In Canada v. Whaling, 2025 FCA 140, released on Aug. 1, Justice Donald Rennie overturned a Federal Court finding that an estate’s standing to pursue Charter damages for s. 11(h) claims could be determined by reference to provincial and territorial estates and survival legislation.
“The content and reach of the Charter do not expand or contract according to the will of provincial legislatures; otherwise, this would lead to the inconsistent application of Charter rights across the country, a consequence inimical to the Charter itself,” the judge wrote.
In 2011, the federal government abolished accelerated parole review through the Abolition of Early Parole Act. Accelerated parole review advanced the time frame in which offenders became eligible for day parole to one-sixth of their sentence rather than six months before one-third of their sentence.
The Act included a transitional provision that made it applicable to all offenders held in federal institutions, including those who had already been sentenced.
As a result, the respondent, Kristen Marie Whaling (formerly known as Christopher John Whaling), became ineligible for accelerated parole review.
The respondent sought and was granted a declaration that the abolition of earlier day parole for those who had already been sentenced infringed s. 11(h) of the Charter.
The decision was affirmed by both the B.C. Court of Appeal and the Supreme Court of Canada.
Following the Supreme Court decision, the respondent commenced a class proceeding in the Federal Court seeking damages on behalf of all federal inmates whose right to accelerated parole review was removed by the retrospective application of the Act.
The Federal Court certified the action as a class proceeding and ordered that the issue of whether the estate of a deceased class member could claim Charter damages for the violation of a s.11(h) right be determined prior to the trial.
In Whaling v. Canada, 2024 FC 712, the Federal Court concluded that the estate of a deceased class member could claim Charter damages for such a violation, noting that whether an estate could or could not continue a Charter claim could be based on the law of the province.
The Federal Court held that since the Charter did not expressly proscribe actions by estates, it could be that the question could be resolved by reference to provincial law.
Canada appealed the decision.
Justice Rennie noted that s. 24(1) of the Charter addresses who may seek a remedy and is determinative of standing.
Under s. 24(1), anyone whose Charter rights or freedoms have been infringed or denied may apply to the court for such remedy as the court considers appropriate and just.
“An estate is not ‘anyone’ for the purpose of section 24(1). An estate is a collection of assets and liabilities of a person who has died,” the judge wrote.
The judge added that since no estate could have experienced a s. 11(h) breach, no estate has standing to seek a s. 24(1) remedy for that breach.
“Section 24(1) provides inherent limits on standing, restricting claims for remedy under this section to only those persons whose rights were breached personally,” the judge wrote, noting that the Federal Court’s decision had established an alternate route to standing via provincial survival legislation.
Justice Rennie allowed the appeal and held that the estate of a deceased member of a class action could not claim damages for breach of a s. 11(h) Charter right.
Justices John Laskin and Nathalie Goyette concurred in the decision.
“We are currently reviewing the decision and considering whether to pursue an application for leave to appeal to the Supreme Court of Canada,” said counsel for the respondent, David Honeyman of Rice Harbut Elliott.
Anthony Leoni of Rice Harbut Elliott also acted as counsel for the respondent.
Counsel for Canada were Andrea Gatti, Ryan Grist, Andrew Eyer and Graham Hallson of the Department of Justice Canada.
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