice of solitary confinement from the Ontario Court of Appeal who, a year ago, in Canadian Civil Liberties Association v. Canada, confirmed that the practice, as permitted by the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”), is unconstitutional and imposed a 15-day limit on its use.
Disclaimer: McCarthy Tétrault LLP was co-counsel to the class with Koskie Minsky, and co-counsel with Lax O'Sullivan Liscus Gottlieb on the CCLA v. Canada matter. The Reddock case was heard together with Brazeau v. Canada. The Court of Appeal’s decision for both cases is reported at 2020 ONCA 184
 Reddock, at para. 43-44.
 Reddock, at para. 43, citing Ward, at para. 25.
 Reddock, at para. 45.
 Mackin,at para. 78.
 Reddock, at para. 122.