November 16th, 2016
Today the Chief Justice of the BC Supreme Court published reasons for judgement finding that the ‘indivisible injury’ assessment that developed under tort law is equally applicable when damages are being assessed for a Charter breach.
In today’s case (Henry v. British Columbia) the Court awarded the Plaintiff over $8 million in damages for a wrongful conviction and some 27 years of incarceration. Prior to trial the Plaintiff settled with other Defendants. The Province sought to have those settlements deducted from the awarded damages arguing they all covered a single indivisible harm. Chief Justice Hinkson agreed and in ordering that the principles of ‘indivisible injury’ assessment apply to Charter damages provided the following reasons:
 The plaintiff alleged that but for the separate actions or inactions of the City employees and provincial Crown counsel, he would not have been convicted and incarcerated for almost 27 years, and that but for the action or inaction of Canada he would have been released far sooner than he was.
 In tort law, where there are multiple causes of injuries, the Court must determine whether the injuries are divisible or indivisible when assessing whether double recovery principles will apply: Athey v. Leonati,  3 S.C.R. 458 and E.D.G. v. Hammer, 2003 SCC 52. I see no reason why such an approach is not equally applicable to an award of Charter damages.
 While the allegations against the Settling Defendants and non-settling defendants were based upon different allegations of fault, the relief sought was essentially the same: compensation for a wrongful conviction and some 27 years of incarceration. I find that the results alleged to have occurred from the causes of action pleaded against the City and the Province were indivisible.
 While the ambit of the compensation sought from the City defendants and the Province was broader than that sought from Canada, the compensation sought from Canada was in large measure subsumed in the award the plaintiff recovered against the Province. Thus, these claims are also indivisible.
 I am mindful of the fact that the plaintiff was obliged to proceed to trial by all of the original defendants and obliged by the Province to proceed to judgment before recovering any damages from it. The Alberta Court of Appeal in Bedard rejected that factor as a basis for not deducting settlement proceeds from damages awarded at trial. At para. 13, the Court confirmed the prevailing principle that the plaintiff cannot receive more in damages than the court awarded at trial.
 In Hogarth v. Rocky Mountain Slate Inc., 2013 ABCA 57, leave to appeal ref’d  S.C.C.A. No. 160, the point was made even more starkly:
 The effect of Bedard is that the risk of a Pierringer agreement falls on the plaintiff. If it settles and “under-recovers” from the settling defendant, it will not be able to make up that shortfall from the non-settling defendants. On the other hand, if it “over-recovers” from the settling defendant (as in Bedard) it will not be allowed to keep the windfall.
 I conclude that Hogarth correctly summarizes the effect of the decisions in Dos Santos and Bedard. In the result, I find that at least some of the settlement funds paid by the Settling Defendants to the plaintiff must be deducted from the damages that I have found the plaintiff is owed by the Province.