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CROWN - Actions by and against Crown - Statutory defences, immunities, and bars to actions

Wednesday, March 28, 2018 @ 8:34 AM  

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Appeal by Canada from a decision striking, with leave to amend, statements of claim filed by Whaling and Liang. Their claims sought damages because of the unconstitutionality of the retrospective application of the Abolition of Early Parole Act. The Supreme Court of Canada had ruled that the retrospective application of the Act was a violation of Whaling’s right to be free of double jeopardy. The BC Court of Appeal, in Liang’s case, held that the retrospective loss of the right to early parole effectively increased the penalty for the offence for which he was convicted, violating his right to benefit of the lesser punishment available. Whaling and Liang each commenced a proposed class proceeding. Their statements of claim were substantially the same. On Canada’s motion, the court struck the statements of claim because the facts as pleaded did not disclose recklessness, bad faith or abuse of power such as to ground a claim for relief under section 24(1) of the Canadian Charter of Rights and Freedoms, 1982. The court did not rule that the cause of action advanced by Whaling and Liang was not known to law. Canada’s argument that the applicable limitation period had expired was rejected, the court finding that the applicable limitation period was six years because the causes of action arose otherwise than in a province.

HELD: Appeal allowed in part. It was not plain and obvious that the doctrine of legislative immunity was an absolute bar to the actions. A question as to whether Carter damages could be awarded because of conduct that was clearly wrong, in bad faith or an abuse of power in the enactment of a law subsequently found unconstitutional possessed a sufficient legal component to be justiciable. The limitations argument engaged questions of where the causes of action arose, which were not canvassed in the Federal Court and not debated on appeal, such that the appeal was allowed on this ground. Res judicata did not apply to bar the claims.

Whaling v. Canada (Attorney General), [2018] F.C.J. No. 257, Federal Court of Appeal, J.D.D. Pelletier, D.G. Near and J.M. Woods JJ.A., February 16, 2018. Digest No. TLD-March262018007