Supreme Court of Canada holds judicial review more effective remedy than Charter damages.
21, January 21, 2017 - Filed in: Court Cases
“The Alberta Energy Regulator (the “Board”) is a statutory, independent, quasi‑judicial body responsible for regulating Alberta’s energy resource and utility sectors. E claims that the Board breached her right to freedom of expression under s. 2 (b) of the Canadian Charter of Rights and Freedoms by punishing her for publicly criticizing the Board and by preventing her, for a period of 16 months, from speaking to key offices within it. E brought a claim against the Board for damages as an “appropriate and just” remedy under s. 24(1) of the Charter for that alleged breach. The Board applied to strike this claim on the basis, among others, that it is protected by an immunity clause — i.e., s. 43 of the Energy Resources Conservation Act — which precludes all claims in relation to the Board’s actions purportedly done pursuant to the legislation which the Board administers. Both the Alberta Court of Queen’s Bench and the Court of Appeal found that the immunity clause on its face bars E’s claim for Charter damages and concluded therefore that it should be struck out. On appeal to this Court, E reformulated her claim to add a challenge to the constitutional validity of s. 43."
The S.C.C. held (with one judge writing majority reasons, with which one other judge wrote separate reasons concurring in the result, and three other judges writing joint dissenting reasons which whom one judge concurred), that the appeal is dismissed.
Justice Cromwell wrote as follows (at paras. 2-4, 24-38, 51-53, 55-57):
"Ms. Ernst’s position, in both her factum and oral argument, is that this immunity provision is unconstitutional because it purports to bar her claim for Charter damages. She submits that the only issue on this appeal is whether the immunity clause is constitutionally inapplicable or inoperable to the extent that it bars a claim against the Board for Charter damages. She accepts, as the Alberta courts found, that the immunity clause on its face bars her claim; the issue she brings to the Court is whether this immunity clause is unconstitutional to the extent that it does so.
That the provision purports to bar her damages claim is the foundation on which her appeal was argued. It follows that the Court must give effect to the immunity clause and strike Ms. Ernst’s claim unless she successfully challenges the clause’s constitutionality. In my view, she has not done so.
Like the Alberta courts in this case, although for somewhat different reasons, I conclude that the claim for Charter damages should be struck out.
If Charter damages could never be an appropriate and just remedy for Charter breaches by the Board, then s. 43 does not limit the availability of such a remedy under the Charter and the provision cannot be unconstitutional. In my view, Charter damages could not be an appropriate remedy.
Underlying the question of whether Charter damages could be an appropriate remedy is a broader issue. It concerns how to strike an appropriate balance so as to best protect two important pillars of our democracy: constitutional rights and effective government; see, e.g., Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13,  1 S.C.R. 405, at para. 79. Granting Charter damages may vindicate Charter rights, provide compensation and deter future violations. But awarding damages may also inhibit effective government, and remedies other than damages may provide substantial redress for the claimant without having that sort of broader adverse impact. Thus there is a need for balance with respect to the choice of remedies. This concern for balance was emphasized recently in Henry v. British Columbia (Attorney General) in words that are especially apt in this case: “Courts should endeavour, as much as possible, to rectify Charter breaches with appropriate and just remedies. Nevertheless, when it comes to awarding Charter damages, courts must be careful not to extend their availability too far” (2015 SCC 24,  2 S.C.R. 214, at para. 91).
The leading case about when Charter damages are an appropriate and just remedy is Vancouver (City) v. Ward, 2010 SCC 27,  2 S.C.R. 28. Applying the principles set out in that case, damages are not an appropriate and just remedy for Charter violations by this Board. Not every bare allegation claiming Charter damages must proceed to an individualized, case-by-case consideration on its particular merits. Ward held that Charter damages will not be an appropriate and just remedy where there is an effective alternative remedy or where damages would be contrary to the demands of good governance. These considerations, taken together, support the conclusion that the proper balance would be struck by holding that damages are not an appropriate remedy.
Section 24(1) of the Charter confers on the courts a broad remedial authority. As has been said, “[i]t is difficult to imagine . . . a wider and less fettered discretion”: Mills v. The Queen,  1 S.C.R. 863, at p. 965. This broad discretion should not be narrowed by “casting it in a straight-jacket of judicially prescribed conditions”: Ward, at para. 18. But this does not mean that Charter breaches should always, or even routinely, be remedied by awards of Charter damages. The remedy of damages is limited to situations in which it is “appropriate and just” because it serves one or more of the compensatory, vindicatory and deterrent purposes which support that choice of remedy: Ward, at para. 32. Countervailing factors may establish that damages are not an appropriate and just remedy even though they would serve these ends: Ward, at para. 33.
The list of countervailing factors is not closed. So far, two have been identified: the existence of alternative remedies and concerns for good governance: (Ward, at para. 33; see also para. 42). I conclude, therefore, that Ward does not preclude the immunity of the Board to Charter damages. Rather, Ward set out two countervailing factors that could negate the appropriateness of Charter damages and specifically left open the development of others.
The jurisprudence does not require that every pleaded claim for Charter damages be assessed on an individualized, case-by-case basis. Ward, for example, specifically contemplates the development of new defences to Charter damages claims and these defences are not limited to enhanced liability thresholds. Countervailing factors against granting Charter damages may be of a more generalized nature, reflecting the availability of other remedies, the accumulated wisdom of the common law and strong indications of public policy.
First, there is an alternative remedy — judicial review — that substantially addresses the alleged Charter breach. Judicial review is available to vindicate Charter rights and to clarify the law so as to prevent similar future breaches. Second, good governance concerns are also engaged as granting damages undermines the effectiveness of the Board and inhibits effective governance. Third, to determine the appropriateness of Charter damages against this type of board on a case-by-case basis in a highly factual and contextual manner largely undermines the purposes served by an immunity.
When these countervailing factors are considered collectively — that is, when one looks at their cumulative effect — they negate the appropriateness of an otherwise functionally justified award of Charter damages against this Board. In short, damages are not an appropriate and just remedy for the Board’s Charter breaches.
The first countervailing factor discussed in Ward was the availability of alternative remedies: para. 33. Once the claimant establishes that damages would further one or more of the objectives of compensation, vindication and deterrence, it is open to the state to show that other remedies are available that will sufficiently address the breach: para. 35. As stated in Henry, where another remedy is available to effectively address a Charter breach, damages may be precluded by virtue of this countervailing factor: para. 38. In my view, the availability of judicial review to address alleged Charter breaches by the Board is a strong countervailing factor.
I have no doubt, as my colleague Justice Abella notes, that judicial review is available to address the Board’s alleged Charter breaches. Both the Alberta Court of Queen’s Bench and the Court of Appeal so found. Ms. Ernst does not deny this in her factum and the brief oral submissions suggesting that judicial review ... the statutory immunity clause cannot bar access to judicial review: Crevier v. Quebec (Attorney General),  2 S.C.R. 220.
The availability of judicial review is important for two reasons.
First, judicial review can provide substantial and effective relief against alleged Charter breaches by a quasi-judicial and regulatory board like this one. The facts of this case strikingly illustrate the utility of the remedy of judicial review. The basis of Ms. Ernst’s complaint is that the Board abused its discretion and breached the Charter by refusing to deal with her. If that claim were established in the context of judicial review, a superior court could set aside the directive which Ms. Ernst alleges was issued to stop interaction with her and could order corrective action. Such orders would go a long way towards vindicating Ms. Ernst’s Charter rights.
Moreover, judicial review would in all likelihood provide vindication in a much more timely manner than an action for damages. Again, the facts of this case provide a good example of how this could be so. Ms. Ernst did not start her action for damages until some two years after the alleged breach, and several months after the Board had rescinded the directive which she challenged. A prompt application for judicial review had the potential to achieve practical relief much sooner. While an application for judicial review would not have led to an award of damages, it might well have addressed the breach much sooner and thereby significantly reduced the extent of its impact as well as vindicated Ms. Ernst’s Charter right to freedom of expression. Finally, judicial review would have provided a convenient process to clarify what the Charter required of the Board. That sort of clarification plays an important role in preventing similar future rights infringements.
Thus, judicial review of the Board’s decisions and directives has the potential to provide prompt vindication of Charter rights, to provide effective relief in relation to the Board’s conduct in the future, to reduce the extent of any damage flowing from the breach, and to provide legal clarity to help prevent any future breach of a similar nature. While the remedies available under judicial review do not include Charter damages, Ward directs us to consider the existence of alternative remedies, not identical ones: para. 33.
The availability of judicial review is important for a second reason: it distinguishes this case from others in which the Court has crafted an elevated liability threshold in preference to a complete immunity. For example, the rationale for denying absolute immunity to prosecutors in Nelles v. Ontario,  2 S.C.R. 170, does not apply to claims against quasi-judicial regulatory boards. Lamer J. (as he then was) in Nelles found that none of the alternative remedies to a civil suit for malicious prosecution adequately redressed that wrong: p. 198. However, unlike in Nelles, a claimant who alleges the decision or action of a quasi-judicial regulatory body has infringed his or her Charter rights or freedoms is not without a remedy, given the availability of judicial review. Similarly, in Henry, which established an elevated liability threshold for Charter damages for failure of the prosecutor’s duty to disclose, the majority of the Court noted that such conduct is, for practical purposes, largely untouchable by way of judicial review: para. 49. In contrast to the claims arising out of alleged misconduct by prosecutors as in Nelles and Henry, there is a wide range of remedies available through judicial review for Charter breaches by quasi-judicial and regulatory boards such as this one. The availability and utility of the remedy of judicial review in this context supports a different remedial balance than was struck in Nelles and Henry.
The rationales underlying the common law and statutory immunity for quasi-judicial and regulatory decision-makers fall into two main interrelated categories. First, immunity from civil claims permits decision-makers to fairly and effectively make decisions by ensuring freedom from interference, which is necessary for their independence and impartiality: Morier, at pp. 737-38, citing Garnett v. Ferrand(1827), 6 B. & C. 611, 108 E.R. 576, at pp. 581-82, and Fray v. Blackburn (1863), 3 B. & S. 576, 122 E.R. 217. Second, immunity protects the capacity of these decision-making institutions to fulfill their functions without the distraction of time-consuming litigation.
These grounds for immunity resonate in the context of claims for Charter damages.
If actions for Charter damages were brought against the Board, it would inevitably be involved in defending those suits and thereby distracted from its statutory responsibilities. As Hogg, Monahan and Wright observe in relation to judicial immunity, the public relies on judges and the courts to resolve difficult problems, and “a judge would be placed in an intolerably vulnerable position, and there would be no end to litigation, if a disappointed litigant could turn around and bring fresh proceedings against the judge”: p. 283. The same may be said of quasi-judicial decision-makers: Ontario Law Reform Commission, Report on the Liability of the Crown (1989), at p. 29.
To conclude on this point, the policy reasons that underlie the common law and statutory immunities for regulatory and quasi-judicial boards like this one relate directly to the types of good governance concerns identified in Ward. Opening the Board to damages claims will distract it from its statutory duties, potentially have a chilling effect on its decision making, compromise its impartiality, and open up new and undesirable modes of collateral attack on its decisions.
Ms. Ernst argues that claims for Charter damages must be assessed on a case-by-case basis to determine whether damages would be an appropriate and just remedy. However, as has been pointed out many times, requiring a case-by-case examination of particular claims largely undermines the purpose of conferring immunity in the first place: Gonzalez, at para. 49.
Immunity is easily frustrated where the mere pleading of an allegation of bad faith or punitive conduct in a statement of claim can call into question a decision-maker’s conduct: Gonzalez, at para. 53. Even qualified immunity undermines the decision-maker’s ability to act impartially and independently, as the mere threat of litigation, achieved by artful pleadings, will require the decision-maker to engage with claims brought against him or her. As Lord Denning M.R. held, to be truly free in thought, judges should not be “plagued with allegations of malice or ill-will or bias or anything of the kind”: Sirros, at p. 136, cited by Morier, at pp. 739-40."
Note: The summary and body are drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.