Giacomelli Estate v. The Attorney General of Canada Representing Her Majesty the Queen in Right of Canada [Indexed as: Giacomelli Estate v. Canada (Attorney General)]

90 O.R. (3d) 669

Court of Appeal for Ontario,

Sharpe, Gillese and Blair JJ.A.

May 2, 2008

Charter of Rights and Freedoms -- Standing -- Estates -- Estate not having standing to pursue claims under s. 7 or s. 15(1) of Charter after claimant's death -- Canadian Charter of Rights and Freedoms, ss. 7, 15(1).

G sued Canada for a declaration that Canada's refusal to compensate him and similarly-situated Italian-Canadians for their internment and forced labour during World War II violated ss. 7 and 15(1) of the Canadian Charter of Rights and Freedoms and for other relief. G died before the action came to trial. His estate trustees obtained an Order to Continue. Canada successfully moved to vary the Order to Continue so that the estate could only pursue the non-Charter claims. The estate trustees appealed.

Held, appeal dismissed.

An estate does not have standing to pursue relief under the Charter, subject to two exceptions which did not apply in this case. The lack of standing applies to claims under s. 7 of the Charter as well as to claims under s. 15(1), and is not restricted to class actions.

APPEAL from an order of Harris J., 2007 CanLII 32908 (ON SC), [2007] O.J. No. 3091, 161 C.R.R. (2d) 60 (S.C.J.), that the plaintiff's estate could not pursue Charter claims. [page670]

Cases referred to Canada (Attorney General) v. Hislop, [2007] 1 S.C.R. 429, [2007] S.C.J. No. 10, 2007 SCC 10, 278 D.L.R. (4th) 385, 358 N.R. 197, J.E. 2007-477, 222 O.A.C. 324, 153 C.R.R. (2d) 173, 37 R.F.L. (6th) 1, 154 A.C.W.S. (3d) 362, EYB 2007-115536, folld Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 15(1) Crown Liability Act, R.S.C. 1970, c. C-38 Trustee Act, R.S.O. 1990, c. T.23, s. 38(1) War Measures Act, R.S.C. 1927, c. 206 Rules and regulations referred to Defence of Canada Regulations, 1940, P.C. 2483 Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 11.01 [as am.]

Joseph Colangelo, for appellant. Gail Sinclair and James Gorham, for respondent.

The judgment of the court was delivered by

[1] GILLESE J.A.: -- This appeal raises one issue: can an estate continue a claim based on the Canadian Charter of Rights and Freedoms?

Background

[2] The following facts are allegations in the statement of claim, dated July 27, 2005, in these proceedings.

[3] The appellant was born in Canada. He was a Canadian citizen of Italian origin. On June 13, 1940, Canada caused the appellant to be arrested and imprisoned under the Defence of Canada Regulations, 1940, P.C. 2483, made pursuant to the War Measures Act, R.S.C. 1927, c. 206. This conduct was motivated by the belief that the appellant, because of his Italian origin, was prone to acts of disloyalty and sabotage.

[4] The appellant was transferred to a concentration camp in Petawawa, Ontario, and forced to do hard labour for which he was to be paid $6 per month. However, Canada withheld $5 per month from his pay to compensate itself for the administration of his property. As the appellant had no property, this money was wrongfully withheld and the appellant sought to have it repaid with interest. In addition, he sought a variety of declarations, and compensation for his wrongful arrest and detention and for the wages he lost while he was detained.

[5] In a November 4, 1990 statement, Canada's then-Prime Minister admitted that the arrest and imprisonment of the appellant and other Canadians of Italian origin during World War II was wrongful, arbitrary and discriminatory. However, while Canada has compensated other ethnic communities and individuals who suffered harm in similar circumstances, it has neglected or refused to make compensation to the appellant and the members of the Italian-Canadian community. This refusal is alleged to be discriminatory and contrary to the freedoms and liberties of the Charter, in particular ss. 7 and 15.

[6] Canada claims the benefit of special immunity at common law and pursuant to the Crown Liability Act, R.S.C. 1970, c. C- 38, to defeat the appellant's action. The appellant argues that any such immunities or privileges are contrary to ss. 7 and 15 of the Charter.

[7] On August 12, 2005, Canada moved to strike the claim for want of a reasonable cause of action. By order dated September 29, 2005, [page671] Festeryga J. dismissed the motion. The respondent obtained leave to appeal that order. That appeal has yet to be heard.

[8] On March 4, 2006, the appellant died.

[9] On the appellant's death, the proceeding was automatically stayed pursuant to rule 11.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, pending an Order to Continue the action in the name of the estate of the deceased. The estate trustees obtained an Order to Continue.

[10] On March 1, 2007, the Supreme Court of Canada released its decision in Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429, [2007] S.C.J. No. 10. In Hislop, the Supreme Court held that an estate does not have standing to pursue relief under the Charter, subject to two very closely circumscribed exceptions.

[11] On April 5, 2007, Canada brought a motion to vary the Order to Continue so that the estate could pursue only those claims that fell under s. 38(1) of the Trustee Act, R.S.O. 1990, c. T.23 (the "Motion").

[12] By order dated August 15, 2007, Justice Harris granted the Motion and varied the Order to Continue so that "any claims for relief under s. 24(1) of the [Charter] based on violations of s. 7 or s. 15 of the Charter are not continued" (the "Order").

[13] The motion judge viewed Hislop as determinative of the Motion. Based on Hislop, he concluded that an estate may not pursue Charter claims under s. 15(1) on behalf of a deceased person. Further, although Hislop dealt with only s. 15(1) claims, the motion judge held that its reasoning applied to preclude the estate from pursuing the appellant's s. 7 claim.

[14] On appeal, the appellant seeks to have the Order set aside and the Motion dismissed.

Analysis

[15] I see no basis on which to interfere with the Order. Like the motion judge, I am of the view that Hislop is determinative.

[16] In Hislop, the Supreme Court ruled that an estate cannot continue a claim based on s. 15(1) of the Charter. At para. 73 of Hislop, the court explained that rights guaranteed by s. 15(1) of the Charter cannot be asserted by an estate because those rights are personal and, therefore, end with the death of the affected individual:

In the context in which the claim is made here, an estate is just a collection of assets and liabilities of a person who has died. It is not an individual and it has no dignity that may be infringed. The use of the term "individual" in s. 15(1) was intentional. For these reasons, we conclude that estates do not have standing to commence s. 15(1) Charter claims. In this sense, it may be said that s. 15 rights die with the person. [page672]

[17] The Supreme Court identified two exceptions to this principle. First, an appeal from a judgment raising s. 15(1) issues "must be allowed to survive the party's death pending the appeal": para. 76. Second, where an individual dies after the conclusion of argument but before judgment is entered, judgment shall be entered as the person's estate is not to be prejudiced by the time required for a court to render judgment: para. 77.

[18] Neither exception applies to the present case. Thus, although the appellant commenced his Charter claims during his lifetime, as those claims had neither been adjudicated nor argued at the time of his death, as a matter of law, they do not survive his death.

[19] I see nothing in the argument that Hislop applies only to class actions. The language used by the court, including that quoted above, makes it clear that it is not so confined.

[20] Although the Supreme Court only explicitly addressed claims based on s. 15(1), as counsel for the appellant conceded, its reasoning applies equally to the appellant's s. 7 claims.

[21] The appellant asks that this court recognize that the estate may use the Charter in a defensive manner -- as a "shield rather than a sword". I accept that the Order expressly directs that only claims for relief under the Charter are not continued. It follows that claims for relief based on something other than the Charter are permitted to continue. Indeed, Canada acknowledged that in response to questions from the panel. So, for example, claims under s. 38(1) of the Trustee Act can continue, provided those claims are not based on the Charter.

[22] Having said that, it is important to note that this question of a defensive use of the Charter is a matter of substance, not form. If, at its essence, a "defensive use" of the Charter is simply a recharacterization of a ss. 7 or 15 Charter claim, it is not continued. I make this observation for two reasons. First, I wish to ensure that there is no misunderstanding as to the scope of the Order. Second, to the extent that I understand the "defensive claims" at this point in the proceedings, they appear to amount to the assertion of a claim. It appears that the motion judge viewed the claims in a similar fashion. At para. 12 of the reasons, he remarks "[w] hile the plaintiff invokes the Charter for various forms of relief in the statement of claim, the bulk of the relief sought is purely economic loss occasioned by Charter violations, and any declarations sought are to achieve this ultimate end". [page673]

Disposition

[23] Accordingly, I would dismiss the appeal. Pursuant to the agreement of counsel, Canada as the successful party is to receive, as costs, the amount of its disbursements on the motion and appeal. I would fix those costs at $400, inclusive of GST.

Appeal dismissed.