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CIVIL PROCEDURE - Settlements - Judgments and orders - Set-off

Friday, January 05, 2018 @ 8:27 AM  


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Appeal by Henry from an order providing for the deduction of settlement funds he received from Canada and the City of Vancouver from the damage award he achieved at trial against the Province of British Columbia (BC). Henry spent 27 years in prison following 10 sexual assault convictions and his designation as a dangerous offender. He was released in 2009 and his appeal from the convictions was allowed. In 2011, Henry sued Canada, BC, Vancouver, and two members of the Vancouver police, seeking damages in respect of his arrest, conviction and imprisonment. Henry’s claims against Vancouver included negligent investigation and malicious misconduct by police, battery in connection with his forced participation in a line-up, and violations of his rights. Henry’s claims against the Province related to the conduct of Crown counsel in failing to make proper disclosure, and then eliciting evidence and making statements inconsistent with the undisclosed materials. Henry’s claim against Canada related to his applications for ministerial review over the years that were unsuccessful. Vancouver and Canada settled Henry’s claims. In the trial of his claims against BC, Henry was awarded aggregate damages of $8,086,692. BC successfully applied for an order that the aggregate settlement of $5,150,000 paid by Vancouver and Canada be deducted from the award.

HELD: Appeal dismissed. The damages flowing from the causes of action against BC were indivisible from the damages flowing from the causes of action against Vancouver and Canada. The judge was entitled to find that the damages Henry sought against Vancouver and BC were for breaches of his rights, resulting in his conviction and his 27 years in jail, and the damages sought against Canada were for failures resulting in Henry not being released from jail earlier. The damage award Henry achieved at trial would not have been higher had Canada and Vancouver not settled. The non-pecuniary damages awarded for vindication were not predicated on particular breaches of the Canadian Charter of Rights and Freedoms (Charter) by any particular defendant, but focused on the effects of the breaches. The consequences of the Charter breaches by BC and Vancouver were the same. The consequences of any Charter breaches by Canada related only to Henry’s continued incarceration and not his conviction, and would therefore have been less than the vindication damages assessed against BC. Henry’s battery claim against the City was distinct from the other claims, and although the battery was not trivial, the award it would have garnered at trial would have been small compared to the damages for the Charter breaches. It would not be appropriate to permit Henry to receive double recovery of an amount equal to the settlement proceeds paid by Vancouver when a minor portion of the proceeds would have been attributable to damages for the alleged battery.

Henry v. British Columbia (Attorney General), [2017] B.C.J. No. 2445, British Columbia Court of Appeal, M.E. Saunders, S.D. Frankel and D.F. Tysoe JJ.A., December 4, 2017. Digest No. TLD-January12018009