Today's Supreme Court of Canada decision in Ravndahl v. Saskatchewan, 2009 SCC 7 deals with the distinction between personal claims arising under the Charter and the effect a declaration of invalidity under the Charter may have. The distinction is important because personal claims are subject to ordinary limitation of actions legislation.
Personal claims for constitutional relief are claims brought as an individual qua individual for a personal remedy and must be distinguished from claims enuring to affected members generally under an action for a declaration that a law is unconstitutional.
The Court writes:
A. Does Section 3 of The Limitation of Actions Act Apply to the Appellant's Claims for Personal Relief?
[16] It was argued below that statutory limitation periods do not apply to personal claims for constitutional relief. Personal claims for constitutional relief are claims brought as an individual qua individual for a personal remedy. As will be discussed below, personal claims in this sense must be distinguished from claims which may enure to affected persons generally under an action for a declaration that a law is unconstitutional.
[17] The argument that The Limitation of Actions Act does not apply to personal claims was abandoned before us, counsel for the appellant conceding that The Limitations of Actions Act applies to such claims. This is consistent with this Court's decision in Kingstreet Investments Ltd. v. New Brunswick (Finance), 2007 SCC 1, [2007] 1 S.C.R. 3, which held that limitation periods apply to claims for personal remedies that flow from the striking down of an unconstitutional statute.
B. Are the Appellant's Personal Claims Statute-Barred?
[18] In order to determine whether the appellant's personal claims are statute-barred, it is necessary to pinpoint when her cause of action arose. In my view, her cause of action arose on April 17, 1985 when s. 15 of the Charter came into effect. The appellant was denied benefits pursuant to the operation of s. 68(1) of the 1978 Act. However, she had no cognizable legal right upon which to base her claim until s. 15 of the Charter came into force. On April 17, 1985 a claim that the non-receipt of benefits pursuant to s. 68(1) of the 1978 Act discriminated against her on the basis of marital status became actionable. Although the appellant does not directly challenge the constitutionality of the 1978 Act, it is the operation of the 1978 Act that ultimately forms the basis of her discrimination claim. (These reasons assume, without deciding, that a challenge to a pre-Charter denial of benefits would be a permissible application of the Charter).
[19] Before this Court, the appellant argued that a new cause of action arose when the government adopted remedial legislation reinstating the pensions of persons who had remarried on or after April 17, 1985, and passed The Special Payment (Dependent Spouses) Act. This cause of action is said to rest on the under-inclusivity of this remedial legislation. The appellant did not benefit from the remedial regulations since she had remarried prior to April 17, 1985. She chose not to apply for the $80,000 lump-sum payment under The Special Payment (Dependent Spouses) Act, but instead brought this action on March 31, 2000.
[20] This argument cannot succeed. The appellant's cause of action must be based, as explained above, on the unconstitutionality of the 1978 Act. Subsequent attempts by the Legislature to lessen the discriminatory effects of legislation do not create a new cause of action in her favour. The remedial provisions did not affect her position in any way.
[21] In her written materials, the appellant, relying on Kingstreet, asserted that her personal claims are not statute-barred because the limitation period is rolling in nature, applying anew to each pension payment that she did not receive. However, it is clear that such a result is dependent on a new cause of action arising with each event.
[22] In Kingstreet, a new cause of action was said to arise each time a payment of tax was made under unconstitutional legislation. This case is distinguishable from the present case. As stated by this Court in
Where the government has collected taxes in violation of the Constitution, there can only be one possible remedy: restitution to the taxpayer. In contrast, where a scheme for benefits falls foul of the s. 15 guarantee of equal benefit of the law, we normally do not know that the legislature would have done.... [para. 108]
The renewing cause of action argument cannot succeed as it assumes that the benefits which were terminated would have otherwise been paid.
[23] In this case, there is but one cause of action which arose on April 17, 1985, when s. 15 of the Charter came into force.
[24] Since the appellant's cause of action arose on April 17, 1985 and the six-year limitation period set out s. 3 of The Limitation of Actions Act is applicable, the appellant's personal claims, which were commenced almost a decade out of time, are statute-barred.
C. The Claim for a Declaration of Constitutional Invalidity
[25] The Court of Appeal unanimously upheld the appellant's right to maintain her claims for a declaration under s. 52 of the Constitution Act, 1982 that the impugned legislative provisions were unconstitutional insofar as they operated on discriminatory grounds.
[26] It will be for the trial judge to determine whether a declaration of invalidity should be granted, and if so, what remedies if any should be granted. Because the appellant's personal claims are statute-barred, any remedies flowing from s. 52 would not be personal remedies, but would be remedies from which the appellant, as an affected person, might benefit.
[27] It is important to distinguish the appellant's personal, or in personam, remedies, brought by her as an individual, from an in rem remedy flowing from s. 52 that may extend a benefit to the appellant and all similarly affected persons. As stated in the factum of the intervener the Attorney General of Ontario:
Where legislation is found to be constitutionally underinclusive, the prospective remedial option chosen by the court might extend the benefit at issue through severance or reading in, or it might suspend the operation of the declaration of invalidity to allow the government to determine whether to cancel, modify, or extend the benefits at issue. If the unconstitutional underinclusive benefit is extended to include the [appellant's] Charter claiman[t] group, whether through the court's s. 52(1) declaration or through government's response to the court's s. 52(1) declaration, the [appellant], like any other eligible person [in the claimant group], reaps the benefit of the s. 52(1) declaration, even if the claimant does not obtain a personalized remedy from the court. [para. 45]
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