Law Times

PAGE 10 FOCUS September 15, 2008 • Law times Leave sought to appeal Giacomelli to Supreme Court C BY JULIUS MELNITZER For Law Times the Supreme Court of Canada in Canada (Attorney General) v. Hislop seemed to give a defini- tive "no" in answer to that ques- tion. The court ruled that an estate does not have standing to pursue Charter relief, unless the claims had been adjudicated or argued at the time of death. In explaining the exceptions, The March 2007 decision of an an estate continue a claim based on the Charter? the court reasoned that an appeal from a judgment raising Charter issues "must be allowed to sur- vive the party's death pending the appeal"; similarly, where an individual dies after conclusion of argument, but before judgment is entered, "judgment shall be en- tered as the person's estate is not to be prejudiced by the time required for a court to render judgment." But Hislop was a s. 15 case and a class action, so when Os- valdo Giacomelli died before his s. 7 individual action against the federal government was tried, his lawyer, Joe Colangelo, believed that Giacomelli's estate should be allowed to continue the ac- tion, styled Giacomelli Estate v. Canada (Attorney General). "Firstly, unlike Hislop, Gia- comelli started the case while he was still alive," Colangelo says. "And, secondly, the Supreme Court never purported to make the exceptions in Hislop the only possible exceptions to the rule." Colangelo argues that if a per- son has started an action while alive, neither he nor his estate should be prejudiced by the delays inherent in the litigation process. "This is especially so when the delays in this case were occa- sioned by the government's un- successful motion to strike my client's claim," Colangelo says. But Justice Raymond Harris of the Ontario Superior Court of Justice disagreed. In August 2007, Harris stayed any claims for relief "based on violations of s. 7 or s. 15 of the Charter." Earlier this year, a Court of Appeal bench composed of justices Eileen Gillese, Robert Sharpe, and Robert Blair af- firmed Harris' order. Giacomelli, a native-born Canadian citizen of Italian ori- gin was arrested and imprisoned pursuant to the War Measures Act in June 1940, while the Sec- ond World War was pending. He was transferred to a con- centration camp in Petawawa, Ont. and forced to do hard la- bour for which he was paid $6 monthly, with $5 of that sum deducted for the government to compensate itself for the admin- istration of his property. But Giacomelli had no prop- erty at the time, which meant that the money was wrongfully withheld. He sought to have it re- paid with interest in a lawsuit launched in July 2005. He also sought a number of declarations and compensation for his wrong- ful arrest and detention and for lost wages while detained. In November 1990, the fed- eral government admitted that the Joe Colangelo has filed an appli- cation for leave to appeal to the Supreme Court of Canada in Giacomelli Estate v. Canada (Attorney General). wholesale arrest of Canadians of Italian origin during the Second World War was unlawful. But it made no offer of compensation, despite having compensated other ethnic communities and individu- als who suffered similar harm. Giacomelli alleged that the failure to compensate Canadians of Italian origin was discrimina- tory and contrary to Charter ss. 7 and 15. In August 2005, Canada brought a motion to vary the or- der to continue by limiting the estate to pursuing only the claims that arose under the Trustee Act. Harris allowed the application, reasoning that Hislop applied to preclude the estate from pursuing the s. 7 claim even though Hislop was a case based solely on s. 15. Gillese, who wrote the Court moved to strike the claim, but the court denied the application. Giacomelli died in March 2006. On his death, the proceeding was automatically stayed under the Ontario Rules of Civil Procedure, but reinstated when the trustees obtained an order to continue. After Hislop's release, Canada of Appeal's judgment, was also of the view that Hislop was determinative. "[In Hislop], the court ex- plained that rights guaranteed by s. 15(1) of the Charter cannot be asserted by an estate because those rights are personal and, therefore, end with the death of the affected individual," she noted. Nor did Giacomelli's reliance on s. 7 save his Charter claims. "Although the Supreme caseAlert Visit www.canadalawbook.ca to sign up for our no-obligation free trial services. Court only explicitly addressed claims based on s. 15(1), as [Co- langelo] conceded, its reasoning applies equally to the appellant's s. 7 claims," Gillese concluded. Colangelo's argument that the estate was using the Charter as a "shield rather than a sword" did not pass muster with Gillese either. "If, at its essence, a 'defensive use' of the Charter is simply a recharacterization of a s. 7 or s. 15 Charter claim, it is not con- tinued," she wrote. Which is how Gillese saw the Charter claims. "It appears that the motion judge viewed the claims in a sim- ilar fashion," Gillese noted. "At [paragraph] 12 of the reasons, he remarks, 'While the plaintiff invokes the Charter for various forms of relief in the statement of claim, the bulk of the relief sought is purely economic loss occasioned by Charter violations, and any declarations sought are to achieve this ultimate end." The upshot was the appeal could not succeed. Colangelo has filed an appli- cation for leave to appeal to the Supreme Court. At press time, all parties had filed their factums. LT www.canadalawbook.ca CA034 www.lawtimesnews.com CA034.indd 1 LT0915 9/10/08 2:49:09 PM

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