Brazeau v. Attorney General (Canada)

Court File and Parties

COURT FILE NO.: CV-15-532625-00CP DATE: 2019/06/05 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CHRISTOPHER BRAZEAU and DAVID KIFT Plaintiffs

• and - THE ATTORNEY GENERAL OF CANADA Defendant

Counsel: James Sayce and Janeta Zurakowski for the Plaintiffs Greg Tzemenakis, Stephen Kurelek, Sean Stynes, and Diya Bouchedid for the Defendant

Proceeding under the Class Proceedings Act, 1992

HEARD: In writing

PERELL, J.

Reasons for Decision

[1] The Representative Plaintiffs, Christopher Brazeau and David Kift, seek an award of $9,680,000 in prejudgment interest on a $20 million award of Charter damages. They seek the prejudgment interest to be calculated at the rate of 5% per annum from the date that the non-statute-barred causes of action for contravention of the Charter arose to the date of judgment. Messrs. Brazeau and Kift also seek an order that the rate for postjudgment interest be set at between 3% or 8% or higher.

[2] The Federal Government submits that the Court should exercise its discretion not to award prejudgment interest because prejudgment interest is compensatory, and no compensatory damages have yet been awarded with the issue of compensatory damages having been left to the individual issues phase of the proceeding.

[3] In the alternative, the Federal Government submits that if the court decides to award prejudgment interest, it should be awarded: (a) at the average rate of prejudgment interest for Ontario, B.C., and Alberta (the average rate is 1.285% per annum); and (b) from the date the claim was issued (July 2015) and not July 2009, which is the beginning of the Class Period.

[4] Further, and for similar reasons, the Federal Government submits that the court should not order postjudgment interest, or in the alternative, if there is an award, then the postjudgment rate should be the average rate of interest for Ontario, BC. and Alberta, being 3.05% per annum.

[5] For the reasons that follow, I make no award for prejudgment or postjudgment interest.

[6] Through the Correctional Service of Canada, the Federal Government operates penitentiaries and related penal institutions across Canada. Pursuant to the Class Proceedings Act, 1992 [1], Messrs. Brazeau and Kift sued the Federal Government about the operation of those penitentiaries. On behalf of a class of inmates who are seriously mentally ill, Messrs. Brazeau and Kift alleged that by placing mentally ill inmates in “administrative segregation”, the Federal Government has breached the Class Members’ rights under the Canadian Charter of Rights and Freedoms [2].

[7] In 2016, on consent, the action was certified as a class proceeding [3]. On consent, the following common issues were certified:

1. By its operation and management of the Federal Institutions from November 1, 1992 to the present, did the Defendant breach the Class Members' rights under section 7 of the Charter?
2. If so, were its actions saved by section 1 of the Charter?
3. By its operation and management of the Federal Institutions from November 1, 1992 to the present, did the Defendant breach the Class Members' rights under section 9 of the Charter?
4. If so, were its actions saved by section 1 of the Charter?
5. By its operation and management of the Federal correctional facilities from November 1, 1992 to the present, did the Defendant breach the Class Members' rights under section 12 of the Charter?
6. If so, were its actions saved by section 1 of the Charter?
7. If the answer to any of common issues (1), (3), or (5) is "yes", and the answer to any of (2), (4) and (6) is no, are damages available to the Class under section 24 of the Charter?
8. If the answer to common issue (7) is "yes", can the Court make an aggregate assessment of the damages suffered by all Class Members as a part of the common issues trial [summary judgment motion]?

[8] Messrs. Brazeau and Kift brought a summary judgment motion for answers to all of the common issues. With the discontinuance of the claims involving health care but not involving administrative segregation, the summary judgment motion was designed to be dispositive of the action save for the individual issues trials.

[9] I granted the summary judgment motion - in part - and I dismissed it - in part [4]. The answers to the common issues were as follows:

a. By its operation and management of the Federal Institutions from November 1, 1992 to the present, the Federal Government breached the Class Members’ rights under section 7 of the Charter by the absence of an adequate review process for placements in administrative segregation. In other words, there is a class-wide breach of section 7 (misdescribed by Messrs. Brazeau and Kift as a breach of s. 9) of the Charter because the review process for administrative segregation contravened the Charter.

Without prejudice to any individual Class Member’s claim at an individual issues trial to assert that his or her treatment was contrary to section 7 of the Charter in his or her particular circumstances, by its operation and management of the Federal Institutions from November 1, 1992 to the present, the Federal Government breached the rights under section 7 of the Charter of those Class Members: (a) who were involuntarily placed in administrative segregation for more than thirty days; and (b) who were voluntarily placed in administrative segregation for more than sixty days.

i. In other words, while individual Class Members may have suffered a violation of section 7 of the Charter by his or her placement in administrative segregation for less than thirty days, there was only a common or systemic breach suffered by two subclasses comprised of Class Members: (a) who were involuntarily placed in administrative segregation for more than thirty days; or, (b) who were voluntarily placed in administrative segregation for more than sixty days.

ii. As the discussion below will explain, involuntary placements include both placements made at the request of the inmate (genuine voluntary placements) and also placements in which the inmate contrives or engineers an involuntary placement into administrative segregation.

b. For the subclasses (which may also be represented by Messrs. Brazeau and Kift as representative plaintiffs), the breach of section 7 of the Charter is not saved by section 1 of the Charter.

c. By its operation and management of the Federal Institutions from November 1, 1992 to the present, the Federal Government did not breach the Class Members’ rights under section 9 of the Charter.

d. There being no breach, the question of whether the breach of section 9 of the Charter is saved by section 1 of the Charter need not be answered.

e. Without prejudice to any individual Class Member’s claim at an individual issues trial to assert that his or her treatment was cruel and unusual, by its operation and management of the Federal Institutions from November 1, 1992 to the present, the Federal Government breached the rights under section 12 of the Charter of those Class Members (a) who were involuntarily placed in administrative segregation for more than thirty days; and (b) who were voluntarily placed in administrative segregation for more than sixty days.

i. In other words, while individual Class Members may have suffered a cruel and unusual treatment by his or her placement in administrative segregation for less than thirty days, there was only a common or systemic breach suffered by the two subclasses comprised of Class Members: (a) who were involuntarily placed in administrative segregation for more than thirty days; or, (b) who were voluntarily placed in administrative segregation for more than sixty days.

f. For the subclasses, the breach of section 12 of the Charter breach is not saved by section 1 of the Charter.

g. Notwithstanding the principles from Mackin v. New Brunswick (Minister of Finance) [5], vindication and deterrence damages are available to the whole class under section 24 (1) of the Charter for the breach of section 7 of the Charter regarding the inadequate review procedure for placements in administrative segregation (misdescribed by Messrs. Brazeau and Kift as a breach of s. 9). In any event, vindication and deterrence damages are available to the subclasses that suffered a breach of sections 7 and 12 of the Charter.

h. The court can make an aggregate assessment of the Charter damages suffered by the whole class for the breach of section 7 of the Charter and of the Charter damages of the subclasses that suffered a breach of sections 7 and 12 of the Charter. The court assesses those damages as $20 million, which is to be distributed, less Class Counsel’s approved legal fees and disbursements, in the form of additional mental health or program resources for structural changes to penal institutions as the court on further motion may direct.

i. The Federal Government is not liable for punitive damages on a class-wide basis but may be liable for punitive damages after the Charter damages are determined at the individual issues trials.

ii. How the $20 million, less Class Counsel’s approved fees and disbursements, shall be distributed for the benefit of the class and the subclasses shall be determined by a distribution motion brought by Class Counsel.

[10] In addition to answering the common issues, as set out above, I concluded that subject to individual Class Members rebutting the statute-bar, there is a six-year limitation period that applies to all claims, and, thus, the start date for the Class Period is July 20, 2009 for all but the Estate claimants, for which the start date is July 20, 2013. This means that without prejudice to the claims of Class Members that have an individual rebuttal to the tolling of the limitation period, Class Members’ claims as a class from a placement in administrative segregation before July 20, 2009 are statute-barred.

[11] For the present purposes of determining whether the Federal Government should pay prejudgment and postjudgment interest, the pertinent matters to note are that: (1) there shall be individual issues trials to determine the individual Class Members’ pecuniary and non-pecuniary compensatory claims arising from their personal injuries associated with the Federal Government’s contraventions of the Charter; and (2) the Class was awarded $20 million in vindication and deterrence damages that was independent from the individual Class Members’ compensatory claims arising from their personal injuries.

[12] With respect to the vindication and deterrence damages, in my Reasons for Decision, I stated at paragraphs 421 to 434 as follows:

421. Applying the principles from Vancouver (City) v. Ward, Doucet-Boudreau v. Nova Scotia (Minister of Education) and Mackin v. New Brunswick (Minister of Finance) to the facts of the immediate case and beginning with the four-step approach of Vancouver (City) v. Ward, first, Messrs. Brazeau and Kift have established that the Class Members’ rights under section 7 of the Charter have been breached and for two subclasses, the Class Members’ rights under section 7 and section 12 of the Charter have been breached.

422. Second, Messrs. Brazeau and Kift have established that it would be appropriate and just for the Class Members who have had their Charter rights contravened to receive Charter damages. On a class-wide basis these Charter damages serve the functions of deterrence and especially of vindication. (It will also be appropriate and just for individual Class Members to receive compensatory Charter damages, but the entitlement and the quantum of the compensatory Charter damages is a matter for individual issues trials.)

423. Much like the situation in Doucet-Boudreau v. Nova Scotia (Minister of Education), where the court ordered the province to do what it ought to have done in providing French language education, it is all of necessary, just, and appropriate to order the Federal Government to pay $20 million, which is to be distributed, less Class Counsel’s approved legal fees and disbursements, in the form of additional mental health or program resources for structural changes to penal institutions as the court on further motion may direct.

424. For decades, academic research, commissions, inquiries, inquests, court cases, domestic and international organizations, and the Correctional Investigator have recommended that the Correctional Service change its policies and practices with respect to the treatment of seriously-ill inmates placed in administrative segregation. The vindication of the Class Members’ Charter rights requires that the Federal Government be directed to do what it ought to have done for decades.

425. None of these Charter damages are for compensatory purposes, which is a function that will be left to the individual issues trials. The funds are to remedy to the harm caused to society which has suffered from the Correctional Service’s failure to comply with the Charter and also its failure to comply with the spirit of the Corrections and Conditional Release Act and its purpose of rehabilitating mentally ill inmates to return to society rather than worsening their capacity to do so by the harm caused by prolonged solitary confinement.

426. The court supervision of this investment of government funds respects the different roles of the different branches of government, and the directed order of Charter damages responds to the Federal Government’s own submission, set out in its factum and noted above, that it should be given the opportunity to craft a legislative and/or policy response possibly in the form of additional mental health or program resources, or structural changes to penal institutions. The supervision also fulfills the deterrence function because it will ensure future compliance with the Charter.

427. In my opinion, an award of Charter damages to be applied for the benefit of the collective that are mentally ill inmates is consistent with the evolution of Charter damages that Justices Iacobucci and Arbour noted may require novel and creative features when compared to traditional and historical remedial practices because tradition and history cannot be barriers to what reasoned and compelling notions of appropriate and just remedies demand.

428. Third and fourth, the government has not established any countervailing factors such as alternative remedies or good governance concerns, and there is no chance of double compensation given that the class-wide Charter damages are not being awarded for compensation. The quantum, as will be explained further in the next section of these Reasons for Decision, is determined based on the vindication and deterrence factors and is within the parameters of class action theories of aggregate damages.

429. I agree with Messrs. Brazeau and Kift that the restrictive principle from Macklin v. New Brunswick do not apply with respect to the Charter damages claims of the two subclasses for the breaches of sections 7 and 12 of the Charter.

430. I also agree that the in the circumstances of the immediate case the Macklin principle does not bar the class-wide claim with respect to the deficiencies of the review process for administrative segregation placements. In my opinion, the declaratory relief already provided by the courts in Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen and British Columbia Civil Liberties Association v. Canada (Attorney General) is inadequate to respond to the vindication and deterrence functions of a Charter remedy.

431. The Federal Government has not established that an award of Charter damages would interfere with good governance as was the situation in Macklin but is not the situation in the case at bar.

432. Further, I am satisfied that there has been a threshold of misconduct with respect to the review process for placements in administrative segregation that goes beyond its legislated imperfections. In other words, although perhaps not on a class-wide basis, even if the review of administrative segregation provisions of the Corrections and Conditional Release Act had not been struck down under s. 52 (1) of the Constitution Act, 1982, in individual cases there were breaches of section of 7 of the Charter. In the immediate case, the accounts of the mentally-ill inmates reveal that apart from the want of an independent and impartial reviewer, the reviews were often superficial or based on incomplete or inaccurate information about the mental health of the inmate and about the circumstances that led to his or her administrative segregation.

433. In short, the application of the Macklin principle is inappropriate. In the immediate case, an immunity does not create a balance between the protection of constitutional rights and the need for effective government. In the circumstances of the case at bar, an immunity from Charter damages does just the opposite, it balances the violation of constitutional rights with bad and ineffective governance.

434. For the above reasons, I conclude that the class and the two subclasses are entitled to Charter damages.

[13] It is clear from this passage from my Reasons for Decision that the $20 million award for vindication and deterrence was not meant as a compensatory award to the Class Members for their personal injury claims. I confess that in making the non-compensatory award, I did not consider nor analyze whether the $20 million award would or should attract prejudgment and postjudgment interest. After Messrs. Brazeau and Kift made the request for these interest awards, I asked the parties to provide written submissions so that I could resolve the matter.

[14] My analysis leads me to the conclusion that while the court has the jurisdiction to award prejudgment interest and postjudgment interest for Charter damages, generally speaking, the interest award should be for the compensatory part of the award and not for the part of the award designated for deterrence and vindication and that in the circumstances of the immediate case, therefore, I should not make an award for prejudgment or postjudgment interest.

[15] I shall begin the analysis by considering the nature of prejudgment and postjudgment interest generally.

[16] Under the common law and under equity, prejudgment interest is available in some circumstances. Under the common law, in breach of contract cases, the court has the discretion to grant a fair prejudgment interest rate [6]. Historically, this jurisdiction was exercised to award simple interest only, but in Bank of America Canada v. Mutual Trust Co. [7], the Supreme Court of Canada held that there is jurisdiction under the common law to award compound interest for prejudgment and postjudgment interest as a head of damage for breach of contract. In equity, where a court of equity has jurisdiction over a defendant, for example, in breach of trust cases or cases where there has been a wrongful withholding of a payment of money, the court has the jurisdiction to award prejudgment and postjudgment interest, including interest at a compound interest rate [8].

[17] The notion of Charter damages is a manifestation of the court’s constitutional jurisdiction, and making any award of damages can be said to be an aspect of the court’s common law or equitable jurisdiction. There is, however, no caselaw that has addressed whether a Charter damages award - purely for deterrence and vindication - can and should bear prejudgment and postjudgment interest. The case at bar is a case of first instance. Thus, I disagree with Messrs. Brazeau’s and Kift’s submission that an award of prejudgment interest on Charter damages for deterrence and vindication is supported by case law.

[18] Apart from case law, Messrs. Brazeau and Kift submit that there are two other sources that support awards of prejudgment and postjudgment interest for Charter damages for deterrence and vindication; namely: (1) the Crown Liability and Proceedings Act [9]; and (2) the Courts of Justice Act [10] and the Rules of Civil Procedure [11]. However, as I shall next explain, in the circumstances of the immediate case, the Courts of Justice Act and the Rules of Civil Procedure do not apply and the Federal Government’s liability for prejudgment and postjudgment interest arises only from the Crown Liability and Proceedings Act.

[19] Sections 31 and 31.1 of the Crown Liability and Proceedings Act state:

Interest

Prejudgment interest, cause of action within province

31 (1) Except as otherwise provided in any other Act of Parliament and subject to subsection (2), the laws relating to prejudgment interest in proceedings between subject and subject that are in force in a province apply to any proceedings against the Crown in any court in respect of any cause of action arising in that province.

Prejudgment interest, cause of action outside province

(2) A person who is entitled to an order for the payment of money in respect of a cause of action against the Crown arising outside any province or in respect of causes of action against the Crown arising in more than one province is entitled to claim and have included in the order an award of interest thereon at such rate as the court considers reasonable in the circumstances, calculated

(a) where the order is made on a liquidated claim, from the date or dates the cause of action or causes of action arose to the date of the order; or

(b) where the order is made on an unliquidated claim, from the date the person entitled gave notice in writing of the claim to the Crown to the date of the order.

Special damages and pre-trial pecuniary losses

(3) When an order referred to in subsection (2) includes an amount for, in the Province of Quebec, pre-trial pecuniary loss or, in any other province, special damages, the interest shall be calculated under that subsection on the balance of the amount as totalled at the end of each six month period following the notice in writing referred to in paragraph (2)(b) and at the date of the order.

Exceptions

(4) Interest shall not be awarded under subsection (2)

(a) on exemplary or punitive damages;

(b) on interest accruing under this section;

(c) on an award of costs in the proceeding;

(d) on that part of the order that represents pecuniary loss arising after the date of the order and that is identified by a finding of the court;

(e) where the order is made on consent, except by consent of the Crown; or

(f) where interest is payable by a right other than under this section.

Judicial discretion

(5) A court may, where it considers it just to do so, having regard to changes in market interest rates, the conduct of the proceedings or any other relevant consideration, disallow interest or allow interest for a period other than that provided for in subsection (2) in respect of the whole or any part of the amount on which interest is payable under this section.

Application

(6) This section applies in respect of the payment of money under judgment delivered on or after the day on which this section comes into force, but no interest shall be awarded for a period before that day.

Canadian maritime law

(7) This section does not apply in respect of any case in which a claim for relief is made or a remedy is sought under or by virtue of Canadian maritime law within the meaning of the Federal Courts Act.

Judgment interest, causes of action within province

31.1 (1) Except as otherwise provided in any other Act of Parliament and subject to subsection (2), the laws relating to interest on judgments in causes of action between subject and subject that are in force in a province apply to judgments against the Crown in respect of any cause of action arising in that province.

Judgment interest, causes of action outside or in more than one province

(2) A judgment against the Crown in respect of a cause of action outside any province or in respect of causes of action arising in more than one province shall bear interest at such rate as the Court considers reasonable in the circumstances, calculated from the time of the giving of the judgment.

[20] In the case at bar, Messrs. Brazeau and Kift and the Class Members are entitled to a payment of the unliquidated sum of $20 million. The entitlement to the $20 million payment of money is in respect of a cause of action against the Federal Government in respect of causes of action arising in more than one province. Thus, the applicable section of the Crown Liability and Proceedings Act is s. 31 (2).

[21] The $20 million award of Charter damages is unliquidated because a claim is liquidated whenever the amount payable is fixed by the agreement between the parties or can be ascertained by calculation from a fixed scale of charges or other positive data, but the claim is unliquidated if extraneous evidence or an estimation of what is reasonable is required to fix the amount owing [12].

[22] In the immediate case, the effect of s. 31 (2) of the Act is to oust the operation of the Courts of Justice Act and the Rules of Civil Procedure. As appears from s. 31 (2) of the Crown Liability and Proceedings Act, a person who is entitled to an order for the payment of money from the Federal Government in respect of a cause of action arising in more than one province is entitled to have included in the order an award of interest thereon at such rate as the court considers reasonable in the circumstances.

[23] Thus, Messrs. Brazeau’s and Kift’s and the Class Members’ claim for interest is only supported by s. 31 (2) of the Crown Liability and Proceedings Act.

[24] There is, however, a reasonably strong argument that interest pursuant to s. 31 (2) of the Act is not available to Messrs. Brazeau and Kift because s. 31 (4) of the Act precludes interest on certain awards. In particular, s. 31 (4) stipulates that interest shall not be awarded under s. 31 (2) on exemplary or punitive damages, and it is a reasonably strong argument that Charter damages purely for deterrence and vindication are functionally similar to punitive damages and thus prejudgment and post judgment interest are not available to the Class Members in the immediate case.

[25] I agree with this argument, but if I am wrong and prejudgment and postjudgment interest are available in the immediate case pursuant to s. 31 (2) of the Crown Liability and Proceedings Act, then the Act provides that Messrs. Brazeau and Kift and the Class Members would be entitled to have included in the order an award of interest thereon at such rate as the court considers reasonable in the circumstances. In exercising my discretion as to what was reasonable in the circumstances, I would exercise my discretion pursuant to s. 31 (5) of the Act to disallow interest for the $20 million award for deterrence and vindication damages.

[26] Under s. 31 (5) a court may disallow interest where it considers it just to do so having regard to the conduct of the proceedings or any other relevant consideration. In the circumstances of the immediate case, I do not regard prejudgment interest and postjudgment interest as appropriate for the $20 million award for deterrence and vindication.

[27] I will not repeat all of what I said in my original Reasons for Decision, but I did not intend the award of $20 million to be akin to a compensatory award for general or non-pecuniary damages for a personal injury for which it might be said that the recipient was damaged by the delay in being paid money to which he or she was entitled and, or the defendant was being unjustly enriched by using what was in effect somebody else’s money.

[28] In the immediate case, the award of Charter damages was intended to remedy a harm caused to society, which has suffered from the Federal Government’s failure to comply with the Charter but there is no additional head of damages for the time it took to determine that there was an entitlement and there is no functional need to add interest to the deterrence and vindication effected by the $20 million award. The award of $20 million for vindication and deterrence is not compensatory and it was made for the benefit of the Class (collectively, other inmates and society); no Class Member has been denied money to which he or she is entitled.

[29] In Hislop v. Canada (Attorney General) [13], the Ontario Court of Appeal discussed the nature of prejudgment interest under the Crown Liability and Proceedings Act. In this case, provisions of the Canada Pension Plan that had denied survivor benefits to same-sex partners were struck down as contrary to the Charter and the pension benefits were awarded retroactively along with prejudgment interest. In an aspect of her judgment that was affirmed by the Court of Appeal and by the Supreme Court of Canada, the trial judge, Justice E.M. Macdonald, awarded prejudgment interest. For present purposes, it is important to note that the award of prejudgment interest in the Hislop case was not made under the Charter but rather was made under s. 31 of the Crown Liability and Proceedings Act. At paragraphs 145 – 150 of its judgment, the Court of Appeal discussed the award of prejudgment interest and stated:

145. As the trial judge recognized, an award of pre-judgment interest is a natural extension of the underlying damages award. Such an award recognizes that the successful litigant has not had the use of the money to which it was entitled. Pre-judgment interest puts that litigant in the position it would have been in had it received the moneys when it was entitled to do so. It neither benefits a successful party unfairly by providing that party with a windfall, nor punishes an unsuccessful party. It merely deprives the unsuccessful party of the financial benefit it received from holding funds to which it was, in the result, never entitled. Accordingly, pre-judgment interest is compensatory, not punitive. See Graham v. Rourke (1990), 75 O.R. (2d) 622, 74 D.L.R. (4th) 1 (C.A.); Irvington Holdings Ltd. v. Black (1987), 58 O.R. (2d) 449, 35 D.L.R. (4th) 641 (C.A.); Somers v. Fournier (2002), 60 O.R. (3d) 225, 214 D.L.R. (4th) 611 (C.A.); Giguère v. Chambre des notaires du Québec, 2004 SCC 1, [2004] 1 S.C.R. 3, 235 D.L.R. (4th) 422.

[146] At the same time, Parliament recognized there might be circumstances in which the legislature had reason to preclude the granting of pre-judgment interest. Accordingly, it reserved to the legislature the right to prohibit an interest award in specific legislation. The CPP is not such legislation. While the CPP addresses other types of interest, it is silent on the issue of pre-judgment interest. The CPP does contain a general prohibition against the use of CPP revenues for extraneous purposes, but that prohibition does not preclude an award of pre-judgment interest. This is because such an award would not be payable from CPP funds but rather from the funds of the appellant, the Attorney General of Canada.

[147] Accordingly, apart from an exercise of the trial judge's discretion not to award interest for reasons related to the litigation, nothing precludes the successful class members from their presumptive entitlement to pre-judgment interest in accordance with the laws of the applicable province.

[148] With respect to the discretion of the trial judge to grant pre-judgment interest, her award will only be overturned if the Crown demonstrates error or injustice in the exercise of that discretion. The Crown has not done so. The trial judge did not, as was suggested by the Crown, confuse this award with either the indexing of pensions available under the CPP or with symbolic damages. Further, the mere fact that this is Charter litigation, or that it raises a novel issue, is not a reason that justifies depriving the respondents of an award of interest to which they are otherwise entitled: Mason v. Peters (1982), 39 O.R. (2d) 27, 139 D.L.R. (3d) 104 (C.A.), leave to appeal to S.C.C. refused (1982), 46 N.R. 538 n.

[149] Section 31(6) of the Crown Liability and Proceedings Act, however, disallows any award of interest against the Crown before February 1, 1992, the day the section came into force. It was for this reason that the trial judge held that she could award interest on any arrears from no earlier than February 1, 1992.

[150] The trial judge properly exercised her discretion on appropriate principles. She was entitled to award the class members pre-judgment interest and there is no basis to interfere with that disposition.

[30] It should be noted in this passage that the Court of Appeal noted that Justice Macdonald had not conflated prejudgment interest with of any award of symbolic damages, i.e., for deterrence or vindication associated with the Charter breach, but rather she correctly awarded prejudgment interest for its historic purpose of depriving the unsuccessful party of the financial benefit from holding funds to which it was, in the result, never entitled. In other words, the Court of Appeal appreciated that Charter damages purely for the symbolic purposes of deterrence and vindication is different from a compensatory award for which it would be entirely appropriate to award prejudgment interest.

[31] The same logic applies to the case at bar. The court has the discretion to award prejudgment interest under the Crown Liability and Proceedings Act at the individual issues trials for compensatory damages, but the Class Members are not entitled to prejudgment and postjudgment interest on the $20 million award of Charter damages for deterrence and vindication.

[32] Order accordingly.

Perell, J.

Released: June 5, 2019

COURT FILE NO.: CV-15-532625-00CP DATE: 2019/06/05 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: CHRISTOPHER BRAZEAU and DAVID KIFT Plaintiffs - and - THE ATTORNEY GENERAL OF CANADA Defendant REASONS FOR DECISION PERELL J. Released: June 5, 2019

[1] S.O. 1992, c. 6. [2] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [3] Brazeau v. Attorney General (Canada), 2016 ONSC 7836. [4] Brazeau v. Attorney General (Canada), 2019 ONSC 1888. [5] 2002 SCC 13. [6] Toronto Railway Co. v. Toronto (City), [1906] A.C. 117 (P.C.); Prince Albert Pulp Co. v. Foundation Co. of Canada Ltd., [1977] 1 S.C.R. 200; Pizzey Estate v. Crestwood Lake Ltd. (2004), 69 O.R. (3d) 306 (C.A.), leave to appeal refused [2004] S.C.C.A. No. 459. [7] 2002 SCC 43, [2002] 2 S.C.R. 601. [8] Brock v. Cole (1983), 40 O.R. (2d) 97 (C.A.); Claiborne Industries Ltd. v. National Bank of Canada, (1989), 69 O.R. (2d) 65 (C.A.); Wallersteiner v. Moir (No. 2), [1975] Q.B. 373 (Que. C.A.). [9] R.S.C. 1985, c. C-50. [10] R.S.O. 1990, c. C.43. [11] R.R.O. 1990, Reg. 194. [12] Citibank Canada v. Confederation Life Insurance Co. (Liquidator of), [1996] O.J. No. 3409 (Gen. Div.), aff’d (1998), 37 O.R. (3d) 226 (C.A.); Holden Day Wilson v. Ashton (1993), 14 O.R. (3d) 306 (Div. Ct.); Cantalia Sod Co. v. Patrick Harrison & Co., [1968] 1 O.R. 169 (H.C.J.); Montana v. Corcoran, [1938] O.W.N. 188 (H.C.J.). T. Cooke (Concrete Blocks) Ltd. v. Campbell, [1947] O.W.N. 713 (H.C.J.). [13] (2004), 73 O.R. (3d) 641 (C.A.), varying, [2003] O.J. No. 5212 (S.C.J); aff’d 2007 SCC 10.