Charter Damage Lawsuit Requires Constitutional Question Notice

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, finding that notice under the Constitutional Questions Act is required for parties seeking Charter damages as part of a personal injury lawsuit.

In today’s case (Fong v. British Columbia) the Plaintiff was injured as a result of a “hard takedown” arrest carried out by officers of the RCMP. 

He successfully sued for damages which included, in addition to compensatory damages, $2,000 for breaches of the Plaintiff’s ss. 8 and 9 Charter rights.  In the course of the lawsuit the Plaintiff never gave notice under the Constitutional Question Act, R.S.B.C. 1996, c. 68 [CQA].  BC’s Attorney General succeeded in obtaining an order that the Charter damages, in these circumstances, must be set aside.

In finding that in cases for Charter damages notice under the CQA must be given Mr. Justice Blok provided the following reasons:

[24]         I agree that the wording of the CQA does not support a distinction being drawn between cases involving constitutional challenges and cases involving claims for other forms of Charterrelief.  I note, however, that in Eaton (see para. 54 quoted above) the Supreme Court of Canada left open the possibility of de facto notice being sufficient, or even that prejudice arising from the lack of notice might have to be shown.  From this, it is reasonable to surmise that in cases involving modest or perhaps minimal consequences, for example, a finding of de facto notice might be more readily made.

[25]         I do not have to come to a firm conclusion on that point, however, because in this case there is no reasonable basis on which I could conclude that de facto notice was given to the AGBC in this case.  From what I can discern, the pleadings in which Charter issues were raised in this case were only sent to federal counsel, not to the AGBC or to counsel acting for the AGBC, and so there was no notice whatsoever to the AGBC in this case.  In these circumstances, the award of Charter damages could not stand.

[26]         I agree with the AGBC that the Court’s options were: (1) decline to vacate the award of Charter damages and require the parties to deal with the issue through an appeal; (2) reopen the trial to allow the AGBC to make submissions on the issue; or (3) with the consent of the parties, vary the award to delete the Charter damages and add the same sum to the award of non-pecuniary damages.  In light of the consent that was given by all parties in this matter, the third option was the obvious choice.

[27]         These, then, are the reasons why I reopened and varied the judgment.