Facts

The facts of the case were simple and quite scandalous: Tsige, a bank employee, had been looking at Jones’ banking records. Over a period of four years, Tsige had accessed her banking records more than 174 times, obviously contrary to bank policy. Although no information had been published, distributed, or recorded by the respondent in any way, she had access to information that included not only transaction details, but also address, date of birth, and marital status. The reason? Tsige was involved in an ongoing financial dispute with her partner. This partner, in an interesting twist of fate, happened to be none other than Jones’ former husband. Accessing the banking records allowed Tsige to determine whether—and how much—child support was being paid between the former spouses. Not surprisingly, Jones was not too pleased when she found out about Tsige’s ongoing research and appealed to the courts to weigh in on whether people were really still entitled to look over fences to see “what goes on in the plaintiff’s land.”

Expanding the Common Law: The Tort of Invasion of Seclusion

In finding that Ontario law recognizes the right to bring a civil action for damages for the invasion of personal privacy, the OCA emphasized how deeply engrained the value of privacy has become in modern Canadian society. In the context of Charter jurisprudence, the Supreme Court of Canada has held that s.8 affords constitutional protection of a person’s reasonable expectation of privacy (see: Hunter v. Southam, [1984] 2 SCR 145). While the Charter does not apply directly to disputes between private parties, the common law must be developed in a way that is informed by its values. Furthermore, the right to privacy is enshrined in international instruments such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

After canvassing cases and academic literature on the topic, Sharpe J. concluded that the right to privacy encompasses four torts “tied together by a common theme and name, but comprising different elements and protecting different interests”: (1) intrusion upon the plaintiff’s seclusion or solitude, (2) public disclosure of embarrassing private facts about the plaintiff, (3) publicity which places the plaintiff in a false light in the public eye, and (4) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

The tort that was relevant to the case was the first: intrusion upon the plaintiff’s seclusion. The elements of this tort were set out as follows: first, the defendant’s conduct must be intentional, which includes recklessness; second, the defendant must have invaded, without lawful justification, the plaintiff’s “private affairs or concerns”; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

The OCA found that actual proof of harm to a recognized economic interest was not necessary in order to make out the tort of invasion of seclusion. In addressing the perpetual “floodgates” concern that looms on the horizon whenever a court expands the common law, Sharpe J. assured that “claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.”

Finally, on the issue of damages, the OCA held that since the plaintiff in such cases will not suffer from provable pecuniary loss, symbolic or moral damages will be awarded. Such damages should “be modest but sufficient to mark the wrong that has been done.” The OCA fixed the amount at $20,000. Applied to the facts, Sharpe J. found that Tsige had committed the tort of intrusion upon seclusion. In deciding the proper amount of damages, the OCA weighed countervailing consideration: on one hand, Tsige’s actions “were deliberate… and arose from a complex web of domestic arrangements likely to provoke strong feelings of animosity.” On the other hand, Jones had not suffered any economic loss or public embarrassment. Thus, the amount awarded was $10,000, the mid-point of the range identified.

Analysis:

The Role of the Courts

Whenever courts consider expanding the common law, judges tiptoe a line between cultivating the law in a way that aligns it with the demands of changing circumstance and refraining from stepping on the toes of the legislature as the democratically accountable branch. In this case, this tension was made apparent by the contrasting views of the Ontario Superior Court of Justice and the OCA. The former held that the existence of an intricate framework of privacy legislation in Ontario (e.g. Freedom of Information and Privacy Act, Personal Health Information Protection Act, among others) suggested that the legislature had turned its mind to the issue of privacy and chose not to extend protection to situations like the present.

The OCA held that recognizing a cause of action in the case would not overstep the bounds of appropriate judicial activity since it would only be an incremental change that would keep the law in pace with the changing needs of society. Furthermore, the OCA found it had a role to step in where the legislature failed to act in the name of ‘justice’: “most importantly, we are presented in this case with facts that cry out for a remedy.”

The Value of Privacy

Sharpe J. appropriately qualified the expanded scope of protection for privacy by recognizing that it must often be balanced against—and sometimes sacrificed for—other competing interests. The value that society places on privacy must co-exist with values of freedom of information and freedom of the press. The right to privacy, while important, is never absolute.

The Difficulty of Erecting Fences

Judicial decisions to step in to protect privacy interests seem to be critical at a time when people’s personal information is both widespread and accessible to others but also more difficult to protect by people’s own efforts.  In today’s day and age, “routinely kept electronic databases render our most personal financial information vulnerable… sensitive information as to our health is also available, as are records of books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have traveled.” In today’s day and age, it is difficult to protect privacy simply by building a higher fence.

The RMS Titanic struck an iceberg on her maiden voyage from England to New York City. The ship sank on April 15, 1912. History repeated itself nearly 100 years later when the Costa Concordia hit a rock off the Coast of Italy and sunk on January 13, 2012. As of January 30, 2012, 17 are dead, and 15 are still missing. Since the incident, charges and lawsuits have started to roll in: criminal against the captain, and financial against Carnival Corp., the ship owner and the world’s largest cruise operator.

Francesco Schettino, the ship’s captain, has been charged with multiple counts of manslaughter and abandoning ship before the evacuation of more than 4,200 passengers and crew was complete.

There is prospect for an extended legal battle, with lawyers from around the world launching class action and individual suits against Carnival Corp. Codacons, Italy’s best known consumer group, a German lawyer, and two American law firms are filing a class action suit in Miami, Florida with the intention of seeking $165,000 per passenger.

This figure contrasts Costa’s “hush money” offer. Costa is offering all passengers aboard the Concordia €11,000 (roughly $14,000) in compensation in return for an agreement to drop any legal action. The settlement also offered the standard reimbursement for the full cost of the cruise, related travel expenses and additional funds for medical expenses after the accident, lost baggage, and psychological trauma incurred. While some passengers are taking the money, eager to put this trauma behind them, others are offended by the meagre sum, having suffered a traumatic experience and losing priceless items when the ship sunk.

This offer brings up the tension between the advantages of settling and the gamble of taking on litigation. While the sum of damages the suit is anticipated to award is more than ten times that of Costa’s offer, victims would receive the money immediately. The trial may be as far as ten years away, with the possibility of appeal, and then further delays in receiving the damages award. Mr. Ramadori, a lawyer for Codacon warned, “Today’s proposal from Costa simply exploits the lengthy Italian justice system to scare people away from the class action” – though this may just be an attempt to pressure passengers to join the suit.

While the Titanic spurred a major motion picture and several Oscars, this disaster will likely bring many more lawsuits and a spectacle for the world.

A Different Kind of Roadblock: The Indian Act Today

There was great excitement in Aboriginal communities last Tuesday, January 24, when hopes of repealing the highly contentious Indian Act came to the forefront at the Crown-First Nations Gathering in Ottawa. Those feelings were quickly replaced with disappointment when Prime Minister Harper called for creative changes to the Indian Act, rather than taking steps to abolish it. Ironically, this year will mark the 200th anniversary of the War of 1812, when Aboriginals joined forces with the Crown.

The Indian Act was enacted in 1876 alongside the Constitution, granting jurisdiction of related matters to the federal government under section 91(24). The Act largely covers issues of status, the administration of land and various rights, and the fiduciary duty the Crown has toward Aboriginals. Since its adoption, amendments have been made to better reflect the needs and concerns of the community, particularly with Bill C-31 in 1985, which made significant changes to how the Act grants Indian status.

Recent problems like the Attawipiskat housing crisis have reinvigorated discussions on the Act, with many First Nations groups pointing to the need for change in their relationship with the Crown. National Chief of the Assembly of First Nations Shawn Atleo has commented that the Act is a “painful obstacle to re-establishing any meaningful partnership.” For now, that obstacle seems like it’s here to stay.

Cultural Pluralism? Not in Our House

A “heinous crime against humanity” is what the Canadian embassy of Afghanistan called the deaths of four women Monday morning. Mohammad Shafia, his wife Tooba Mohammad Yahya, and their son Hamed were each convicted of four counts of first degree murder at a Kingston, Ontario courthouse. Zainab, Sahar, and Geeti Shafia, as well as Rona Amir Mohammed were found dead last June, drowned in a Nissan in the Kingston Mills locks.

The prosecution successfully argued that the car had been pushed into the lock by one of the family members driving behind. The damage on both vehicles, as well as Google searches by Hamed on “how to kill,” and “bodies of water,” were used as corroborating evidence. Wiretaps revealed the father’s disdain towards the girls, with remarks about how their deaths preserved the family honour, and how he hoped the devil would defecate on each of their graves.

The defence argued that the parents were together in a hotel room. Mohammed admitted to a private investigator that he had, in fact, hit the car and heard a splash, but did not tell anyone at the time, and not for several months after either.

Many have identified the deaths as honour killings, a cultural justification for murder and disownership found in some areas of the Middle East and South and Central Asia. Such crimes are mostly perpetrated against women for bringing shame to the family, tribe, or wider community, by dressing provocatively, or engaging in sanctioned sexual behaviour. At stake in these situations is the preservation of a family’s position and moral standing in the respective society. Bloodshed is, often, what the family believes to be the only thing that will purify the pollution caused.

The family has already appealed the decision, but they haven’t yet gotten around to fixing an error of a mistaken date of birth on one of the gravestones. Who knows if they ever will.

Six months ago, a St. John-area lawyer filed a class action lawsuit against the province of Newfoundland and Labrador. The lawyer, Ches Crosbie, claims that the provincial government is responsible for the injuries suffered by motorists who crash into moose on the road.

On Tuesday of last week, Justice Richard LeBlanc of the Supreme Court of Newfoundland and Labrador supported certification of the case. Thus, Ches Crosbie and the victims he represents were given the green light to proceed with their class action lawsuit, which may have wide legal ramifications for class proceedings and for the duty of care owed by public authorities.

A Novel Statement of Claim

The statement of claim that Ches Crosbie is putting forward has no legal precedence that either side is aware of. None of the allegations noted have ever been tested in court.

At the heart of Crosbie’s case is the population of moose in Newfoundland and Labrador. Specifically, the plaintiffs point to the fact that these animals are not native to the province. Because they are alien species brought in by earlier settlers, the government is responsible for controlling the growth of the species. “Wildlife practices of the defendant have allowed the moose population on the Island to reach numbers in the range of 120,000 to 200,000 … multiplying the danger of moose collisions for users of the highways,” reads the statement of claim. The statement of claim also adds: the “government made a decision to bring this non-native invasive species here about a hundred years ago,” but the government has “avoided taking responsibility for managing the hazard it created.”

Accordingly, the plaintiffs demand that the Newfoundland and Labrador government take actions to cut the population of moose by half as a means to protect drivers. As well, moose near roads should be allowed to be killed by officials and fences should be installed along roads to keep them out.

Certification of Class Proceeding

Another big question raised by this case is the requirements of class proceedings. Although Justice LeBlanc backed the certification of the case, he did raise questions about who could be considered in the class. Initially, the class was restricted to those who were involved in vehicular accidents on provincial roads that needed hospital treatment. These victims must also be residents of Newfoundland and Labrador. Justice LeBlanc questioned why victims who received outpatient care or who reside outside of the province should be excluded from the class. In response to this inquiry, the lawyer responded: “Restricting the class definition to make it more manageable to a lower number of the most deserving people in terms of their injuries was something that we thought was wise to do in an environment where there’d be a lot of skepticism… But in light of the judge’s comments now, and in light of the fact that this class action seems to have a lot more credibility … we’re going to have to have another look at that.” As it stands, there are approximately 69 to 100 victims represented by Crosbie, all of whom needed hospital care after the accident in the last ten years. If Crosbie takes LeBlanc J.’s advice to heart, then the class could easily balloon to thousands of people. (The government of Newfoundland and Labrador has not yet filed a statement of defense, and the government lawyers have not blocked any initiatives to enlarge the class of plaintiffs.)

The victims whom Crosbie is working with are seeking not only personal injury and general compensation, but also actions from the government, including moose fencing, a cull of the herd, etc.

Duty of Care Owed by Public Authorities (Just v. BC)

At first glance, this case may seem sensational. Upon further examination, though, the legal issue at the heart of this case should remind us of a case that was heard some 20 years ago. The legal analysis will turn on the duty of care that is owed by public authorities. The guiding case is the 1989 Supreme Court of Canada case of Just v. BC. In the earlier case, the issue of governmental liability was raised when a boulder fell on a car, killing one passenger and seriously injuring another. The plaintiff claimed that the government had neglected to properly maintain the highway. At the trial and Court of Appeal levels, the judges held the government of British Columbia to not be liable in tort, as the entire inspection system and its implementation are policy matters.

What ultimately comes out of the Just case is a test for when governmental actions are exempt from liability, to as to allow government actors to exercise their duty to formulate public policy without intervention from the courts. This is fundamental to the division of powers in our country.

First, the majority of the judges on the Supreme Court found there to be general proximity because “the Department of Highways could readily foresee the risk that harm might befall users of a highway if it were not reasonably maintained.” Once general proximity is established, the Court in turned their attention to statutory exemptions and the difference between an operational decision and a policy decision. That forms the crux of the Just test. “Government agencies may be exempt from the application of the traditional tort law duty of care if an explicit statutory exemption exists or if the decision arose as a result of a policy decision,” summarizes the Court.

The Court found that there was no statutory exemption, so it proceeded to distinguish policy decisions from operational decisions, explicitly noting that the former concerns budgetary allotments for departments or government agencies. This kind of investigation usually includes an inquiry into where on the governmental hierarchy the decision was made, whether it was done with advanced planning as opposed to being executed on the ground, etc.

While it was a policy decision to have safeguards on the highway, the majority of the Court found that the government failed to exercise due care in the operation of the policy — in the manner and quality of the inspection system. Having found no statutory exemption and having dismissed it as a policy decision, the Court ordered a new trial to more fully investigate the facts of the case (i.e. budgetary restrains, availability of personnel, etc.) in Just.

Budgetary Considerations

“I think that resources will be the key issue, [as in] to what extent can the government plead straitened fiscal circumstances in a negligence claim?” states Prof. Allan Hutchinson.

Following the decision in Just v. BC and the earlier Anns test, the Supreme Court of Newfoundland and Labrador will likely find there to be a proximate relationship between the government and the motorists injured or killed in moose accidents. It is foreseeable that moose, left unfenced, will run onto the road and get hit by cars. Similarly, there would be no statutory exemptions in this case. So, the case ultimately rests on the distinction between policy and operational decisions — the Just test. In trying to plead that it is a matter of policy, the government is likely to point to economic hardships and the provincial deficit. Due to constraints on its budget, the provincial government could not have taken additional measures to maintain the moose population and keep them away from roads and highways, or so the argument would go. Depending largely on the facts of this case, that line of reasoning may or may not succeed.

On the other hand, some scholars argue that this case will probably settle out of court. The legal issues raised are not entirely novel, and the litigation process can become drawn out and increasingly expensive.

One case in particular, Canada (Attorney General) v. McArthur, has caught the public’s imagination. The facts are fantastical. It involves one of Canada’s most notorious criminals, a hostage-taking, prison-breaking bank robber, who is trying to sue the Crown for damages stemming from the extraordinary time he spent in solitary confinement.

The Suit

In 2006, Michiel McArthur brought a suit against his warden and the appellant James Blackler, who is an Agent of the Crown. McArthur alleged that the warden’s decisions to keep McArthur in solitary confinement for four years and six months from 1994-1999 were unlawful. In his Statement of Claim, McArthur sought damages on the claim that he suffered “severe emotional and psychological injury and harm” as a result of his inability to visit with his wife and daughter, as well as from being denied access to schooling, rehabilitation and recreation programs. He further claimed that his solitary confinement was based on the warden’s “malicious ill-will” towards McArthur, and as such, arbitrary and cruel and unusual punishment, contrary to ss. 9 and 12 of the Charter.

The Crimes

Any ill – will on the part of the warden for this particular inmate may be understandable. McArthur has two apparent proclivities: robbing banks and escaping from prison once he’s caught. In 1983, McArthur robbed a bank in Hepworth, Ontario and shot a citizen who tried to stop his escape. He was apprehended, and put in Milhaven Penitentiary, a maximum-security prison. A short time after, he escaped, and proceeded to rob three more banks over the next 14 months before he was arrested again. While out on automatic early release, he robbed another bank in Port Perry, Ontario, shooting the bank manager in the leg, and brutally wounding three police officers.Read more about it here.

All told, since 1968, McArthur has been convicted of 160 crimes, including four counts of attempted murder. He has staged brazen escapes not only from Milhaven, but also from Collins Bay Penitentiary and Saskatchewan Penitentiary. In 1990, he wrote a book his escapades entitled “I’d Rather be Wanted than Had, the Memoirs of an Unrepentant Bank Robber.” So, you can see how his relations with his jailers might be a bit strained.

Time Served

Eventually, McArthur was apprehended and once again sentenced to prison, where he was placed in solitary for an 18-month stint. In 1996, McArthur elects to be moved to Kingston penitentiary, but just before he is scheduled to arrive, Blackler is appointed the warden there. Together again, Blackler locks McArthur away in solitary in Kingston for a 14 month period. You know the saying: escape from jail once, shame on you. Escape from jail four times, shame on me! I imagine the warden, Blackler, keeps the only key on a string tied around his neck, but that’s just conjecture.

During all these months in solitary confinement, McArthur has had some serious time to think. As you can guess from the title of his book, he has not been mourning his victims or expressing regret for his crimes.  Instead, he has been thinking of a way to get paid, as clearly, his bank robbing days are behind him. Unfortunately, he may have concocted a clever means to make money:  Blackler may have cut some administrative corners in his decisions to keep his least favorite inmate in solitary. Lucky for McArthur, there are rules that govern warden’s decisions, and those rules apply to every single incarcerated person.

The Issue

McArthur is seeking compensation for damages caused by Blackler’s decision to keep him in solitary confinement. A crucial element of McArthur’s argument for damages is proof that Blackler acted contrary to the Corrections and Conditional Release Act, S.C. 1992, c. 20 which regulates the segregation order to place inmates into solitary confinement. This would require a review on the lawfulness of Blackler’s decision in his role as warden. Administrative law tells us the usual way to review decisions of the executive branch of government is through judicial review; in this case because the decision maker is regulated by a federal statute, that judicial review would be through the Federal Court of Canada.

McArthur, however, is not seeking judicial review of Blackler’s decision because he is not interested in an order that the decision was contrary to law, but is only interested in that finding as it is useful to his claim for damages. At issue is whether McArthur can bring his claim for damages directly in the provincial superior court, or whether he must first get an order from the Federal Court that Blackler acted contrary to law before he proceeds with a claim for financial compensation.

Judicial History

In 2006, the Superior Court of Ontario, the motions judge accepted the AG’s arguments based on the Federal Court of Appeal’s decision in Grenier that allowing the action to proceed would be denying the intention stated in the Federal Courts Act, R.S.C. 1985, c. F-7 to grant the Federal Court exclusive jurisdiction in matters of judicial review. Therefore, it was found that a plaintiff alleging a compensable loss as a result of an administrative decision must first have the lawfulness of the decision determined by the Federal Court.

In 2008, the Ontario Court of Appeal in Telezone decided that Grenier had in fact not been correctly decided, and that the Attorney General had not established that the plaintiff’s claim fell within s. 18 (para 94) of the Federal Courts Act. In their view, s. 18 of the FCA is concerned with the remedies of prerogative writs and other extraordinary remedies, not simply relief by way of damages.

Essentially, the Federal Court has exclusive jurisdiction in matters pertaining to causes of action in administrative law, which are to be put for judicial review, but not contract or tort law, and certainly not constitutional law.

The Law

The SCC decided that the provincial superior court has jurisdiction over both McArthur’s claim for damages and the question of the constitutionality of Blakley’s segregation order.

Regarding McArthur’s claim for damages, while the issue of the lawfulness of Blackler’s segregation orders is in play, it is an element of a private law cause of action over which the provincial superior court has jurisdiction. “There is nothing in the federal legislation that says the provincial courts can only determine some – but not all – elements of his monetary claims against the Crown” (para 13). McArthur, then, does not have to seek judicial review of Blackler’s segregation order to make out his claim for damages.

Regarding the constitutional challenges, the Court held that the FCA “cannot operate to prevent provincial superior court scrutiny of the constitutionality of the conduct of federal officials” (para 14). While the Constitution authorizes the creation of additional of the Federal Court, that does not preclude the provincial superior court’s concurrent jurisdiction over the Constitution.

Looking at this case from the lens of access to justice, it is a good thing that the SCC has told the Federal Court that it’s not allowed to be the only one to decide matters of such national importance as challenges to the Crown. Had the SCC decided against McArthur, claimants seeking compensation for wrongs committed by the Crown would first have to seek an order declaring a decision unlawful before proceeding with a separate action for compensation. Given the costs involved in making a legal claim, this process would have functioned as a barrier to insulate the Crown from liability for its actions.  The mode adopted by the Court more readily holds the Crown liable for its wrongs.

If that’s the case, then Michiel McArthur – bank-robber, hostage-taker and three-time prison-escapee – has actually done the world some good.

It is unnecessary to dwell on the specific facts of this murder-suicide. All that is necessary to know is that the heirs of the deceased brought an action for civil liability against the father’s succession, claiming compensatory and punitive damages. Both the Quebec Superior Court and Court of Appeal refused to award compensation for the mother’s pain, suffering and loss of expectation of life because evidence showed that she died almost instantaneously. The seemingly arbitrary nature of abstract legal tests for different heads of damages is illustrated in the rule relied upon by the lower courts. A court cannot award compensatory damages unless the two part test outlined in Pantel v. Air Canada, [1975] 1 S.C.R. 472, was satisfied: first, a sufficiently long period of time must elapse between the wrongful fact and the death; and second, the victim must have actually felt pain. The rationale for this test was discussed in Driver et al. v. Coca Cola Ltd., [1961] S.C.R. 20, which held that damages suffered by a victim passes onto his heirs, but the shortening of life cannot be included in damages because it is caused by the death. If death is instantaneous, the victim did not suffer, and thus the heirs cannot claim damages for pain and suffering, when the victim obviously did not suffer.

Trudel J. for the Quebec Superior Court also held that punitive damages could not be awarded because they are “incidental” to an award of compensatory damages for moral or material prejudice. This second rule originates from the SCC’s decision in Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345 (“Beliveau St-Jacques”). Like the case at hand, Beliveau St-Jacques involved a claim for punitive damages based on s. 49 of the under the Quebec Charter of human rights and freedoms, R.S.Q., c. C-12 (“Quebec Charter”). In that case, the majority (5-2) held that an action for punitive damages based s. 49 of the Quebec Charter cannot be dissociated from the principles of civil liability. Such an action can only be incidental to a principal action seeking compensation for moral or material prejudice. It is for that reason that the absence of compensatory damages meant that the heirs could not get punitive damages. Trudel J. also noted that punitive damages could not be awarded because the death of the father, the wrongdoer, meant that there was no deterrent component to the award.

Rays of Light at the End of this Dark Tunnel

Although the SCC stuck to the original amounts of damages awarded, it did take a progressive step forward and hold that the heirs could receive punitive damages despite the death of the wrongdoer.

LeBel J. writing for the unanimous SCC distinguished Béliveau St‑Jacques on the basis that it was a case involving a public compensation system. He wrote,

Outside that context, there is no reason not to recognize the autonomous nature of exemplary [or punitive] damages and thus give this remedy the full scope and flexibility that its incorporation into the [Quebec] Charter demands.  I note that the [Quebec] Charter’s quasi‑constitutional status means that it prevails over general legal rules in the Quebec normative order.  If the autonomy of the right to exemplary damages conferred by the [Quebec] Charter is denied by imposing on those asserting it the additional burden of first proving that they are entitled to bring an action that they may not necessarily wish or be able to bring, this amounts to making the implementation of [Quebec] Charter rights and freedoms subject to the rules applicable to civil law actions.  There is no justification for maintaining this obstacle.

In addition to disentangling punitive damages from compensatory damages, the SCC also broadened the scope for rationalizing punitive damages. The latter type of damages is designed to demonstrate society’s disapproval of a person’s conduct, and thus focuses on an assessment of the conduct as opposed to the extent  to which  compensation is required for reparation or actual prejudice. LeBel J. criticized the Quebec courts’ approach to punitive damages  as being “strict” and “narrow” and failing to recognize the broader function of such damages: punishment, deterrence and denunciation. At paragraph 53, denunciation is recognized as an objective of exemplary damages in Quebec civil law.

Having expanded the functions of punitive damages, the SCC then held that punitive damages should be awarded because the father intentionally and unlawfully interfered with his family’s right to life under the Charter.

In the greater scheme of life, the SCC’s decision will not bring back the innocent lives lost. It will not restore the families who have been broken by this tragedy. Nonetheless, the SCC’s progressive expansion of the functions of punitive damages does have some significance. This development, albeit, relatively trivial in an objective sense, marks a legal triumph infused with sentimental value, over the abstract and seemingly arbitrary lines that delineate between liability and no liability.

Marta Piresferreira, an former account manager with Bell Mobility (Bell), launched a lawsuit for damages against Bell for mental suffering that she allegedly suffered as a response to a series of conflicts with her former manager, Richard Ayotte.  Piresferreira had a track record for being an exceptional employee, though her most recent performance appraisal in 2004 indicated room for improvement existed. Prior to the incident that gave rise to this lawsuit, Ayotte initiated a process to develop a Performance Improvement Plan (“PIP”) for Piresferreira.

On May 12, 2005, Ayotte (who had a history of aggressive behaviour and verbal abuse) yelled and swore at Piresferreira because she failed to schedule a client meeting. After Piresferreira unsuccessfully tried to schedule the meeting, Ayotte pushed her left shoulder. Piresferreira left the office. Shortly after this incident, she was given a negative PIP.

Bell addressed Piresferreira’s complaint about the assault by giving her the opportunity to receive a formal apology from Ayotte. She declined to receive the apology. Instead, Bell gave Ayotte a disciplinary warning and required him to participate in conflict resolution courses.  The day after the issue was formally resolved by Bell’s HR department, Piresferreira went on sick leave for “stress leave due to anxiety – dealing with work harassment.”  She never returned and subsequently commenced litigation for wrongful dismissal and tort damages.

At trial, Aitken J. determined that Bell and Ayotte were jointly and severally liable for:

1. The tort of negligent infliction of mental suffering;
2. The tort of intentional infliction of mental suffering;
3. Battery and assault.

In addition, she held that Piresferreira had been constructively dismissed. Her continued employment at Bell was impossible because the company merely “relocated” Ayotte within the same office, and offered to change her reporting structure.

Five issues arose in  Ayotte’s appeal to the Ontario Court of Appeal. I will focus on the first issue of the appeal decision, negligent infliction of mental suffering. Specifically, the Court of Appeal inquired whether Aitken J. erred in finding that the tort of negligent infliction of mental suffering was available in the context of the employment relationship.

Policy Strikes Again: No tort of negligent infliction of mental suffering is available in employment relationships

Piresferreira argued that Bell owed her a duty of care through her contractual relationship with the company as manifested in Bell’s Code of Business Conduct. Juriansz J.A., writing for the Court of Appeal, determined that a common law duty of care existed even in the absence of a contractual term. For concurrent tort liability to be available there must be a common law duty of care that would exist even in the absence of the specific contractual term which created the corresponding contractual obligation.  In Central & Eastern Trust Co. v. Rafuse, [1986] 2 S.C.R. 147, Le Dain J. differentiated between a duty that is created by the contract and an independent common law duty.

Juriansz J.A. then applied the Anns test (formulated by the House of Lords in Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.) ), which was adopted by the SCC in Nielsen v. Kamloops (City), [1984] 2 S.C.R. 2. This test is used to determine whether a duty of care exists.  It involves (i) asking whether the relationship between the plaintiff and the defendant is sufficiently close or “proximate” to render damages reasonably foreseeable, and (ii) whether there are countervailing policy considerations why the duty should be limited or not recognized.

The Court of Appeal held that a prima facie duty of care existed based on the sufficiently close relationship between the parties, and the presence of a reasonably foreseeable injury.  Its analysis then turned to the question of whether there were negating policy considerations that prevented the duty of care from being recognized. Unsurprisingly, the Court of Appeal determined that recognizing such a tort would better left to the expertise of the legislature. Imposing a duty to protect employees from the variety of workplace incidents that may cause mental suffering too greatly expanded the scope of liability for employers. It is for that policy reason that the prima facie duty was negated.

It is clear that expanding employers’ liability for mental suffering would create many problems. I agree with the Court of Appeal’s decision to overturn Aitken J.’s finding on this particular issue.  Recognizing this  tort would open up a floodgate of claims from disgruntled and dissatisfied employees unhappy with their current situation.  Generally speaking, workplace conflicts are commonplace.  Under this tort, an employer might be held liable for extreme frustration and duress resulting from a computer crash that erases many days worth of work.  Clearly, this tort would impose an unrealistic duty upon employers.

My Obiter Dictum:  Remoteness of Damages

In my opinion, the Court of Appeal’s decision invites a short discussion on the remoteness of damages.  Although the tort was not recognized, I pose the question, “What if it had been?”

The inquiry into this legal issue would begin by determining whether damages resulting from an particular act are too remote for damages to be awarded.  Remoteness is a legal concept that considers whether the damages are too far removed from an incident based on an objective standard.

In the fact scenario that I pose, Piresferreira’s mental injury would not be categorized as too remote. Most people would understandably react in a negative manner to a violation of their bodily integrity. Based on existing precedent, there are interesting outcomes that could occur.

In Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 , the SCC clarified the relationship between remoteness and the situation where a particular victim is prone to an “unexpectedly severe” reaction. According to that decision, only upon the satisfaction of the threshold requirement that a reasonably foreseeable injury be inflicted on a person of ordinary fortitude, the thin skull rule will apply.

The thin skull rule makes a defendant responsible for all of a plaintiff’s injuries, even if the injuries are more extensive than those that would be suffered by the average person.  This idea of  taking your victim as you find them ensures that victims are fully compensated for the full extent of their injuries.

The next step in this inquiry would be to analyze the application of the thin skull rule to Piresferreira’s situation once the remoteness of damages issue had been addressed. An average person would likely not have suffered to the extent that Piresferreira did.  Among other things, she experienced post-traumatic stress disorder, a major depressive disorder, and anxiety. She was allegedly unable to work at all until her retirement (5 years).

All of these consequences were accepted to be a result of a push to the shoulder, which left no physical injury, and Bell’s subsequent actions taken after the incident.

In this case, the average person certainly would experience some form of mental anguish after being subjected to the treatment that Piresferreira experienced.  However, whether it would go as far as post-traumatic stress disorder is questionable.  For the purpose of this hypothetical situation, Ayotte and Bell would likely be found liable for the full extent of damages, as the thin-skull rule would be applicable. This hypothetical illustrates the implications of recognizing a duty of care for  mental suffering experienced in the workplace. For the time being, judicial deference to precedent has kept this potential floodgate closed. The question remains whether it will remain closed with the ever-changing demands of the job.


At issue is the reach of ss. 18 and 18.1 of the Federal Courts Act, which together give the Federal Court exclusive jurisdiction to grant prerogative writs (such as certiorari, prohibition and mandamus) or other declaratory relief against “any federal board, commission or tribunal”. In each of the cases before the Court, the plaintiffs are seeking damages from the Crown as a result of such a decision. For instance, in Telezone v. Attorney General, Telezone is seeking damages from Industry Canada for allegedly breaching a contract that was created when it issued a call for applications for telecommunications licenses. The company is not seeking to have the original decision changed, and is not asking the court to compel Industry Canada to issue a license. This is important, as it influences whether s. 18 applies in this case.

Collateral Attaaaaaacccckkkkkkkk!!!
The Crown’s response in each action has been to rely on Grenier to argue that any time the success of an action depends on a finding that a federal board’s decision was invalid or unlawful, the plaintiff must first apply to the Federal Court to determine that preliminary issue. This is where the doctrine of collateral attack comes in. If a plaintiff is trying to nullify or alter a final decision in a proceeding outside of one specifically for that purpose, that is considered a collateral attack. Here, the Crown contends that the plaintiffs are indirectly challenging the decisions of federal boards or tribunals, and therefore sections 18 and 18.1 require them to do so in Federal Court. (The Supreme Court has discussed the doctrine of collateral attack, albeit in the criminal context, in Toronto v. CUPE, 2003 SCC 63)

In the criminal context, the collateral attack doctrine makes some amount of sense. If a decision is issued that leads to the prospect of criminal prosecution (for instance, disobeying an administrative order requiring a site cleanup for environmental reasons), then that decision should be challenged by way of judicial review; if the challenge is successful, then the basis of the prosecution will disappear. But those considerations do not apply in the civil context, especially where the plaintiff is seeking damages and not any judicial review remedy. In that context, there are many reasons to reject the Crown’s argument; Borins J.A. effectively summarized them in his judgment in the Telezone case, which dealt with four of the seven appeals at issue (2008 ONCA 892):

[I]f generally accepted, Grenier’s insistence that actions in provincial superior courts against the Crown are precluded without a prior application for judicial review would have far reaching implications with respect to principles of Crown liability. In particular, the Crown’s position as based on Grenier, would require split or multiple proceedings in different forums, waste scarce judicial resources, impose huge additional costs on plaintiffs, and subject every tort and contract claim against the Crown to a draconian 30-day limitation period.

I’m sure this passage will feature prominently in the respondents’ arguments this week. The most troubling implication of the Crown’s argument is the 30-day limitation period, which arises by virtue of s. 18.1 of the Federal Courts Act. That is an awfully short time to allow for the bringing of an action, especially when the damage from the decision may not be immediately apparent. In the case of an action for misfeasance in public office or other tort claims, the facts surrounding the decision may not be immediately available, and the plaintiff may not know within 30 days that an action exists. Provincial limitations statutes generally correct for this by using a discoverability rule — the limitation period does not start to run until the claim has been discovered. But s. 18.1 of the Federal Courts Act starts the limitations clock as soon as the decision is issued.

The section does allow a judge discretion to extend the time for the bringing of an action, but you can be sure that the Crown would fight any attempt to use that discretion, which provides yet another avenue of appeal, bogging down the court system and increasing costs for litigants. If the Supreme Court endorses the approach taken in Grenier, this will surely lead to another raft of case law on when it is appropriate to exercise the discretion allowed by s. 18.1, and possibly lead to more tortuous 5-part tests along the lines of Des Champs v. Conseil des écoles séparées catholiques de langue française de Prescott‑Russell, [1999] 3 S.C.R. 28, where Binnie J. attempted to set out the conditions under which a special 6-month limitation period would apply to actions by public authorities.

Happily, as Justice Borins makes clear, it doesn’t have to be this way. If s. 18 is read as conferring exclusive jurisdiction over particular remedies, then there is no problem. Since the section gives the Federal Court “exclusive original jurisdiction … to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief” against federal boards, and “to hear and determine any application or other proceeding for relief in the nature of” those remedies, such a reading is not particularly creative. Damages are not available in an application for judicial review, and so s. 18 should not apply to an action for damages.

A plaintiff seeking damages as a result of a decision by a federal actor, but who is not challenging the legal force of that decision, should be able to bring an action in superior court within whatever limitation period applies generally in the province. There are no reasons of interpretation or policy that support such a short limitation period, or that support the highly technical reading of s. 18 advocated in Grenier. The Supreme Court should see fit to stop the madness and set the record straight.

Years of experience with flu vaccines generally suggest that this one is safe, and while there are always risks of complications and side effects, these risks are tiny. Nevertheless, would it be possible for someone who has received the shot during the largest vaccination campaign in Canadian history and has been harmed by any of the (unlikely) side effects of the H1N1 flu vaccine to sue the government for compensation?

A case from the Supreme Court, as well as the general principles underpinning governmental liability in tort, suggest that the answer to this question is “no”.

In Lapierre v. Attorney General (Quebec), [1985] 1 S.C.R. 241, the plaintiff’s daughter received the measles vaccine as part of the Quebec government’s program to vaccinate almost 85,000 children every year against the illness. Days after receiving the shot, she contracted acute viral encephalitis, which resulted in her hospitalization for several months and left her almost totally (and permanently) disabled. As a result, her father sued the government; the Attorney General brought the vaccine manufacturer into the suit as well.

The Superior Court judge found that, “In such a case it can be said that the vaccination is deemed to be necessary and that the moral suasion exercised on the public to have it done is the equivalent of a vaccination compulsorily imposed.” Furthermore, the judge found that in the type of program undertaken by the government, there was an unavoidable risk that roughly one in every one-million people would suffer an allergic reaction resulting in death or serious injury. The “unavoidable” nature of the risk was enough to relieve the drug company of liability; however, the Superior Court found Quebec liable based on a “risk theory” of liability. The Attorney General appealed the judgment to the Quebec Court of Appeal, which allowed the appeal and dismissed the action.

At the Supreme Court, the father argued that “damages suffered or costs incurred by an individual for the benefit of the community must be borne by the latter.” This, essentially, is the risk theory of governmental liability that some scholars argue should replace the current private-law one. Chouinard J., for the Court, did not engage in any of the policy questions surrounding the issue, and did not determine whether the vaccine had indeed been compulsory. Instead, he reviewed the authorities and found that “the theory of risk is … not accepted in Quebec law.” The father’s appeal was dismissed.

The facts in Lapierre present a strong argument for those in favour of a separate public law of tort. Professor Harry Street, in Governmental Liability argues that “where the functioning of the administrative machine inflicts on an individual an exceptional loss,” the government should be liable. In his new book, Towards a Public Law of Tort, Tom Cornford, a lecturer in law at the University of Essex, makes a similar argument, suggesting (in part) that since public actors are involved in many activities that private persons are not (such as distributing welfare benefits, raising taxes, issuing licenses, and enforcing regulatory standards) it is difficult to apply tort principles that were developed in the context of relationships between private individuals.

Of course, this approach has been rejected by common law courts, where judges have stuck to Dicey’s “idea of equality”. That theory suggests that governments and government actors should be subject to the same law as everyone else. Historically, courts never had to deal with the tort-law implications of this theory, since the Crown was immune to tort actions. But as this immunity was stripped away by statute (in Canada, the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, and its various provincial counterparts) courts had to develop principles to adapt the private law of negligence to the world of government actors. The “policy/operational” distinction is what the common law came up with, which is known in Canada as “the Just test”, after Just v. British Columbia ([1989] 2 S.C.R. 1228). In that case, the driver of a car travelling on the Sea to Sky Highway connecting Vancouver and Whistler was seriously injured, and his daughter was killed, when the car was struck by a rock slide. The driver sued the B.C. government for failing to maintain a rock face next to a part of the roadway. Dickson C.J., for the 6-1 majority, held that

The duty of care should apply to a public authority unless there is a valid basis for its exclusion. A true policy decision undertaken by a government agency constitutes such a valid basis for exclusion. What constitutes a policy decision may vary infinitely and may be made at different levels although usually at a high level.

Were a case like Lapierre to be decided today, and in the common law (rather than civil law) context, it seems likely that a court would hold that the government does not owe a duty of care to an individual as a consequence of the broad (and high-level) policy decisions to make the H1N1 vaccine available to everyone and to encourage everyone to get vaccinated. Anyone bringing such a suit would likely fail.

However, that does not mean that the government should be able to get out of compensating anyone who is unfortunate enough to experience the serious side effects of the vaccine. In the aftermath of the Lapierre decision, Quebec enacted a no-fault compensation program for anyone who suffered injury as a result of a public immunization program, and made it apply retroactively to Lapierre. If the federal and provincial governments are going to encourage everyone to get vaccinated (and make vaccine available to everyone who wants it), they should be sure to plan for the small number of cases where that vaccine will do more harm than good.

Securities class actions are a relatively new development in Canada due to recent legislative changes. Amendments to the securities statutes in each province have opened doors and led to an increase in the filing of securities class actions. As of December 2005, Ontario, the first province to amend its Securities Act, imposes civil liability on the failure to give continuous disclosure. The rest of the provinces, other than PEI and the territories, have followed suit. In essence, if a director or officer fails to ensure that the company discloses adverse material information, then they will likely be faced with a class action lawsuit by shareholders who bought shares in the secondary market during the time period when the information was not disclosed.

These amendments were enforced to facilitate judicial economy, access to justice, and deterrence. However, the amendments incorporated restrictions such as a cap on damages and rules that required the losing side to pay the legal fees and expenses of the winning side, to discourage a tumultuous increase in suits similar to what has happened in the U.S.. Another amendment that facilitates access to justice is contingency fees, which are permitted in all provinces. The contingency fee agreement is required to be in writing, stating the terms as well as providing an estimate of the expected fee. Nonetheless, the agreement is not enforceable unless approved by the court. The agreements are subject to the discretion of the court. Atlas, as detailed below, shows us the courts’ practical considerations of contingency fee agreements and determining class counsel fees.

The Claim

A securities class action arising from the sale of trust units in Atlas Cold Storage Income Trust (Atlas), which began in 2004, alleged that the financial statements of Atlas were misrepresented.

Atlas, an income trust trading on the TSX, was designed to pay unit holders regular income distributions and provide them with an opportunity for capital appreciation as a result of Atlas’s ownership of Atlas Cold Storage Holdings Inc. (Atlas Holdings), operators of North America’s second largest temperature-controlled distribution network.

An investigation revealed that Atlas’s net earnings were overstated. Following the close of trading on August 29, 2003, Atlas announced that it would be restating its financial statements for fiscal years 2001 and 2002.

The plaintiffs alleged that Atlas misrepresented its prospectuses, financial statements and press releases.

The Settlement

Justice Lax of the Ontario Superior Court of Justice approved a $40 million settlement in exchange for releases and a dismissal of the class action. She fixed the class counsel’s fees at $6,300,000. The appellants argue that this amount is approximately one-half the amount agreed upon in their contingency fee agreements.

The Analysis

Section 32(2) of the Class Proceedings Act, 1992, S.O. 1992, c.6, states that an “agreement respecting fees and disbursements between a solicitor and a representative party is not enforceable unless approved by the court, on the motion of the solicitor.”

Justice Lax stated that the Class Counsel’s fees “are to be fixed and approved on the basis of whether they are fair and reasonable in all the circumstances.” What constitutes “fair and reasonable” must be determined “in light of the risk undertaken and the degree of success or result achieved.” She considered various factors in determining the reasonableness of the fee, including the time expended, factual and legal complexities, degree of responsibility, and degree of skill and competence.

She concluded that although it’s important to encourage experienced counsel to take on meritorious cases that are tough—especially because shareholder class actions are a newly developing area of law in Canada—in this case, the risks were not as great as counsel contended. The risks were spread across three firms and received support from the Class Proceedings Fund. She found class counsel to be “experienced, creative”, “thorough and diligent”, and “deserving of being fairly compensated at a level significantly above an amount that might be considered a reasonable base fee given the risks involved.” In light of the reduced risk, the result achieved was considered the best that could be achieved in the circumstances.

Justice MacFarland of the Ontario Court of Appeal, in agreement with Justice Lax, concluded that “[i]t was her call to make. Absent any palpable and overriding error, of which none have been demonstrated, it is not for this court to interfere.”

The fees, as per Justice Lax, were “$6,290,746 rounded to $6.3 million” which represented “roughly 16% of gross recovery and a more equitable sharing of net recovery as between class members and class counsel. This falls within the range of percentages of gross recovery that have been accepted in other cases.”

The Implications and Policy Considerations

Canadian courts are increasingly following the US style of litigation aimed at high risk and high reward class action suits. Although the cap on damages and the “loser pays” rule are intended to limit superfluous class actions, the sanction of contingency fees has led to an inevitable increase in class action lawsuits.

Atlas is a good example of the practical considerations that have to be kept in mind when considering contingency fees. The courts in Atlas disregarded the contingency fee agreement in favor of an amount that is “fair and reasonable”. No matter how well a contingency fee agreement is drafted, if the case does not warrant the work involved, or does not reflect the level of complexity or skill required, then the court will throw out the agreement and enforce their own “fair and reasonable” amount. Thus, a detailed analysis and investigation of the facts must be conducted before taking on any case. The question is whether contingency fee agreements hold any value in the face of court discretion.

Many criticize the court’s approach, stating that judges indulge in speculation based on the reasonableness of hours and the value of lawyers’ time, resulting in a decision that would be different depending on the mood of the lawyer. The decision to award fees is dependent on the discretion of the courts and subject to the bias of the judges.

Other than access to justice, legitimating contingency fees is intended to provide fair and reasonable compensation, and act as a real economic incentive for solicitors in the future to take on these sorts of cases and to do well. It is unclear at this point whether the sanction of contingency fees, in the face of the restrictions, will aid or hinder the ability of plaintiffs to bring securities class actions in Canada.

Back in June, leave to appeal was granted for City of Vancouver v. Alan Cameron Ward, 2009 BCCA 23. In 2002, Mr. Ward was arrested and detained for over four hours by the Vancouver police. The police had wrongly identified him as a suspect in a plot to pie former prime minister Jean Chretien. Mr. Ward’s car was seized for the purpose of investigating the assault or attempted assault. The situation worsened for Mr. Ward when corrections officers ordered him to remove all of his clothing except his underwear. Ultimately, the police conceded that there was no basis upon which Mr. Ward could be charged for assault or attempted assault.

At trial, Mr. Ward successfully made Charter claims against the City of Vancouver and the province of British Columbia. Tysoe J. of the British Columbia Supreme Court ordered the City to pay damages in the amounts of $100 and $5000 for the unreasonable search of his car and false imprisonment, respectively.  The court also ordered the Province to pay $5000 in damages stemming from the strip search, which was done in contravention with the detention center’s policies. All parties appealed Tysoe J.’s decision.

The Province argued before the BCCA that Tysoe J. erred by awarding damages for a Charter violation in the “absence of a commission of a tort, bad faith, abuse of power, negligence or wilful blindness on the part of the corrections officers”. The Province attempted to extend the mala fides requirement that exists for wrongly-exercised statutory discretion to Charter violations. Since this proposition has only been applied to statutes, the Province boldly argued that “the Charter is a statute to which the same rule must apply.” The Charter is not a mere statute; it is a bill of rights that forms part of Canada’s constitution. A separate regime has developed for the sole purpose of enforcing Charter rights against government actors. Importing a mala fides requirement into this regime would have the contradictory effect of immunizing government actors against the broad remedial powers of the courts under s. 24(1) of the Charter. As well, it would be unfair to force successful complainants to jump through an additional hoop in order to be compensated.

Bringing the Lower Courts in Line

Whereas trial courts have been willing to forgo the mala fides requirement, the appellate courts have taken conflicting positions on the issue. A case in point is Hawley v. Bapoo (2005), 76 O.R. (3d) 649 (Supt. Ct.), which was used by Tysoe J. to support awarding damages to Mr. Ward. In Hawley, Mr. Bapoo was assaulted by police officers whom were found to have acted without mala fides. According to Ducharme J.,

[The] requirement of mala fides, which has been imposed in some cases, is properly understood as a function of the qualified immunity given to government actors relying on legislation subsequently declared to be unconstitutional or judicial authority that is subsequently overruled. Outside of the qualified immunity context, proof of a state of mind independent of the Charter violation is not a necessary precondition for the awarding of Charter damages.

In Hawley, the police officers were found to be liable because their actions were not pursuant to any law declared unconstitutional.

Low J.A., writing the BCCA’s majority decision in City of Vancouver, considered Hawley in the context of the SCC decision in Mackin v. New Brunswick (Minister of Finance), [2001] 1 S.C.R. 405. In the absence of unconstitutional legislation, Low J.A. properly upheld Tysoe J.’s order. Yet, while Mr. Ward’s desired result was achieved, the decision falls short of providing certainty on the mala fides requirement. Instead of deciding whether such a requirement exists, Low J.A. focused more on the absence of unconstitutional legislation. A SCC pronouncement on City of Vancouver will bring much needed consistency to the lower courts.

Low J.A. did not consider the appeal in Hawley when deciding City of Vancouver. Yet it is interesting to note that when Hawley made it to the Ontario Court of Appeal in 2007, that court had already decided Ferri v. Ontario (Attorney General), 2007 ONCA 79. LaForme J.A. held in Ferri that mala fides was required for a constitutional tort. In Hawley, the Ontario Court of Appeal reversed Ducharme J.’s award of damages to Mr. Bapoo.

Balancing Individual Interests with Public Policy Concerns

As with many cases, public policy will play a key role in the SCC’s decision. The dissent in City of Vancouver, written by Saunders J.A., provides a valuable discussion on the public policy consequences of adopting a mala fides requirement. In support of a mala fides requirement, she points out that awarding damages to correct mistakes made in good faith will not encourage deterrence. The public will have to fund the costs of these seemingly purposeless awards. Saunders J.A. also brings up the possibility of individuals falling back on Charter claims to seek damages where their common law tort claims fail. These are valid policy concerns, and the challenge for the SCC will be to balance them with the equally valid goal of providing successful complainants with access to appropriate remedies.