Challenging public authorities in courts can be … challenging. Apart from institutional advantages and formidable defences enjoyed by public authorities, it can be hard to find the right procedure to get the claim before a court. The Federal Court of Appeal’s decision in Brake v Canada (Attorney General) gives parties struggling with that procedural issue a roadmap for challenging a public decision and also seeking damages in one class proceeding.

Underlying complaint and Federal Court proceedings

Gerald Brake started a judicial review application challenging a 2013 agreement between Canada and the Federation of Newfoundland Indians which amended an earlier 2008 agreement in a way that made it harder for applicants like Mr. Brake to obtain membership in a First Nations band. In his application, Mr. Brake sought a redetermination of his and all others’ applications under the 2008 agreement. He later asked the Federal Court for an order converting his application into an action and certifying that action as a class proceeding seeking both administrative law remedies and damages. The Federal Court dismissed that motion.

Mr. Brake appealed that dismissal. Justice Stratas, on behalf of a unanimous Federal Court of Appeal, allowed the appeal and certified Mr. Brake’s action as a class proceeding. In his decision, Justice Stratas extensively addressed the thorny issue of seeking administrative law remedies and damages in one proceeding.

Three ways to certify judicial reviews and actions as one class proceeding

Justice Stratas noted that the law relating to simultaneous judicial reviews (the mechanism for challenging public authorities’ decisions) and actions (the mechanism for seeking damages) is fraught with unnecessary procedural complexity. For arcane, historical reasons judicial reviews and actions are separate procedures in most Canadian courts. This forces a claimant seeking administrative law remedies and damages to start and prosecute two separate proceedings.

However, Justice Stratas added, the Federal Courts have tools to ameliorate the problems created by this separation. In particular, he identified three approaches that allow a plaintiff to seek both administrative law remedies and damages in one proceeding, including a class proceeding:

  • The Hintonapproach: A judicial review application seeking administrative law remedies and an action for damages for the administrative misconduct are started. These two proceedings are consolidated and, if desired, certification is sought.
  • The Paradis Honeyapproach: An action is started. The statement of claim starting the action seeks both administrative law remedies and damages, and the entitlement to damages is pleaded as a public law cause of action for unreasonable or invalid decision-making. (Readers of this blog will recall that the decision in Paradis Honey provided a novel framework for public authority liability, which we have commented on here and here.)
  • The Tihomirovs approach: A judicial review application seeking administrative law remedies is started. The claimant brings motions for permission to prosecute the judicial review as an action and to certify a class proceeding. A proposed statement of claim seeking administrative law remedies and damages is filed. The Court decides the two motions together.

Tweaking the Tihomirovs approach

Justice Stratas noted that the Tihomirovs approach did not sit comfortably with the Federal Courts Rules and therefore revised it by setting out four steps for future courts to follow. First, the court should consider the proposed statement of claim as if it were finalized and filed. Second, the court should assess whether the action and the application for judicial review, if they were consolidated, would meet the certification requirements. Third, if certification requirements are met, the court should require that within a short period of time the proposed statement of claim be filed as the statement of claim, the action be consolidated with the application, and the consolidated proceeding be prosecuted as if it were an action. Fourth, the certification order should set out the terms required in such orders by the Federal Courts Rules.

Guidance for future claimants

Despite setting out the revised Tihomirovs approach, Justice Stratas strongly suggested that future claimants should follow the Hinton or Paradis Honey approach as they were more straightforward and manageable, adding that the Paradis Honey approach is the simplest of all. Whichever approach they choose, future claimants seeking both administrative law remedies and damages in the Federal Courts will be wise to follow the clear road map provided in Brake v Canada.