Guimond v. Quebec (Attorney General)

Gonthier J. -- At issue in this appeal is whether authorization ought to have been granted to proceed by way of class action under art. 1003 of the Code of Civil Procedure, R.S.Q., c. C-25, to claim damages from the government for breach of constitutional rights of the applicant respondent and others in a similar position, namely, persons who had been sentenced to imprisonment upon default of payment of fines under statutory sentencing provisions alleged to infringe the Canadian Charter of Rights and Freedoms and the Charter of Human Rights and Freedoms, R.S.Q., c. C-12. The appellant appeals from the decision of the court below, reversing the motion judge’s denial of authorization for the class action.

Code of Civil Procedure, R.S.Q., c. C-25

1003. The court authorizes the bringing of the class action and ascribes the status of representative to the member it designates if of opinion that:

(a) the recourses of the members raise identical, similar or related questions of law or fact;

(b) the facts alleged seem to justify the conclusions sought;

(c) the composition of the group makes the application of article 59 or 67 difficult or impracticable; and

(d) the member to whom the court intends to ascribe the status of representative is in a position to represent the members adequately.

Between March 17, 1986 and September 27, 1989, the respondent Jocelyn Guimond was convicted of 34 infractions of the Quebec Highway Safety Code, R.S.Q., c. C-24.2, and was sentenced to payment of fines and costs. He paid a few small fines but failed to agree to a repayment schedule for the others. In lieu of payment, community service was imposed but the respondent desisted after two days. He was subsequently served with notice under s. 346 of the Code of Penal Procedure, R.S.Q., c. C-25.1 (“C.P.P.”), that the Crown intended to seek warrants of committal. Between March 12, 1990 and January 17, 1991, a justice of the peace issued 34 warrants of committal for the imprisonment of the respondent. He was sentenced under the C.P.P. (since amended) and its precursor, the Summary Convictions Act, R.S.Q., c. P-15, according to the formula set out in the Schedule to the C.P.P. and in Schedule A of the Summary Convictions Act. The term of imprisonment was calculated on the basis of the cumulative outstanding fines and costs plus three days of imprisonment for each offence committed as stipulated by art. 348 C.P.P. The respondent received consecutive sentences totalling 346 days of imprisonment which he commenced serving on February 8, 1991. He spent 49 days in prison, and the remainder of his sentence was satisfied on conditional release. The respondent never contested nor appealed his conviction nor his sentence, nor did he apply for habeas corpus.

On June 21, 1991, while on conditional release, the respondent sought judicial authorization under art. 1003 of the Code of Civil Procedure to initiate a class action for the purpose of obtaining damages to redress the alleged constitutional invalidity of his detention (and the detention of other members of the class), on the basis that the term of detention, as calculated under s. 348 C.P.P., contravened ss. 7 , 9 and 12 of the Canadian Charter of Rights and Freedoms (hereinafter the “Charter ”) and ss. 1, 24 and 25 of the Charter of Human Rights and Freedoms. The respondent’s action sought both a declaration of constitutional invalidity under s. 52 of the Constitution Act, 1982 and compensatory and moral damages, under art. 1053 of the Civil Code of Lower Canada and s. 24(1) of the Charter, in the amount of $300 per day of imprisonment for himself and each person likewise imprisoned for non-payment of fines, a group estimated to number 50,000.

On September 21, 1992, Pelletier J. of the Superior Court of Quebec rejected the respondent's application for authorization on the basis that a class action would not be an appropriate vehicle in this instance, as the respondent could easily challenge the facial validity of the statute on his own behalf for the benefit of the entire class; and further that the facts alleged did not seem to justify, prima facie, the conclusions sought, i.e., the respondent had failed to establish a good colour of right.

On January 25, 1995, the Quebec Court of Appeal reversed: [1995] R.J.Q. 380, 123 D.L.R. (4th) 236. Bisson J.A. (Rousseau-Houle J.A. concurring) held that authorization under art. 1003 should be granted and that the matter should be remitted to the Superior Court for determination of further procedural matters under arts. 1004 and 1005 of the Code of Civil Procedure. Bisson J.A. concluded that a class action was appropriate in this instance in that it did raise an appearance of right to claim damages for breach of Charter guarantees. Delisle J.A. agreed in part with the reasons of Bisson J.A., but dissented on the grounds that there was no appearance of right in this instance, as a declaration of legislative invalidity could not subsequently give rise to the liability of the Attorney General.

Leave to appeal to this Court was granted on June 1, 1995, [1995] 2 S.C.R. viii.

The issues raised may be framed as follows:

1. Did the Court of Appeal err in law in holding that the facts alleged by the respondent seem to justify the conclusions sought in accordance with art. 1003(b) of the Code of Civil Procedure?

2. Did the Court of Appeal err in law in holding that the recourses of the individual members raise identical, similar or related questions of law or fact in accordance with art. 1003(a) of the Code of Civil Procedure?

3. Did the Court of Appeal err in holding that the respondent is in a position to represent the members of the designated class adequately in accordance with art. 1003(d) of the Code of Civil Procedure?

4. Should the four criteria of art. 1003 of the Code of Civil Procedure be satisfied, does there exist a discretion to deny authorization for a class action seeking a declaration of constitutional invalidity?

In addition, the following constitutional questions were stated on November 17, 1995:

1. Do s. 63.10 and Schedule “A” of the Summary Convictions Act, R.S.Q., c. P‑15 -- which were in force until September 30, 1990 -- and ss. 347 and 348 and the schedule of the Code of Penal Procedure, R.S.Q., c. C‑25.1 -- as they read until October 31, 1993 -- concerning the imprisonment of a defendant who has failed to pay a fine -- infringe the rights guaranteed by ss. 7 , 9 or 12 of the Canadian Charter of Rights and Freedoms ?

2. If the answer to question 1 is yes, are they limits prescribed by law that can be demonstrably justified pursuant to s. 1 of the Charter?

As the court below also recognized, the crux of the respondent’s application is the claim for damages. The allegation of constitutional invalidity is merely a necessary prerequisite to this principal issue. The authorization for the class action is, therefore, focussed on the issue of damages, the availability of which is raised squarely under art. 1003(b) and is determinative of this appeal. This paragraph is thus the appropriate starting point for the analysis of the issues raised. Since I reach the conclusion that the question addressed with respect to art. 1003(b) is to be answered in the affirmative, it will not be necessary to canvass the subsequent issues.

Central to this appeal is the application of art. 1003(b) of the Code of Civil Procedure. This article has been interpreted previously both by this Court and the Court of Appeal of Quebec. The principles governing its application were summarized by Brossard J.A., for a unanimous court, in Berdah v. Nolisair International Inc., [1991] R.D.J. 417 (C.A.), at pp. 420-21:

[translation] One of the conditions set out in art. 1003(b) C.C.P. to justify the bringing of a class action is that “the facts alleged seem to justify the conclusions sought”. It is now well settled that this provision merely requires proof of a good colour of right. The court need not be convinced that the claim is valid; rather, as with an injunction, this condition will be met simply by showing a prima facie right (Comité régional des usagers des transports en commun de Québec v. Quebec Urban Community Transit Commission, [1981] 1 S.C.R. 424; Desmeules v. Hydro‑Québec, [1987] R.J.Q. 428 (Sup. Ct.); Lasalle v. Kaplan, C.A. Mtl. 500‑09‑300905‑851, January 19, 1988 (J.E. 88-310) (12 Q.A.C. 44)).

And later, in dismissing the appeal against the decision of the Superior Court to deny authorization for a class action, Brossard J.A. concluded (at p. 422):

[translation] In short, given all the special circumstances of this case, and without necessarily endorsing all the grounds relied upon by the trial judge in making his decision, it seems to me that this is a case where the Superior Court did not improperly exercise the relative discretion conferred upon it by statute when it denied authorization to bring a class action and that, accordingly, there is no reason to intervene against the judgment rendered.

As Brossard J.A. observed, a parallel can be drawn between the Superior Court’s exercise of discretion in requests for interlocutory injunctive relief and the court’s decision-making power under art. 1003(b). The threshold the applicant must meet to obtain an interlocutory injunction, as set out by art. 752 of the Code of Civil Procedure, was canvassed by the Court of Appeal in Pérusse v. Commissaires d’écoles de St-Léonard de Port-Maurice, [1970] C.A. 324, at pp. 329-30:

[translation] The judge from whom it is sought cannot either allow it or refuse it by giving the evidence submitted to him, at this stage, the effect of final evidence adduced for a decision on the merits of the action; he should only weigh the evidence so that he can decide whether the applicant does or does not appear to have a good and valid right to enforce: as to the right, the applicant is entitled to have the respondent refrain from or cease performing a given operation if there is a good colour of right; and as to the consequences of granting or refusing the injunction, the judge will be guided in arriving at his interlocutory decision by the serious likelihood that, one way or another, a situation of fact or of law will occur which cannot be remedied by the final judgment.

This passage was quoted by Chouinard J. in Comité régional des usagers des transports en commun de Québec v. Quebec Urban Community Transit Commission, [1981] 1 S.C.R. 424. In that case, this Court observed that the Court of Appeal had erred in drawing a parallel between art. 1003(b) and art. 847 of the Code of Civil Procedure which governs the remedy of evocation and which imports a higher threshold than art. 752, one which requires that “the facts alleged justify the conclusions sought”. Despite the similarity in wording between arts. 1003(b) and 847, Chouinard J. noted a crucial difference (at p. 429):

The words “seem to justify” and “justify” cannot have the same effect unless the presence of the verb “to seem” in the first phrase is disregarded. This is where the reference to the passage cited from the opinion of Brossard J.A. in St-Léonard, supra, has its application, as to the meaning to be given to the verb “to seem”, as in my opinion it applies equally in the context of art. 1003. The legislator intended the Court to reject entirely any frivolous or manifestly improper action, and authorize only those in which the facts alleged disclose a good colour of right.

I conclude, therefore, that the phrase "seem to justify" means that there must be in the judge's view a good colour of right in order for him to authorize the action, though he is not thereby required to make any determination as to the merits in law of the conclusions, in light of the facts alleged. [Emphasis added.]

Rothman J.A. reiterated this principle in Comité d'environnement de la Baie Inc. v. Société d’électrolyse et de chimie Alcan Ltée, [1990] R.J.Q. 655 (C.A.), at p. 661:

In order to justify the granting of authorization, therefore, it is sufficient if the facts alleged by the applicant in the motion indicate a serious colour of right (une apparence sérieuse de droit) for determination by the Court.

It is clear that the better parallel may be drawn with art. 752 of the Code of Civil Procedure. Under art. 1003(b) as with interlocutory injunctive relief, the judge is not called upon to determine the merits of the case but instead must exercise the discretion afforded to the Superior Court to decide whether the application has “une apparence sérieuse de droit”.

The existence of the discretion to deny authorization on the basis that the case lacks “une apparence sérieuse de droit” is not inconsistent with the jurisprudence and academic commentary to the effect that the language of art. 1003 is mandatory: once the four conditions of the provision are met, the authorization must issue. See Gelmini v. Procureur général du Québec, [1982] C.A. 560; Nagar v. Ville de Montréal, [1988] R.J.Q. 2219 (Sup. Ct.), aff’d [1991] R.D.J. 604 (C.A.); L. Ducharme and Y. Lauzon, “Le recours collectif”, in Formation permanente du Barreau du Québec, No. 94, 1985. The discretion resides in the determination of whether the case meets the threshold of art. 1003, namely whether the case possesses “une apparence sérieuse de droit” and not whether having established the necessary criteria, the applicant may nonetheless be denied authorization on the basis of diverse arguments of appropriateness or convenience. The question to be decided by this Court in this appeal is, therefore, whether Pelletier J.’s exercise of his discretion to deny authorization to the respondent was reasonable in the circumstances.

In approaching this question, it is helpful to review briefly the authorities on the liability of the Crown for damages arising from the enactment of laws subsequently determined to be unconstitutional. The general principle, that an action in tort for civil damages will not lie, was enunciated clearly in this Court’s decision in Welbridge Holdings Ltd. v. Greater Winnipeg, [1971] S.C.R. 957. In that case, the plaintiff company commenced work on certain lands on the basis of a municipal zoning by-law passed by the defendant municipality. The by-law was subsequently declared ultra vires, and the company sought damages against the municipality. This Court rejected the action in negligence. As Laskin J. (as he then was) reasoned for the Court, at p. 969:

In exercising [a discretionary legislative] authority, a municipality (no less than a provincial Legislature or the Parliament of Canada) may act beyond its powers in the ultimate view of a Court, albeit it acted on the advice of counsel. It would be incredible to say in such circumstances that it owed a duty of care giving rise to liability in damages for its breach. "Invalidity is not the test of fault and it should not be the test of liability": see Davis, 3 Administrative Law Treatise, 1958, at p. 487.

The principle was reiterated by this Court in Central Canada Potash Co. v. Government of Saskatchewan, [1979] 1 S.C.R. 42. As Delisle J.A. observed in his dissenting reasons in the court below, at p. 253 D.L.R.:

[translation] In terms of the civil law, there is no doubt that the Crown is not negligent when it enacts a law that is subsequently declared invalid, any more than the public official who attends to its implementation. In Central Canada Potash Co. v. Government of Saskatchewan (1978), 88 D.L.R. (3d) 609, [1979] 1 S.C.R. 42, 6 C.C. L.T. 265, Martland J., on behalf of the court, said the following about a government official’s enforcement of legislation that is subsequently held to be ultra vires (at p. [90 S.C.R.]):

In my opinion it would be unfortunate, in a federal state such as Canada, if it were to be held that a government official, charged with the enforcement of legislation, could be held to be guilty of intimidation because of his enforcement of the statute whenever a statute whose provisions he is under a duty to enforce is subsequently held to be ultra vires.

Professor Cooper-Stephenson, in his text Charter Damages Claims (1990), at pp. 330-32, has interpreted these cases as establishing a “claim of right” defence to civil damages claims arising from legislation which had been declared constitutionally invalid. He submits that these cases endorse a qualified immunity from tort claims where governmental actors have committed a good faith and reasonable error in enforcing legislation which is subsequently found to violate the Constitution. Dussault and Borgeat extend this argument to its logical conclusion stating, in their treatise, Administrative Law (2nd ed. 1990), vol. 5, that Parliament itself enjoys the immunity (at p. 177):

In our parliamentary system of government, Parliament or a legislature of a province cannot be held liable for anything it does in exercising its legislative powers. The law is the source of duty, as much for citizens as for the Administration, and while a wrong and damaging failure to respect the law may for anyone raise a liability, it is hard to imagine that either Parliament or a legislature can as the lawmaker be held accountable for harm caused to an individual following the enactment of legislation. [Footnotes omitted.]

Of course, with the enactment of the Charter, a plaintiff is not limited to an action for damages under the general law of civil liability but could, in theory, seek compensatory and punitive damages as an “appropriate and just” remedy under s. 24(1). Academic commentators have generally been of the view that the “claim of right” doctrine applies with equal force under s. 24(1). As M. L. Pilkington argued in her article on "Monetary Redress for Charter Infringement", in R. J. Sharpe, ed., Charter Litigation (1987), 307, at pp. 319-20:

In assessing whether a remedy is appropriate and just, a court must consider not only the need to implement the guarantees of the Charter, but also the need to do so without unduly interfering with the effective operation of government.

. . .

A qualified immunity for government officials is a means of balancing the protection of constitutional rights against the needs of effective government, or, in other words, determining whether a remedy is appropriate and just in the circumstances. A government official is obliged to exercise power in good faith and to comply with "settled, indisputable" law defining constitutional rights. However, if the official acts reasonably in the light of the current state of the law and it is only subsequently determined that the action was unconstitutional, there will be no liability. To hold the official liable in this latter situation might "deter his willingness to execute his office with the decisiveness and judgment required by the public good". [Emphasis added.]

Professor Garant concludes in Droit administratif (3rd ed. 1991), vol. 2, at p. 487:

[translation] It seems that there is no right to obtain a compensatory remedy from the government where the Charter violation results from a statute that is declared unconstitutional.

The jurisprudence under the Charter also supports this view. In the Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, this Court relied in part on the “de facto doctrine” to maintain “rights, obligations and other effects” arising under unilingual legislation ruled unconstitutional. As the Court defined the doctrine, at pp. 756 and 757:

“The rule of law is that acts of a person assuming to exercise the functions of an office to which he has no legal title are, as regards third persons, . . . legal and binding.”

. . .

Thus the de facto doctrine will save those rights, obligations and other effects which have arisen out of actions performed pursuant to invalid Acts of the Manitoba Legislature by public private bodies corporate, courts, judges, and persons exercising statutory powers and public officials. Such rights, obligations and other effects are, and will always be, enforceable and unassailable.

The Divisional Court of Ontario in Crown Trust Co. v. The Queen in right of Ontario (1986), 26 D.L.R. (4th) 41, at pp. 48-49, applied the de facto doctrine to deny an action for Charter damages arising from an unconstitutional statute. As Henry J. explained:

[W]e consider the law to be clear that no cause of action exists for the conduct of the appellants as agents and representatives of the registrar when acting within the authority of the legislation in the absence of any allegation of wrongful conduct, bad faith, negligence or collateral purpose. The statutes are to be given full force and effect until set aside.

It is against this backdrop that the comments of Lamer C.J. in Schachter v. Canada, [1992] 2 S.C.R. 679, at p. 720, are read:

An individual remedy under s. 24(1) of the Charter will rarely be available in conjunction with an action under s. 52 of the Constitution Act, 1982 . Ordinarily, where a provision is declared unconstitutional and immediately struck down pursuant to s. 52, that will be the end of the matter. No retroactive s. 24 remedy will be available.

Although it cannot be said that damages can never be obtained following a declaration of constitutional invalidity, it is true, as a general rule, that an action for damages under s. 24(1) of the Charter cannot be coupled with a declaratory action for invalidity under s. 52 of the Constitution Act, 1982 . The respondent based his claim for damages under s. 24(1) on a bare allegation of unconstitutionality. The facts did not warrant a departure from the general rule. Pelletier J.’s conclusion that the case failed to meet the threshold under art. 1003(b) of “une apparence sérieuse de droit” was, therefore, a reasonable exercise of the discretion afforded to him under that article and accordingly, ought not to have been interfered with. It follows that the appeal should be allowed with costs throughout.

Having decided that Pelletier J. had a discretion under art. 1003(b) to deny authorization and that he exercised it reasonably, it is not necessary to consider the other paragraphs of art. 1003. Furthermore, while it is true that it is not necessary to pursue a class action to obtain a declaration of constitutional invalidity and therefore, that it is generally undesirable to do so, it is not necessary, in this case, to canvass whether or not there resides a residual discretion to deny authorization should the constituent criteria of art. 1003 be met.

In light of the foregoing, the answer to the first question is yes. It is not necessary to answer the second, third and fourth questions nor the constitutional questions stated in this case.