The P.E.I. Court of Appeal increased the general damages awarded to the Appellant for a breach of his right to freedom of expression under section 2(b) of the Charter of Rights and Freedoms from $15,000 to $75,000 on the basis that the trial judge overlooked evidence regarding the consequences of the Respondent’s infringement on the Appellant

Administrative law – Charter of Rights – Freedom of expression – Employment law – Termination of employment – Damages – Judicial review – Appeals – Evidence – Standard of review of appellate court

Morin v. Prince Edward Island Regional Administrative Unit No. 3 School Board, [2005] P.E.I.J. No. 42, Prince Edward Island Supreme Court – Appeal Division, May 20, 2005, J.A. McQuaid and L.K. Webber JJ.A. and K.R. MacDonald J.

The Court of Appeal had previously determined that the Respondent had infringed the Appellant’s right to freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms because his employment was terminated after he showed a film to his class that was not prepared for presentation in a manner that was suitable for the school authorities. The trial judge, in assessing damages pursuant to section 24(1) of the Charter, awarded the Appellant $15,000 for the violation of his freedom of expression.

The Court of Appeal increased the general damages from $15,000 to $75,000. The Court noted that in reviewing a decision made by a trial judge pursuant to section 24(1) of the Charter, an Appellate Court would be justified in interfering with the exercise of discretion if the trial judge did not give any weight or sufficient weight to the relevant considerations. Furthermore, if the trial judge misdirected himself as to a relevant consideration or made a decision which was so clearly wrong that it amounted to a miscarriage of justice, the appellate Court could also intervene. However, an award should not be set aside because the Court of Appeal was of the opinion that, on its view of the evidence, it would have come to a different conclusion.

Applying this standard of review, the Court was unable to find that the trial judge erred in principle or in fact when he concluded that there was no causal connection proven between the infringement of the Appellant’s section 2(b) right to freedom of expression and the decision not to offer him a contract of employment for the next school year. The trial judge was also correct when he found that the circumstances of the infringement did not warrant an award for punitive damages. However, the evidence did establish that there were effects and consequences to the Respondent’s infringement of the Appellant’s right to free expression. The trial judge overlooked this evidence and did not properly factor the effects and consequences of the infringement into the amount of general damages. The trial judge limited his consideration of damages to the circumstances of the actual denial of the right without considering all of the effects or consequences of the denial on the Appellant which, the Court held, were significant. This resulted in a remedy which did not, in a meaningful way, vindicate the rights and freedoms of the Appellant. As such, the Court of Appeal varied the award of general damages from $15,000 to $75,000.

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