Roncarelli v. Duplessis and damages for abuse of power: for what did it stand in 1959 and for what does it stand in 2009?

• Author: Mullan, David J.

Today, Roncarelli v. Duplessis is most celebrated for the contributions that Justice Rand's judgment in particular made to a rule of law-based conception of the exercise of discretionary power. However, from a contemporary perspective, the Supreme Court of Canada's decision was seen not only as another significant judicial reining in of the Duplessis government's treatment of Jehovah's Witnesses, but also as an important development in the law governing governmental liability for abuse of power.

In this paper, the author explores the latter dimension of the judgment with a view to establishing the grounds on which the Court found Duplessis personally liable in damages to Roncarelli, and the extent to which it transcended the particular provision on which liability was based (article 1053 of the Civil Code of Lower Canada) and had application at common law. He also evaluates the subsequent impact of this aspect of the judgment. How have later courts read the judgment's articulation of the principles of delictual liability, and what are the current principles on which the liability of state actors for abuse of power are based? Here too, the author concludes that the current state of the law is closer to that espoused by Justice Rand than the bases on which the other members of the majority predicated liability.

De nos jours, le jugement Roncarelli c. Duplessis, et celui du juge Rand en particulier, est surtout reconnu pour sa contribution a une conception de l'exercice du pouvoir discretionnaire basee sur la primaute du droit. Toutefois, d'un point de vue contemporain, la decision de la Cour supreme du Canada constitue non seulement un moyen judiciaire de contrer le traitement reserve aux Temoins de Jehovah par le gouvernement Duplessis, mais aussi un developpement important du droit sur la responsabilite gouvernementale envers les abus de pouvoir.

Dans cet essai, l'auteur explore cette derniere dimension du jugement afin d'etablir les motifs pour lesquels la Cour a tenu Duplessis personnellement responsable des dommages occasionnes a Roncarelli. L'auteur examine aussi dans quelle mesure la Cour a transcende l'article sur lequel reposait la responsabilite (l'article 1053 du Code civil du Bas Canada) et qui etait egalement applicable en common law. De plus, l'auteur evalue l'impact subsequent de cet aspect du jugement. Comment les cours ulterieures ont-elles interprete la formulation, dans le jugement, des principes de responsabilite delictuelle ? Sur quels principes la responsabilite des acteurs etatiques envers les abus de pouvoir est-elle actuellement basee ? Ici encore, l'auteur conclut que l'etat actuel du droit se rapproche plus de la vision epousee par le juge Rand pour fonder la responsabilite que de celle des autres juges ayant rendu l'opinion majoritaire.

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Introduction I. What Did Roncarelli Decide on the Issue of Article 1053 Liability? II. Situating Roncarelli within 1959 Case Law on the Liability of Public Office Holders A. Common Law B. Article 1053 of the Civil Code of Lower Canada III. Roncarelli through 2009 Eyes Conclusion In the perspective of history, Roncarelli v. Duplessis may be looked upon as a milestone chiefly in the interpretation of art. 1053 C.C.

Claude-Armand Sheppard (1)

Introduction

In contemporary public law writing, Roncarelli v. Duplessis (2) presides over modern Canadian administrative law theory, principally through the judgment of Justice Rand, as a liberal, rights-based decision (unusual for its time) that gathered its normative force from underlying constitutional principles. The case concerned the protection of civil and political freedoms on which the formal constitution was based. Seen through the lens of the Reference Re Secession of Quebec. (3) and its identification of the four underlying principles of the Canadian constitution, Roncarelli represents a spectacular affirmation of the rule of law (in various guises) as well as the protection of minorities.

In this paper, it is not my mission to call into question this current characterization of the decision in general and especially the judgment by which Roncarelli is most remembered. Indeed, it is a tribute to Justice Rand that his identification of the criteria by reference to which Prime Minister Duplessis's actions (and those of Liquor Commissioner Archambault) were to be judged has survived the test of time and massive evolution in the principles of Canadian judicial review of administrative action. Yet it also should not be surprising to find examples of judgments the sagacity and profundity of which become apparent long after their release.

The modern sense of the importance of the decision does not detract from those features that made it a historic landmark decision in Canadian public law from the day that it was released on 27 January 1959. First and foremost, as litigation, it is a poignant story of persistence in the face of seemingly insuperable obstacles. It is the ultimate triumph of citizens over unbridled government power exercised at the highest level: it is the operation of Diceyan principles in the best sense. In terms of the judicial review canon of its day, it represented a law teacher's dream example of the principle that discretionary decisions based on irrelevant factors (or, as Mark Aronson puts it, considerations that are not "functionally relevant to the regulatory scheme") (4), taken for improper purposes, and dictated by an official without statutory authority were amenable to judicial review, but made possible only by reason of Maurice Duplessis's willingness to be frank about his role in the series of events that led to the cancellation of Frank Roncarelli's liquor licence. (5) It also reveals a majority of the Supreme Court of Canada that was not going to be distracted by overly technical arguments about the reach of notice and liability restrictions from confronting the merits of the claim that Roncarelli was advancing against the prime minister of Quebec. In short, the decision contains a lot of "good" statutory interpretation in the sense of purpose-driven, rights-informed readings of relevant provisions. (6) Perhaps most importantly, as suggested by the extract above from Claude-Armand Sheppard's contemporary assessment of the judgment, Roncarelli constituted a precedent that established new principles of delictual liability for abuse of public power.

It is on this last feature that I will focus my attention in this essay. For what proposition does Roncarelli stand on the extent to which statutory authorities are accountable in damages for actions that are amenable to judicial review? Why did Claude-Armand Sheppard regard the case as a groundbreaking decision on the scope of article 1053 of the Civil Code of Lower Canada? What relevance, if any, did it have to common law tort liability in similar settings? How have courts applied or extended Roncarelli subsequently? What represents the current law governing the liability of statutory authorities for action or inaction that gives rise to an application for judicial review? Is the current law compatible with the approach taken in Roncarelli, and to what extent does it represent an appropriate set of principles for imposing civil liability for wrongdoing on statutory and prerogative authorities?

The examination will, however, be limited by the particular context of Roncarelli. More particularly, I do not want to engage in a detailed assessment of the principles on which public authorities are held accountable in negligence. (7) My concern is principally the ultra vires exercise of discretionary power by statutory and prerogative authorities and especially high-level functionaries such as the prime minister of Quebec and the chairman of the Quebec Liquor Commission. (8)

1. What Did Roncarelli Decide on the Issue of Article 1053 Liability?

   I suppose it might be possible to distill the holding on liability into the following proposition: acting in his personal capacity, Duplessis wronged Roncarelli and caused him damage for which Duplessis was found liable. However, this begs a number of questions. Why was Duplessis held to be acting in a personal rather than an official capacity? Aside from enabling the majority to circumvent a statutory provision as to notice, was this an otherwise essential ingredient in the imposition of liability? What precisely was the wrong committed by Duplessis? Was it a wrong that depended on proof of bad faith or malice, or was it much more broadly based, depending simply on proof of Duplessis's arrogation of a power that he did not at law possess or the exercise of power for a wrongful purpose? Was it a wrong that existed beyond the confines of article 1053 of the Civil Code of Lower Canada (C.C.L.C.) or did it depend on the particular language of that provision and its associated jurisprudence?

   The reality is that it is difficult to construct support from the various judgments in Roncarelli for any particular theory or principles governing the liability of public officials in damages for acting in excess of power. On this issue at least, it is a decision of the sort that still sometimes surfaces today. In it, there are multiple judgments dealing with a critical issue in such differing ways that there is in reality no majority holding or ratio. (9) Indeed, an examination of the various judgments of the lower courts in this case does little to clarify the situation.

   In finding Duplessis liable, the trial judge Justice Mackinnon held that the provision with respect to notice did not apply because Duplessis had no authority to interfere with the administration of the liquor licensing statute. (10) He was therefore not acting in the exercise of his functions. However, thereafter, it was not at all clear that this was also a sufficient basis for a finding of wrong under article 1053 C.C.L.C. That may have been predicated not just on Archambault having acted on the direction of Duplessis...