The Process of Mounting a Charter of Rights and Freedoms Challenge
This was originally written by Wayne G. Stickland and available at a University of Toronto Web site. Sadly it was deleted – no doubt this is also due to the termination of the Court Challenges Program by the Harper government -.Since this is important information that enables citizens to defend their rights in court, it is too important to be deleted. I will re-post the entire article here.
The Process of Mounting a Charter of Rights and Freedoms Challenge
by: Wayne G. Stickland
This paper will explore the process and the procedure in bringing a Charter of Rights and Freedoms1 challenge in a civil proceeding in the province of Ontario. It is not meant to be a theoretical examination; rather, it is directed at those seeking a practical view of the procedural steps to be followed in bringing a Charter challenge.
There are two types of Charter challenges. Collateral challenges, where applicable, occur during the normal course of litigation. For example, in a criminal defence an applicant may seek protection from state action or inaction, which may have affected either the investigative process or the arrest and detention of the accused. In this example, the accused has already been charged; therefore, the Charter challenge arises in the course of criminal prosecution. As well, in a civil litigation case, the defendant may challenge the validity of a law or legislation upon which the plaintiff’s action, or application, is based. In either case, the applicant is seeking to challenge the validity of a law.
Direct challenges arise when an individual, or public interest group, files an originating process for the express purpose of challenging the constitutionality of a law. In most cases, the general argument by the applicant is that legislation has affected a party either by inclusion or omission. An example would be an applicant who argues that the exclusion of same sex couples from receiving family benefits violates section 15 of the Charter. Usually, the applicant is seeking to have the legislation declared invalid.
It should be noted that the Rules of Civil Procedure2 might differ for each province. Therefore, readers in other provinces would be wise to consult the applicable rules in their province.
THE COLLATERAL CHALLENGE
Collateral challenges are the most frequent type of challenge. Because a collateral challenge arises in the course of litigation, the identity of the parties, the originating process, and the appropriate court have already been pre-determined by the nature of the action3.
However, if a party seeks to raise a constitutional issue, the declarant party must provide to the Attorney General of Canada and the Attorney General of Ontario a notice of constitutional question. Notice is required by Rule 109 of the Courts of Justice Act. 4
Rule 109 provides the Attorneys General with an opportunity to respond to any attacks on federal or provincial legislation. Further to rule 109(1), rule 109(4) provides that the Attorneys General are entitled to adduce evidence and make submissions to the court with respect to the constitutional question. Therefore, even if the Attorney General of Canada or Ontario is not named as a party, the respective governments, vis-à-vis the Attorney General, have the option of defending the respective legislation if a constitutional challenge should arise. In Ontario, notice has to be in the prescribed form 4F5 of the Rules of Civil Procedure.6
One may inquire as to when the notice must be served. Rule 109(2.2) of the Courts of Justice Act indicates that notice must be provided to all parties in the proceeding as soon as the circumstances requiring it become known. In any event, notice must be given at least fifteen days prior to the day in which the question is to be argued, unless the court orders otherwise7. It has been suggested that providing the proper notice is the fundamental element required in a collateral challenge. However, once proper notice has been given, when will the constitutional question be heard?
Normally, the trial judge in the main action will hear the constitutional question. However, parties are becoming increasingly concerned about the costs associated with litigation. In some cases, it may be more economical, or indeed procedurally correct, to determine a constitutional issue prior to the trial at a preliminary motion. The Ontario rules of civil procedure allow for the determination of an issue prior to the commencement of a trial.
Rule 20 permits the plaintiff or defendant to move for summary judgment. As well, it authorizes the court, where it is satisfied that the only genuine issue is a question of law, to determine the question and grant judgment accordingly.8 Therefore, requiring the constitutional issue to be determined prior to the trial will decrease the total time required to argue a proceeding. Although many issues are determined during the course of a trial, the nature of constitutional arguments is such that these arguments can easily become very long and protracted. It is not inconceivable, depending the constitutional issue, to devote two full days of court time to arguing a constitutional issue. For that reason, rule 20 is of particular importance. A prolonged trial transfers additional costs to both parties in the proceeding.
The effect of a successful motion for summary judgment is that the issue being argued can be decided prior to proceeding to trial. If the only issue to be decided is the constitutional issue, then a summary judgement, in effect, eliminates the need for a trial.
Rule 21 permits an applicant to narrow the issues at a motion hearing prior to proceeding to trial.9 Thus, this rule also assists a party in saving litigation costs by limiting the issues that must be determined at trial. Therefore, rule 21 is also beneficial to applicants who are fiscally constrained.
Finally, rule 22 permits parties to a proceeding to state a question of law in the form of a special case for the opinion of the court.10 Rule 22 allows a party to make an application to a judge to determine whether a constitutional issue really exists. There may be some disagreement between parties as to the extent of the issues, or even whether a constitutional issue exists; thus, rule 22 facilitates the narrowing of issues once again, thereby expediting the trial process.
It is possible that a constitutional issue would not be resolved prior to the commencement of the trial. It is also possible that the judge may find that a constitutional issue should be argued within the structure of the trial process and not at a hearing. In either case, the issue would simply be argued within the framework of the trial.
COLLATERAL CHALLENGES IN ADMINSTRATIVE TRIBUNALS
The legal system today is comprised of more than simply “courts” proper. Some issues, for example labour issues, are argued before administrative tribunals. These administrative tribunals are created by statute. Although the jurisdiction of administrative tribunals to consider the Charter has been questioned, guidance has been provided by the Supreme Court of Canada. In Cuddy Chicks Ltd. v. Ontario (Labour Relations Board)11 a Union filed an application for certification of employees at a chicken hatchery. The issue in Cuddy Chicks was with respect to section 2(b) of the Labour Relations Act. That section stated that it did not apply to persons employed in agriculture. The Union argued that section 2(b) was invalid because it was contrary to section 15 equality provisions of the Charter12. The issue was whether the board could consider and rule on Charter arguments. The majority of a panel, convened for the purpose of hearing the ultimate issue, held that the board had jurisdiction to rule on Charter issues. This jurisdiction was found in three authorities. The authorities were section 24(1) of the Charter, section 52 of the Constitution Act13, and section 106(1) of the Labour Relations Act. Cuddy Chicks did not agree with the ruling and obtained leave to appeal to the Supreme Court of Canada. The Supreme Court dismissed the appeal. The Court held that due to the principle of supremacy of the Constitution, confirmed by s. 52(1) of the Constitution Act, an administrative tribunal which had the power to interpret law also held a concomitant power to determine whether that law was constitutionally valid. The court further held that section 52(1) did not specify who could consider and rule on a Charter question; therefore, jurisdiction had to be conferred on the tribunal by its enabling statute. The tribunal did not need to be a “court” according to section 24(1) to have the authority to consider the application of the Charter. However, it had to have jurisdiction over the entire matter, that is the parties, the subject matter and remedy sought.
In Cuddy, the board had jurisdiction over parties; but since the subject matter and remedy were premised on the application of the Charter, the authority to apply jurisdiction had to be found in board’s enabling statute. Thus, since section 106(1) gave the board jurisdiction over questions of law and because a Charter issue had to be a question of law, the board had authority to apply the Charter. Its jurisdiction was only limited in that it could not give a formal declaration of constitutional invalidity.
Currently, rule 109(6) of the Courts of Justice Act states that section 109 applies to proceedings before boards, tribunals, and court proceedings.
THE DIRECT CONSTITUTIONAL CHALLENGE
A direct constitutional challenge raises many of the same issues that arise in a collateral challenge. However, unlike collateral challenges, the issues of parties, originating process, and the appropriate court are not defined by the nature of the action. Therefore, a direct challenge requires that the parties, the originating process and the court to be determined before a constitutional issue can be brought forth.
a) THE ISSUE OF STANDING
In order to determine whether a party can challenge the constitutionality of a law, the applicant must determine whether or not it has standing, or status, to mount a Charter challenge.
The question whether a person has standing (or locus standi) to bring legal proceedings is a question about whether a person has sufficient stake in the outcome to invoke the judicial process. The question of standing focuses on the position of the party seeking to sue, not on the issue that the lawsuit is intended to resolve.14
Professor Hogg indicates that the restrictions on standing are intended:
1. to avoid opening the floodgates to unnecessary litigation;
2. to ration scarce judicial resources by applying them to real rather than hypothetical disputes;
3. to place limits on the exercise of judicial power by precluding rulings that are not needed to resolve disputes;
4. to avoid the risk of prejudice to persons who would be affected by a decision but are not before the court;
5. to avoid the risk that cases will be inadequately presented by parties who have no real interest in the outcome; and
6. to avoid the risk that a court will reach an unwise decisions of a question that comes before it in a hypothetical of abstract form, lacking the factual context of a real dispute.15
Prior to the enactment of the Charter, standing was determined in accordance with the requirements as defined in the “trilogy of standing cases.”16 The trilogy of cases culminated in Finlay v. Minster of Finance17. The end result of these four cases is a very liberal interpretation of the rule determining standing. Professor Hogg has stated that:
[w]hile it is still the case that a private plaintiff has not right to bring a declaratory action when he or she has no special interest in an issue of constitutional or public law, the courts will grant standing as a matter of discretion to the plaintiff who establishes (1) that the action raises a serious legal question, (2) that the plaintiff has a genuine interest in the resolution of the question, and (3) that there is no other reasonable and effective manner in which the question may be brought to court.18
b) NOTICE OF CONSITUTIONAL QUESTION
Once an applicant has determined that they have standing, they must then establish whom they are going to name in the suit. Generally, because a direct challenge attacks the vires of legislation, the challenge must be directed at the makers of the legislation. Despite the fact that the Attorney General is named in the suit, the applicant must file a notice of constitutional question nonetheless. The steps required in filing a notice are the same as the steps that were previously discussed in the collateral challenge portion of this paper. Simply, the applicant must complete and serve a form 4F on the Attorney General of Canada, and the Attorney General of Ontario. Rule 109 (2.2) requires that the notice be filed at least 15 days prior to the hearing.
c) WHERE WILL THE CHALLENGE BE HEARD?
Section 24 (1) of the Charter provides that:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy, as the court considers appropriate and just in the circumstances. [Emphasis added]
What then, practically speaking, is court of competent jurisdiction?19
In Ontario, a court of competent jurisdiction can be one of three courts. One is the Divisional Court. The Divisional Court is comprised of a panel of three judges from the General Division Court. The purpose of the Divisional Court is to review decisions of administrative tribunals and to review government actions. The Divisional Court was created by the power of the Courts of Justice Act; therefore, the court only has the jurisdiction and powers that the statue confers upon it.
The remedies available through the Divisional Court are mandamus, prohibition, and certiorari. Mandamus is a discretionary prerogative writ issued by a superior court and used to compel public authorities to perform their duties. Mandamus may also be used to ensure the proper exercise of discretion, or to compel observance of the rules of natural justice where a duty to observe those rules is required by statute or can be implied. Prohibition is a process or writ issued by a superior court that prevents an inferior court or tribunal from exceeding its jurisdiction or usurping jurisdiction with which it has not been vested by law. Finally, a certiorari is a means of achieving judicial review. A certiorari is issued from a superior court to one of inferior jurisdiction, inquiring into the validity of the latter. The writ is used to determine of there have been any irregularities in the proceeding of the inferior tribunal.20 The court does not have the authority to declare a statute invalid.21 In more practical terms, the Divisional Court would be the appropriate court to bring a Charter challenge against an employee of a government ministry, such as the Ministry of Transportation. If an employee of the Ministry denied a licence applicant the right to obtain a licence, and applicant may bring a Charter challenge claiming that his section 15 equality rights have been infringed.
Another court is the Federal Court. The Federal Court is a statutory court similar to the Divisional Court. The Federal Court can hear constitutional issues that relate to Federal legislation. However, since the Federal Court is also a statutory court, it is subject to the same limitations that are imposed upon the Divisional Court (outlined above). It should be noted that review of Federal legislation is not required to occur in the Federal Court. It is possible to have the Ontario Court General Division hear cases dealing with Federal legislation and constitutionality.
The High Court of Justice is the third court where a party may bring a constitutional challenge. Unlike the other two courts, the High Court of Justice is a court of inherent jurisdiction; therefore, it is always a court of competent jurisdiction. Because it is a court of inherent jurisdiction, it can grant remedies similar to those outlined above in addition to having the authority to declare legislation invalid. However, the High Court of Justice is not always the most appropriate court in which to commence an action. For example, if the subject matter of the a challenge is already before another court or tribunal, that court would be more appropriate to hear the issue.
d) ORIGINATING PROCESS
The final step to be examined with respect to direct challenges is process. With which process, by an application or by an action, should a party commence a constitutional challenge?
Generally, proceedings are commenced by way of an action. The originating process of an action is issuance of a statement of claim. (Rule 14.01)
14.01 (1) All civil proceedings shall be commenced by the issuing of an originating process by the registrar of the court in which the proceeding is to be commenced, except where a statute provides otherwise and as provided in subrules (2) and (2.1).
Then the originating process is issued. (Rule 14.07)
14.07 (1) An originating process is issued by the registrar’s act of dating, signing and sealing it with the seal of the court and assigning to it a court file number.
(2) A copy of the originating process shall be filed in the court file when it is issued.
If an applicant has insufficient time to prepare a statement of claim, a notice of action may be issued. (Rule 14.03)
14.03 (2) Where there is insufficient time to prepare a statement of claim, an action other than a divorce action may be commenced by the issuing of a notice of action (Form 14C) that contains a short statement of the nature of the claim.
After a statement of claim has been served, a statement of defence must be served and filed in response if the respondent chooses to defend the action. (Rule 18.01)
18.01 Except as provided in rule 18.02 or subrule 19.01(5) (late delivery of defence) or 27.04(2) (counterclaim against plaintiff and non-party). A statement of defence (Form 18A) shall be delivered,
(a) within twenty days after service of the statement of claim, where the defendant is served in Ontario;
(b) within forty days after service of the statement of claim, where the defendant is served elsewhere in Canada or in the United States of America; or
(c) within sixty days after service of the statement of claim, where the defendant is served anywhere else,
18.02 (1) A defendant who is served with a statement of claim and intends to defend the action may deliver a notice of intent to defend (Form 18B) within the time prescribed for delivery of a statement of defence.
Once pleadings have been closed, a notice of examination for discovery of documents can be served on every party that has been joined in the proceeding. (Rule 30)
Following the examination for discovery of documents, either party could make a motion under rule 20, 21, or 22 of the Rules of Civil Procedure.22 A motion under one of the preceding rules can be made anytime after the statement of defence has been filed. Assuming that the motions were not successful, and the examination for discovery process has been completed, the proceeding then moves to trial.
Rule 14.05 of the Rules of Civil Procedure indicates that in some cases a challenge may be brought by an application rather than by an action. Proceedings may be commenced by an application where authorized by a statute (Rule 14.05 (2)) or where authorized by the Rules of Civil Procedure. (Rule 14.05(3)).
Notice of Application
14.05 (1) The originating process for the commencement of an application is a notice of application (Form 14E, 68A, 73A, 74.44 05 75.5).
Application under Statute
(2) A proceeding may be commenced by an application to the Ontario Court (General Division) or to a judge of that court, if a statute so authorizes.
Application under Rules
(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,
(g.1) for a remedy under the Canadian Charter of Rights and Freedoms; or
Following the notice of application, the applicant must then serve the notice of application and all supporting affidavits. (Rules 38.06 and 39.01(2))
Once the notice of application and supporting documents have been served upon the respondent, the respondent, if they should choose to defend, must serve and file a notice of appearance. (Rule 38.07(1))
Notice of Appearance
38.07 (1) A respondent who has been served with a notice of application shall forthwith deliver a notice of appearance (Form 38A).
A respondent who does not deliver a notice of appearance is not entitled to receive notice of any step in the proceeding or other document. Nor is the respondent able to file material, examine a witness, cross-examine on an affidavit, or be heard at the hearing except with the leave of the judge.
If the respondent party has filed a notice of appearance, then the examination of witnesses follows. (Rule 39.03) The parties can cross-examine the opposing parties on the affidavits. (Rule 39.02)
After the process of completing the preceding steps results in each party creating an application record. The respective parties must then file and serve their respective application records to the required parties. Once the parties have been filed and served, the hearing of the application can be completed. At the hearing stage, the presiding judge may either grant the relief sought, dismiss, or adjourn the application in whole or in part with or without terms. In the alternative the presiding judge may order that the whole application, or a single issue, proceed to trial and give such directions as are just (Rule 38.10(1))
Upon a quick reflection of the rules, it is painfully obvious that the rules were not designed in contemplation of the complex constitutional cases proceeding on this basis. For example, rule 39.01(3) simply requires a party to serve and file their documents the day before the hearing is to take place. If counsel were to abide by this last minute deadline, the hope of proceeding in a timely manner would be eradicated simply because opposing counsel would no other alternative than to seek an adjournment. The best resolution to this problem it to have a mutual agreement with opposing counsel for co-operation. It is only with the co-operation of both parties that an application can proceed expeditiously.23
Prior to the adoption of the new Rules of Civil Procedure (post 1985), the issue of originating process was vital. If counsel commenced a proceeding in the wrong originating process, the proceeding may have been quashed. The offending party would then have to start a new originating process in the proper method. This would translate into great costs to the litigants. However, rule 38.11 of the Rules of Civil Procedure gives the court the authority to convert a proceeding commenced by notice of application into an action.
Now, because of rule 2.01, failure to comply with rules of originating process does not render a proceeding a nullity.
However, in the interest of costs and fiscal constraints, it is still in the best interest of counsel to determine the best process so that additional time and cost can be avoided.
In conclusion, I hope that I have been able to adequately delve into the procedure and process of mounting a Charter claim. As previously mentioned, I have tried, wherever possible, to relay as much information as I thought would adequately describe the required steps. If you should find that I have neglected to reflect upon some vitally important procedural step, I would hope that you would contact me so that I may update this informational site. With anticipated diligence, I hope to update this paper and provide current, and relevant information.
Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11. [hereinafter, the Charter]
J.J. Carthy, W.A.D. Millar & J.G. Cowan, The Ontario Annual Practice, 1996-97 (Aurora: Canada Law Book, 1996
For a comprehensive discussion of the steps in an action or application, please see below.
Courts of Justice Act, R.S.O. 1990, Chap. C.43 [hereinafter, the CJA]
See Appendix A.
Rule 109. (2.1) CJA
Rule 109. (2.2) CJA
R.E. Charney, “Litigating Charter Claims” (Address to Canadian Bar Association-Ontario, Continuing Legal Education Seminar, 15 April, 1989.)
Supra, note 8.
Supra, note 8.
 2 S.C.R. 5
It was also argued that s. 2(b) also violated s. 2(d) of the Labour Relations Act.
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
P. Hogg, Constitutional Law of Canada (Toronto: Carswell, 1996)
See Thorson v. Attorney General of Canada,  1 S.C.R. 138; Nova Scotia Censor Board v. MacNeil,  2 S.C.R. 265; and Borowksi v. Attorney General of Canada,  2 S.C.R. 575.
 2 S.C.R. 697
Hogg, supra note 17.
For a very comprehensive and theoretical interpretation of jurisdiction of courts, see J. Sack Q.C., “Where to go and how to get there-Questions of Forum and Form in Charter Litigation” (Address to the Canadian Bar Association, October 25-25, 1986.)
J.A. Yogis, Canadian Law Dictionary (New York; Barron’s Educational Series, 1995)
See Re Service Employees’ International Union and Broadway Manor (1985), 48 O.R. (2d) 225.
See the above descriptions of Rules 20, 21, and 22.
Charney, supra note 8.
Here at least is the entire article re-posted for the use of the Canadian People.
22 April 2010 9:21 pm
I searched for something completely different, but found your website! And have to say thanks. Nice read. Will come back.
17 August 2013 11:16 am
I apologize for not replying sooner. I thank-you for your polite compliment and hope that this information is useful.