Can (or should) Governments be Liable in Damages for “Abuse of Power” in Legislating?


A troubling trend is developing whereby courts are allowing pleadings seeking to base claims  for damages against the Crown[1] for legislation that is found to be discriminatory.  This potential movement towards government liability, or any liability, for “abusive” or “negligent” legislating is an affront to the separation of powers, parliamentary privilege and parliamentary independence, including the principles of responsible government, and should be confronted and stopped before it gathers any credence.


In recent decisions, courts have allowed class actions to proceed when what is being alleged is abuse of authority by the Crown  (Executive Government) when it “acted deliberately and/or recklessly, and or in a grossly negligent manner, and/ or in bad faith and/or in abuse of its power by proposing, pursuing and passing a bill into law that it knew or ought to have known was unconstitutional and would infringe the constitutional rights of those to whom it applied…”[2], and “le Parlement a fait preuve de mauvaise foi ou a abusé de son pouvoir en adoptant ces dispositions discriminatoires[3]” [Parliament’s actions demonstrated bad faith or abuse of its power by adopting discriminatory legislative provisions]. The Federal Court decision cited an earlier Ontario Superior Court in the decision in Inlakhana v AG Canada [4] to the same effect:


[40]  I don’t know if this is indeed the proper characterization, but if it is true, as … pleaded, that the government “recklessly and without regard to the Canadian Charter of Rights and Freedoms continued to push legislation forward”, knowing it would fail and knowing that it was unconstitutional, then that government decision was clearly wrong, done in bad faith, and potentially an abuse of process.  Which, if any of that were true, could attract damages under s.24(1).

[44]…It’s not accurate to say damages can’t be a functional remedy for bad government behaviour related to ill-advised legislative decisions.  It would be rare, but not out of the question.”



These actions, and the refusal to strike them, are based on short obiter comments in the Supreme Court of Canada in Mackin v. New Brunswick (Minister of Finance)[5].  In that decision, Justice Gonthier seems to suggest that just and appropriate remedies for constitutional breaches are different from other civil remedies. They are, or can be, a separate class of remedies giving rise to damages.  Since they are a different class of damages they may be capable of overcoming the “limited immunity” afforded “public officials and legislative bodies”[6].


In theory, a plaintiff could seek compensatory and punitive damages by way of “appropriate and just” remedy under s. 24(1) of the Charter.  The limited immunity given to government is specifically a means of creating a balance between the protection of constitutional rights and the need for effective government.  In other words, this doctrine makes it possible to determine whether a remedy is appropriate and just in the circumstances.  Consequently, the reasons that inform the general principle of public law are also relevant in a Charter context.  Thus, the government and its representatives are required to exercise their powers in good faith and to respect the “established and indisputable” laws that define the constitutional rights of individuals. [7]

This analysis is seriously flawed in a couple of fundamental ways.  It fails to recognize that importance of the pre-existing constitutional architecture upon which the Charter was added.  There is no discussion as to why or how the separation of powers between the Crown and the legislature should be modified.  Nor is there any consideration of the significant consequences to the independence of the legislature and responsible government that would result from the conflation of the Crown and the legislature.


Simply stated, legislatures are responsible for legislating, not governments; and, the proceedings in a legislature are fully protected from being questioned or impeached in any court.   The protection enjoyed by legislature is not a “limited immunity” as perceived by Justice Gonthier[8], in 2002, but rather an absolute constitutional privilege confirmed by the Supreme Court in 2005[9]. These are fundamental constitutional principles at least as, if not more, deeply imbedded in the Constitution than Charter remedies.


The independence and constitutional separation between Parliament and the Crown is deep-seated in the Westminster system of government.  In the UK there was open civil war between Parliament and the King in the 17th century.  This culminated with the execution of Charles I, the Commonwealth under Cromwell, and most importantly the Bill of Rights, 1689 . The latter firmly established that Parliament and the not the Crown makes laws.  Parliament’s and not the Crown’s authority to make laws are found in Articles 1 and 2 of the Bill of Rights:


Article 1- That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal.

Article 2- That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal.

The principles relating to the powers of Parliament, vis-à-vis the Crown were further expanded in the 19th century with the advent of responsible government and the requirement that Ministers be accountable to the House of Commons.  It is also a requirement that the Government continuously enjoy the confidence of the House, otherwise it must resign or be dismissed by the Queen’s representative.


At the same time, the Bill of Rights, 1689 also confirmed and established Parliament’s independence from the Courts.  Article 9 provides:

Article 9-That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

This Article not only confirms the freedom of speech. It is also a constitutional impediment or restriction on jurisdiction and the powers of the courts.


The constitutional significance of Article 9, and the rest of the Bill of Rights, for the independence of Parliament from both the Crown and the courts has been confirmed by the Supreme Court of Canada.  In Vaid the Court makes a number of precise observations on this point.


First the court makes it clear that it is the constitutional role of Parliament to legislate, and deliberate including holding the government to account (paragraphs 41, 46, and 70).  This directly flows from Article 1 and 2 of the Bill of Rights.


Second, the court makes it clear that Parliament is independent from both the Crown (how could it be otherwise if the House holds the government to account?) and the courts.  The Court comments as follows:


There are few issues as important to our constitutional equilibrium as the relationship between the legislature and the other branches of the State on which the Constitution has conferred powers, namely the executive and the courts.

(Vaid para 4)


None of the parties to this proceeding questions the pre-eminent importance of the House of Commons as “the grand inquest of the nation”.  Nor is doubt thrown by any party on the need for its legislative activities to proceed unimpeded by any external body or institution, including the courts.

(Vaid para 20)


Parliamentary privilege, therefore, is one of the ways in which the fundamental constitutional separation of powers is respected.  In Canada, the principle has its roots in the preamble to our Constitution Act, 1867 which calls for “a Constitution similar in Principle to that of the United Kingdom”.  Each of the branches of the State is vouchsafed a measure of autonomy from the others.  Parliamentary privilege was partially codified in art. 9 of the U.K. Bill of Rights of 1689, 1 Will. & Mar. sess. 2, c. 2

(Vaid para 21)


It is evident from these passages that the separation of powers and the privileges of Parliament and the legislatures, including Article 9 of the Bill of Rights, 1689, form part of the Constitution of Canada.  The significance of this analysis for the scope of the Charter and other provisions of the Constitution Act 1982 is not lost on the Supreme Court.  Because the privileges of Parliament that guarantee its independence are constitutional, the Charter does not abrogate or interfere with these privileges (Vaid para 30).  Once a matter falls within privilege, it is the legislature, not the courts that must determine whether and to what extent any rights, including Charter rights, are to be dealt protected by legislation.


The only determination that can be made by the court is whether the matter at issue falls within a category of privilege, and if it does the courts have no jurisdiction to examine how decisions are made within the scope of that privilege.   The Supreme Court, in Vaid devotes a defined section to “  Once a Claim to Privilege Is Made Out, the Court Will Not Enquire Into the Merits of Its Exercise” and summarizes its position as follows:


47                              The distinction between defining the scope of a privilege, which is the function of the courts, and judging the appropriateness of its exercise, which is a matter for the legislative assembly, may sometimes be difficult to draw in practice…If the claim of privilege were justified, no court or body external to the House of Commons could enquire into the appellant Speaker’s reasons…Such outside bodies would have no jurisdiction to do so. [emphasis in the original]


Earlier in the decision the court had determined that control over proceedings, as set out in the Bill of Rights was clearly such a category.


“Categories” include freedom of speech …U.K. Bill of Rights of 1689, art. 9; control by the Houses of Parliament over “debates or proceedings in Parliament” (as guaranteed by the Bill of Rights of 1689)  (Vaid para 29.10)


There can be little disagreement that the introduction of a Bill, the support of a Bill, debate on the Bill.  and the passage of a Bill all fall within proceedings in Parliament, and that the decisions taken within the various processes are outside of the jurisdiction of the courts. To allow for the examination of the motives of any Member introducing, supporting or disagreeing with a Bill goes to the heart of Article 9 and parliamentary privilege which guarantees the independence of the legislature from the courts.


The fact that the persons introducing, supporting or persuading Parliament  of the merit of a Bill are Ministers is irrelevant.  There are numerous cases in which Ministers have successfully claimed the protection of parliamentary privilege enjoyed by the Houses, since they are part of the collective of Members that form each House.  This constitutional principle was succinctly summarized by the Federal Court of Appeal in Canada (Attorney General) v. Friends of the Canadian Wheat Board, 2012 FCA 183 . The court, relying on Supreme Court jurisprudence, noted:


[83]           There is also little doubt that “[t]he formulation and introduction of a bill are part of the legislative process with which the courts will not meddle”: Reference Re Canada Assistance Plan (B.C), above at p. 559, and that“[a] restraint on the executive in the introduction of legislation is a fetter on the sovereignty of Parliament itself”: Ibid. at p. 560.


It is also important to note that the passage of any legislation requires considerably more support than that of those Members who form part of the Executive (Ministers).  There can be no guarantee that any given Bill will pass through all stages of the legislative process and that there will be no amendments.  Further, the reason why any Member supports or does not support legislation cannot be assumed to be that given by any ar other Member, including Ministers.


Those involved in the cases at issue seem to have fallen into the fallacy that confuses “real politick” with constitutional roles and responsibilities.  It may be that the rules and standing orders of various legislatures seem to favour government and government business, and that caucus discipline by a party that holds a majority of seats in a legislature will most likely result in support for the initiatives of the government. But these factors do not allow for the wholesale dismissal of the constitutional roles and functions of the legislature in both holding the government to account and the adoption of legislation.  The ease or difficulty that the adoption of legislation encounters, and the reasons for support or opposition during the legislative process is not the business of the courts.  It is the business of the legislature.  That the legislature accepts the reasoning of the government, or chooses to be the “tool” used to turn questionable government policy into legislation, is the business of the legislature.  It, and it alone, has the capacity to question the government’s motive in seeking and promoting any proposed legislation in a Bill.  It is the legislature alone that will determine if it is prepared to make the government’s policy law.  At the same time, it has the sole constitutional responsibility to stop the government from doing so.  It does not have to allow the introduction, the debate or the adoption of a Bill.  The determination of these questions is the essence of parliamentary proceedings in which, and about which, the courts have no say.  It may be that a subsequent review by the courts of the Act as passed by Parliament, determines that all, or part, of it is inconsistent with the constitution and therefore of no force and effect; but, this is quite different from finding the Crown liable in damages for the enactment.  It is an act, or failure to act, by Parliament, and not the government that is at issue.  And questioning the motivation of Parliament is beyond the jurisdiction of the courts.


The second aspect of the cases being considered is the open invitation, seemingly accepted by the courts, to examine Hansard[10] to find instances where individual Members of House of Commons or Senators appear to have brought constitutional concerns before the legislature and to use those questions as evidence that the Government then knew the Bill was unconstitutional[11].   Such a use of records of a legislature is improper and such pleadings ought to have been struck out.  Allowing the use of Hansard to cite one Member and not others invites the courts into the debates of the legislature, since to understand the comments relied on in context, the courts will be required to review many other parts of Hansard to see responses, evidence of views of others and to judge the content of the debates.  In addition to the inherent unreliability of this evidence, as hearsay and opinion at best, this again is the constitutional mischief foreseen by the Bill of Rights, 1689 and which curtails the jurisdiction of the courts.  Although the evidentiary rules have bee somewhat relaxed to allow some use of Hansard in constitutional cases, the purpose is still limited to ascertaining the legislature’s intent when the intent itself is not clear from the legislation itself[12].  Even then the evidence is limited to what a Minister or other proponent (for example a Member introducing an amendment) says in introducing or explaining what his or her intent was for introducing the Bill or amendment.  Bootstrapping comments from non-government members to infer government intent or negligence is far removed from any known principles articulated by any court that has allowed Hansard evidence and defies all the limits that flow from Article 9 of the Bill of Rights, 1689.


Both of the cases considered involved motions to strike pleadings where the test is whether there is no possibility of success, or that the pleadings do not disclose or support a case known to the law.  The case for  government liability, or any liability for the enactment of legislation, is one such case.  There is no way to pursue such a case without distorting the constitution or violating Article 9.  In the leading UK case on the question[13], the House of Lords, on an appeal relating to a motion strike a pleading, determined that the pleadings ought to be struck, since the prosecution of the case would necessarily involve the courts in questioning or impeaching a proceeding in Parliament. A Mr. Pikin brought a case before the UK courts to strike down a provision of the British Railway Act on the basis that Parliament had been lied to by the promoters of amendments to the Act depriving certain landowners of compensation on reversion.  In short the courts were being asked to inquire into what was in the minds on legislators when they passed the Act, including consideration of the motives of those presenting the Bill.  In the House of Lords, Lords Reid, and Morris of Borth-y-Gest cited with approval Lord Campbell in Edinburgh and Dalkeith Railway Co. v Wauchope[14] that


It seems to me there is no foundation for it whatever; all that a court of justice can look to is the parliamentary roll; they see that an act has passed both House of Parliament, and that it has received the royal assent, and no court of justice can inquire into the manner in which it was introduced, or what passed in parliament during the various stages of its progress through both Houses.


After confirming that this is a correct statement of the constitutional position, Lord Reid continues that


The Court has no concern with the manner in which Parliament or its officers carrying out its Standing Orders perform these functions. Any attempts to prove that they were misled by fraud or otherwise would necessarily involve an enquiry into the manner in which they performed their functions…


the whole trend of authority for over a century is clearly against permitting any such investigation.


Lord Morris of Borth-y-Gest adds:

Nor is he entitled to examine proceedings in Parliament in order to shew that the Appellants by fraudulently misleading Parliament caused him loss…


And ..

there cannot be a triable issue in the Courts whether an Act of Parliament was improperly obtained.


It was noted by Lord Simon of Glaisdale, concurring, that there was no way of proceeding or examining the proposed case of without infringing the privileges of the House or questioning proceedings in Parliament.


The pleadings were ultimately struck out as disclosing no cause of action since the courts would be infringing parliamentary privilege by impeaching or questioning a proceeding in Parliament.  There would be no way to possibly proceed since all of the evidence involved would be to question the motives for the proposers of the Bill in going to Parliament, the possible speeches of individual parliamentarians, and the substance of various concerns and reasons given and considered in debate.


The Canadian Westminster system of government and its constitutional architecture similar in principle to that of the United Kingdom[15] was not changed by any constitutional amendments in 1982.  The constitutional separation of powers and parliamentary privileges were not altered in any way.  There was nothing done in those amendments that gave to the courts the jurisdiction that was specifically denied them in the Bill of Rights, 1689, the consequences of which were so meticulously considered in Pickin.


The two cases at issue have arisen because of a number of failed assumptions and misunderstandings about the constitution that have found their way into the body politic, including the legal community.  We have confused Government and the Crown with Parliament.  We have relied too much on an overly politicized and partisan view of government and the legislatures that again allows for conflating Government with the legislature and which encourages expediency and “streamlining” of parliamentary process.  We have attempted to simplify parliamentary processes to favour the government, when the problems to be considered have become more complex and which should require more, rather than less, parliamentary consideration of issues including accountability of the government to Parliamentt for the content of legislation introduced by Ministers.  Finally, we have allowed an unconsidered shift of accountability to the courts and away from the built-in parliamentary accountability framework of the Westminster system of government.


It is incumbent on the courts, and those arguing before them, to respect the privileges of Parliament and legislatures, and to reject attempts to attack the legislative process, and those who participate in it, including Government Ministers.  A completely independent legislature whose proceedings are protected from questioning or impeachment of its proceedings is the foundation of Canadian democracy and failure to protect it will unduly upset the hard-won system of responsible and accountable government established over centuries.


At the same time, it is incumbent on legislatures and their members to recognize and exercise their constitutional functions of legislating and deliberating, including holding the government to account.  This accountability includes not only the gotcha politics of question period but careful and thoughtful consideration of proposed legislation.  Following the enactment of the Charter this accountability must include considerations of constitutionality protected rights and freedoms affected by proposed legislation.  If legislators do their job, it is less likely that litigants will attempt to use the courts to do it for them, and less likely the courts will be tempted to do so.


Although motions to strike are rarely successful, courts should not shy away from granting them when to do so preserves and protects the constitutional separation of powers, and the independence and privileges of Parliament. In short, pleadings should be struck where necessary to protect Canadian constitutional democracy.


[1] Throughout I will us the term Crown to reference the Executive government, being Ministers and departmental officials.  Some cases use the term Crown, others use the executive or the government, but they all are referring to Ministers and government departments and officials.

[2] Amended Pleading in Whaling v AG Canada and Liang v AG Canada Federal Court files, T-455-16 and T-456-16.  The decision refusing a motion to strike the pleading have the same names, and is cited as 2018 FC 748 (hereafter Whaling).

[3]  Claim cited at para 7 of Procureur Générale du Canada c. Sarrazin, 2018 QCCA 1077 (hereafter Sarrazin)

[4] 2017 ONSC 821, 376 CRR (2d) 58, cited in Whaling pp 8-9.

[5] [2002] 1 S.C.R. 405, 2002 SCC 13,

[6] Para 78

[7] Para 79

[8] Note 6

[9] Vaid v Canada (House of Commons), 2005 SCC 30 (“Vaid”), particularly para 30.

[10] Record of debates.

[11] Plaintiff’s pleadings paragraphs 12-13, Whaling page 5.

[12] Pepper v Hart [1992] AC 593;  Rizzo v Rizzo Shoes [1998] 1 SCR 127; for a discussion see Graham Steel, “Who Speaks for Parliament?” 2017 (Spring) Canadian Parliamentary Review 6.

[13] British Railways Board v Pickin [1974] AC 765

[14] (1842) 8 Cl & F 710

[15] Preamble, Constitution Act, 1867.

Leave a Reply

Your email address will not be published. Required fields are marked *