Guimond v. Quebec (Attorney General) [1996] 3 S.C.R. 347: Class action -- Authorization -- Colour of right -- Respondent sentenced to imprisonment after failing to pay fines -- Respondent seeking authorization to proceed by class action to claim damages from government for breach of his constitutional rights and those of others in similar situation -- Respondent alleging that statutory sentencing provisions infringing both Canadian and Quebec charters of rights

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Civil procedure -- Class action -- Authorization -- Colour of right -- Respondent sentenced to imprisonment after failing to pay fines -- Respondent seeking authorization to proceed by class action to claim damages from government for breach of his constitutional rights and those of others in similar situation -- Respondent alleging that statutory sentencing provisions infringing both Canadian and Quebec charters of rights -- Whether authorization should be granted -- Whether respondent failed to establish serious colour of right -- Code of Civil Procedure, R.S.Q., c. C-25, art. 1003(b).

The respondent was sentenced to imprisonment upon default of payment of fines for infractions to the Quebec Highway Safety Code. He spent 49 days in prison and, while on conditional release, he sought judicial authorization under art. 1003 of the Code of Civil Procedure to initiate a class action to claim damages for the alleged constitutional invalidity of his detention (and the detention of other members of the class), on the basis that the sentencing provisions of the Code of Penal Procedure and its precursor, the Summary Convictions Act, infringed the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms. The respondent's actions sought both a declaration of constitutional invalidity under s. 52 of the Constitution Act, 1982 and compensatory and moral damages under art. 1053 of the Civil Code of Lower Canada and s. 24(1) of the Canadian Charter. The Superior Court judge rejected the respondent's application for authorization, one of the grounds being that the facts alleged did not seem to justify, prima facie, the conclusions sought. The majority of the Court of Appeal reversed the judgment.

Held: The appeal should be allowed.

One of the conditions set out in art. 1003 of the Code of Civil Procedure to justify the bringing of a class action is, in para. (b), that "the facts alleged seem to justify the conclusions sought". Under art. 1003(b), the judge is not called upon to determine the merits of the case but instead must exercise the discretion afforded to the Superior Court to decide whether the application has a "serious colour of right" for determination by the court. This condition will be met simply by showing a prima facie right. In this case, the crux of the respondent's application is the claim for damages. The allegation of constitutional invalidity is merely a necessary prerequisite to this principal issue. An action for damages under the general law of civil damages will not generally lie against the government for damages arising from the enactment or enforcement of laws subsequently determined to be unconstitutional. As well, as a general rule, an action for damages under s. 24(1) of the Canadian Charter cannot be coupled with a declaratory action for invalidity under s. 52 of the Constitution Act, 1982. The respondent based his claim for damages under s. 24(1) on a bare allegation of unconstitutionality. The facts in this case did not warrant a departure from the general rule. The Superior Court judge's conclusion that the case failed to meet the threshold under art. 1003(b) of a "serious colour of right" was, therefore, a reasonable exercise of the discretion afforded to him under that article and accordingly ought not to have been interfered with.

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