Constitutional Law – Charter of Rights, Section 2 – Freedom of Expression
Constitutional Law – Charter of Rights, Section 24(1) – Damages
Constitutional Law – Constitution Act, Section 52(1)
Constitutional Law – Validity of Legislation – Charter of Rights, Section 1
The plaintiffs successfully claimed that their fundamental freedom of association right pursuant to s. 2(d) of the Charter was infringed by enactment of The Public Service Essential Services Act (PSESA). The Supreme Court of Canada suspended the declaration of invalidity of the legislation pursuant to s. 52(1) of the Constitution Act for one year. The plaintiffs then returned to the court to pursue their claim for damages under s. 24(1) of the Charter. There were two threshold issues: 1) did the court have jurisdiction to award damages under s. 24(1) of the Charter where the enactment of a statute was subsequently found to be unconstitutional; and 2) if so, was there a basis for awarding damages to the plaintiffs under s. 24(1) of the Charter.
HELD: The threshold issues were determined as follows: 1) s. 52(1) was designed to address unconstitutional laws enacted by the legislative branch of the government and s. 24(1) provides individuals with redress for unconstitutional actions by the executive branch of the government. The court held that it had jurisdiction to award s. 24(1) damages in conjunction with a declaration of invalidity under s. 52(1), but only in the most unusual of cases: a) where government engaged in conduct that was “clearly wrong, in bad faith or an abuse of power”; and b) relief was necessary to provide the claimant with an effective remedy. The plaintiffs argued that damages were due to compensate for the manner that the legislation was implemented by government officials. The plaintiff unions argued that the legislation empowered governmental agents to “overdesignate” the employees as a necessary result or effect of the statute. There was no determination that the governmental agents ever exercised their discretion in an unconstitutional manner. The court concluded that it did not have any jurisdiction under s. 24(1) to grant the plaintiffs a remedy in the action based on the way government officials designated employees as essential service workers pursuant to the PSESA. The court considered the second issue in any event; 2) the essence of the plaintiffs’ argument was that if the PSESA had not been enacted and implemented, unionized public sector employees would have had more bargaining power, which would have resulted in more financially beneficial collective agreements. The argument assumed that the right to strike resulted in financial gain for employees. The court found the assumption to be inconsistent with the Charter, the jurisprudence, and the role of the strike in labour relations disputes. The court also held that the plaintiffs did not establish a basis for an award of s. 24(1) damages because of the manner that the government officials exercised their discretion under the PSESA. The court next considered whether damages would be inappropriate or unjust even though they were shown to be functionally justified. The purpose of the legislation was a pressing and substantial one requiring policy choices to be made that were not dictated by the constitution. The court did not agree that the government ought to have known that the PSESA would be declared invalid. The plaintiffs did not establish a basis in law or in fact that could support a s. 24(1) award of damages.