Charter Remedies: The Schachter Test and the Problem of Retroactivity

• Author: Christopher D. Bredt, Borden Ladner Gervais LLP, and Tamara D. Barclay
• Profession: Partner, Borden Ladner Gervais LLP/Counsel, Crown Law Office-Civil
• Pages: 403-422

Charter

Remedie

s:

The

Schachter

Test

and the

Problem

of

Retroactivity

Christopher

D.

Bredt*

and

Tamara

D.

Barclay**

A.

INTRODUCTION

In

Schachter

v.

Canada1

the

Supreme Court

of

Canada

set out a

frame-

work

for

analysis

to

provide

a

guide

in

determining

the

appropriate

constitutional remedy.

However,

in

formulating

its

framework,

one

fac-

tor

that

the

Supreme Court

did not

consider

in

detail

is the

problem

of

the

retroactive

effect

of

judicial

remedies.

This problem

is

most pro-

nounced

in

circumstances where

a

challenge

is

brought

to

legislation

that governs private relationships between individuals.

In

such cases,

the

retroactive

effect

of a

judicial

remedy

is

likely

to

affect

settled expec-

tations. This paper will

first

provide

an

overview

of the

Supreme Court

analysis

in

Schachter,

and

will then consider

the

problem

of

retroactivi-

ty.

We

conclude

by

suggesting

further

alternatives

to

consider

in

addressing

the

problems that arise

from

retroactive

judicial

remedies.

*

Partner,

Borden

Ladner

Gervais

LLP.

**

Counsel,

Crown

Law

Office

—

Civil.

1

Schachter

v.

Canada,

[1992]

2

S.C.R.

679

[hereinafter

Schachter].

403

404

Christopher

D.

Bredt

and

Tamara

D.

Barclay

B.

THE

SCHACHTER

TE

ST

1)

The

Facts

in

Schachter

Schachter

involved

a

challenge

to the

different

parental benefits avail-

able under

the

Unemployment

Insurance

Act

(hereinafter

UIA).

Shalom

Schachter

and his

wife

Marcia Gilbert were expecting their second child

in

1985. Schachter wanted

to

stay home with

the

couple's

newborn

as

soon

after

the

birth

as

Gilbert

was

able

to

return

to

work. Although sec-

tion

30 of the

UIA

would have allowed Gilbert

(as the

mother)

to

receive

fifteen

weeks

of

maternity benefits,

no

such provision

was

available

for

fathers

wishing

to

take parental leave

and

receive benefits. Schachter

thus

applied

for

"paternity benefits" under section

32,

which provided

either adoptive parent with

fifteen

weeks

of

parental benefits (which

could

be

shared between them

as

they chose) following

the

placement

of

the

child with them.

As

Schachter

was not an

adoptive

parent,

his

application

for

benefits

was

accordingly denied.

Schachter

brought

a

section

15

Charter

challenge

to the

denial

of

benefits

before

the

Federal Court

Trial

Division.

Mr.

Justice Strayer

(as

he

then was) found that

the

provision

infringed

section

15 by

discrimi-

nating between biological

and

adoptive parents. Turning

to the

issue

of

remedy,

Strayer

J.

held that Schachter should receive

the

benefit

denied

to

him,

and

granted declaratory

relief

under section 24(1)

of the

Charter.

On

appeal

to the

Federal Court

of

Appeal,

the

federal

government

conceded that

the

impugned provision violated section

15, but

argued

that Strayer

J.

erred

in

awarding

a

remedy that extended

the

benefit

to

Schachter.

The

Federal government

was

particularly concerned that

the

effect

of the

remedy ordered

by

Strayer

J. was to

extend

the

maternity

benefit

beyond

its

original target

of

biological mothers,

so as to

include

all

biological parents. Thus,

the

remedy ordered would result

in a

sig-

nificant

increase

in

anticipated expenditures.

The

majority

of the

Federal

Court

of

Appeal upheld

the

trial

court's

decision.

On

further

appeal

to the

Supreme Court

of

Canada,

two

issues were

raised,

namely, what

is the

scope

of the

remedy that

may be

awarded

by

a

court under section

52 and

what

is the

proper role

of

section

24(1)?

The

Supreme Court allowed

the

appeal. Writing

for a

majority

of the

Court,

Chief

Justice Lamer provided

a

detailed

framework

for

analysis

of

con-

stitutional remedies. This analysis

is

reviewed below.