CANADA Law and Practice Contributed by: Sujit Choudhry and Mani Kakkar, Circle Barristers
harm from the granting or refusal of the inter - locutory remedy.
to allow the legislature to enact new legislation that is constitutional. Governments have some - times sought extensions of suspended declara - tions of invalidity, and courts have imposed con - ditions on government to grant those extensions – for example, ad hoc administrative mecha - nisms to provide temporary relief for claimants. In addition, courts have sometimes overruled legislation prospectively, in cases where deci - sions mark a significant change in governments’ constitutional obligations. 13.3 Mandating Government Action Through Court Orders In Applications for Judicial Review, courts can issue mandamus – ie, an order requiring the government to take positive action. Such orders require the executive to perform legal duties under statute or common law. In addi - tion, in constitutional cases under the Canadian Charter of Rights and Freedoms, courts have a broad remedial power under Section 24(1) to issue “appropriate and just” relief. Courts have exercised this power on rare occasions to issue structural injunctions, for example, to enforce the Charter’s guarantee of publicly funded pri - mary and secondary education for linguistic minorities. This is also an evolving area of law. 13.4 Next Steps Where a Decision Is Found Unlawful If courts find a decision to be unlawful, govern - ments may appeal the decision to a higher court. If not, they must take steps to comply with the court’s ruling forthwith, and, in Canada, always do. In the rare circumstance where they do not, claimants can return to court to bring contempt proceedings, to ensure enforcement.
13. Remedies 13.1 Damages
It is not possible to be awarded damages in an application for judicial review for decisions that are illegal under administrative law. However, damages are available for violations of rights under the Canadian Charter of Rights and Free - doms by the executive but must be sought by way of action or application. The awarding of Charter damages is discretionary and, to date, is relatively rare. The question is whether the awarding of damages furthers the goals of compensation, vindication and deterrence. The Federal Court has allowed litigants to combine applications for judicial review and actions into a single proceeding, to allow individuals to obtain both administrative law remedies and damages. A growing area of jurisprudence, however, is the awarding of Charter damages in class actions. 13.2 Invalidating Legislation Under Section 52 of the Constitution Act, 1982, unconstitutional legislation has no force or effect. Canadian courts have relied on Sec - tion 52 to issue declarations of invalidity with immediate and fully retroactive effect. However, courts have asserted the power to issue other remedies under Section 52 in relation to legis - lation. For example, courts may read down or interpret legislation to limit its applicability to remain within constitutional bounds; and read-in or sever language to render legislation constitu - tionally compliant. In addition, courts often sus - pend declarations of invalidity in circumstances where creating a legal vacuum would undermine the rule of law or threaten public safety and keep unconstitutional legislation temporarily in place
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