Case: Manitoba Federation of Labour et al v. The Government of Manitoba, 2023 MBCA 65 (CanLII)

Keywords: labour law; s. 24(1) of the Charter


This case is about an award for s. 24(1) Charter damages made against the Province of Manitoba for “substantially interfering” in contract negotiations between the University of Manitoba and University of Manitoba Faculty Association.

The Trial Judge (McKelvey J.) determines the Province of Manitoba’s conduct violated the University of Manitoba Faculty Association’s s. 2(d) Charter right to associate. (See para. 3). Following a remedy hearing, the Trial Judge orders the Province to pay $19,432,277.45 as compensation, vindication and deterrent damages; strike pay and benefits for loss of salary while on strike. (See para. 5).

The Province appeals, alleging the Trial Judge made errors of law and fact. The Court of Appeal (Beard, Cameron, and leMaistre JJ.A.) disagrees and dismisses the appeal. (See para. 6).


The Court of Appeal decision provides important guidance on the application of s. 24(1) to damages related to wage restraint by a government. (See para. 25). But it is also a very helpful summary for anyone considering the application of s. 24(1), generally.

Starting with the basics, s. 24(1) of the Charter provides:

Enforcement of guaranteed rights and freedoms
24(1) 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.

According to the Court of Appeal, decisions made pursuant to s. 24(1) – including the Trial Judge’s decision herein – are “discretionary and entitled to deference on appellate review”. (See para. 21; R v. Babos, 2014 SCC 16 at para. 48 and Manitoba (Director of Child and Family Services) v. HH and CG, 2017 MBCA 33). However, in this case, the Court of Appeal agreed with Manitoba that whether the Trial Judge misapprehended the nature of the s. 2(d) Charter breach was a question of law reviewable on the standard of correctness. (See para. 23; Housen v. Nikolaisen, 2002 SCC 33 at para. 8). Alleged errors of fact were subject to the palpable and overriding error standard. (See para. 24; Housen at para. 10).

The Court of Appeal provided a detailed summary of the law regarding Charter damages at paras. 25-39 of its reasons, tracing its development from Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 to the “leading case”, Vancouver (City) v. Ward, 2010 SCC 27, and, more recently, Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13. The following are principles derived from the Court’s detailed review of this jurisprudence:

    • Charter remedies are to be approached purposively (see para. 26; Doucet-Boudreau at para. 25);
    • a purposive approach “gives modern vitality” to the maxim of ubi jus, ibi remedium: where there is a right, there must be remedy (see para. 26; Doucet-Boudreau at para. 25);
    • remedies must be responsive and effective (see para 26; Doucet-Boudreau at para. 25);
    • a party challenging a Charter remedy must show the order is not “appropriate and just in the circumstances” (see para. 27; Doucet-Boudreau at para. 50);
    • there must be considerable appellate deference to a trial judge’s choice of remedy (see para. 27; Doucet-Boudreau at para. 87);
    • although constitutional damages are distinct from private law damages, the “private law measure of damages for similar wrongs will often be a useful guide” (see para. 28; Ward at para. 4);
    • damages serve three interrelated functions: compensation, vindication, and deterrence (see para. 30; Ward at para. 25);
    • compensation puts claimants “in the same position as if their Charter rights had not been infringed” (see para. 31; Ward at paras. 27, 48);
    • vindication focusses on harm – individual and societal (see para. 31; Ward at para. 28);
    • deterrence includes regulating government behaviour to secure Charter compliance in the future (see para. 31; Ward at para. 29);
    • a potential claim in tort does not bar s. 24(1) damages, unless the result is “double compensation” (see para. 32; Ward at para. 36);
    • “[g]enerally speaking…an action for Charter damages cannot be combined with a declaration of invalidity under section 52 of the Constitution Act, 1982” (see para. 34; emphasis added);
    • the government does not enjoy immunity from damage awards arising from Charter-infringing policies (see para. 36; Conseil scolaire francophone de la Colombie-Britannique at para. 169);
    • awarding damages in relation to a government decision made in accordance with its own policy helps to ensure the government respects fundamental rights (see para. 37; Conseil scolaire francophone de la Colombie-Britannique at para. 170-173).

Applying these principles, the Court of Appeal determined the Trial Judge’s damage award addressed “all three functions of Charter damages” and was “not convinced” that the Trial Judge made errors of law or fact on a “deferential standard”. (See para. 86).

Counsel for the Appellant: Michael Conner and Michael Bodner (Department of Justice, Winnipeg)

Counsel for the Respondents: Garth Smorang, K.C. and Kristin Worbanski (Myers LLP, Winnipeg)