The Lawyers Weekly - September 3, 2010

STUART
ZACHARIAS
&JASMINE
AKBARALI

The Ontario Court of Appeal once suggested that claims for damages under the Charter should not be subject to any statutory limitation period. However, the court recently clarified that such claims must be commenced within the limitation period, or not at all. This does not restrict access to constitutional remedies. Rather, it requires Charter claimants to pursue their claims in a timely way— just like other litigants.

In Prete v. Ontario, [1993] O. J.
No. 2794, the Ontario Court of
Appeal considered the six-month
limitation period under Ontario’s
former Public Authorities Protec-
tion Act. The court stated,
regarding the purposes of limita-
tion periods, “Those purposes are
best served, when Charter rem-
edies are sought, by the court
refusing relief on the basis of
laches, in appropriate cases. The
purpose of the Charter, in so far as
it controls excesses by govern-
ments, is not at all served by per-
mitting those same governments
to decide when they would like to
be free of those controls and put
their houses in order without fur-
ther threat of complaint.”
This broad statement by the
Court of Appeal was widely
understood to apply not only to
the six-month limitation period
at issue in Prete, but also to the
general six-year period under
Ontario’s Limitations Act, which
was in force at the time.

Although no limitation period was in issue in that case, the court unanimously held that “s. 24(1) operates concurrently with, and does not replace, the general law.” Consistent with Alexis, while courts have a broad discretion in making an award under s. 24(1), this is subject to the relief being sought within the time frames prescribed by provincial legislatures.

Litigants must therefore be
diligent in pursuing their claims,
but the limitation period should
not create a “chilling effect,” espe-
cially in view of Ward, which
underscores the court’s broad dis-
cretion to award remedies under
the Charter. As the motion judge
held in Alexis regarding the plain-
tiff’s contention that any cost con-
sequences would deter other indi-
viduals from advancing claims
against public authorities, “If there
is a deterrent consequence to the
order it will apply to only those
who do not advance their claims in
a timely fashion. It is important
that parties seeking to advance
Charter claims exercise reasonable
diligence in pursuing those claims.”
This gives effect to the guidance
contained in one of the SCC’s early
decisions under the Charter. In R.
v. Mills, [1986] S.C. J. No. 39, Jus-
tice William McIntyre wrote that
the Charter “was not intended to
turn the Canadian legal system
upside down,” but, rather, is to be
“fitted into the existing scheme of
Canadian legal procedure.” 

Stuart Zacharias is a lawyer at
Lerners LLP in Toronto with a
civil defence practice. Jasmine
Akbarali is co-chair of Lerners’
Appellate Advocacy Group. Ler-
ners successfully represented the
intervenor/respondent in Alexis.

Courts may recognize case-by-case privilege

Privilege
Continued From Page 9

mechanism for licensing or regulating its members. As well, there was no general requirement or practice that journalists promise confidentiality to their sources. In contrast, the professional structure of the chartered accountancy profession in Canada is virtually indistinguishable from that of the legal profession. The requirement of confidentiality on client affairs is written into its codes of conduct.

The court in National Post
went on to hold that although
there was no general journalistic
privilege, privilege might arise for
particular communications if the
four general criteria, known as
the “Wigmore criteria,” were met
on the facts. The essence of these
criteria is that the communica-
tion must have been made in
confidence, confidentiality must
be essential to the relationship,
the relationship must be one that
is to be “sedulously fostered” and
the public interest in protecting
the confidentiality of the com-
munication must outweigh the
need for disclosure.