Johnson v. British Columbia (Attorney General), 2022 BCCA 82

In Johnson v. British Columbia (Attorney General), 2022 BCCA 82, Gudmundseth Mickelson LLP successfully represented the Her Majesty the Queen in Right of British Columbia in a case concerning the availability of Charter damages and fiduciary duties owed by the government.

CASEJohnson v. British Columbia (Attorney General), 2022 BCCA 82

COURT: British Columbia Court of Appeal

COUNSEL:  Andrew D. Gay, K.C. and Natasha E. John


The plaintiffs, who were inmates in a Provincial correctional facility, claimed damages for sexual assaults allegedly committed in the mid-1980s by a former corrections officer employed by the Province. Initially, the causes of action pleaded against the Province were (1) negligence; (2) vicarious liability; and (3) breach of fiduciary duty. The plaintiffs later amended the claim to allege breaches of their ss. 7 and 12 Charter rights and to claim Charter damages. The alleged Charter violations were one and the same as the alleged torts.

The Province applied to strike the plaintiffs’ claim for Charter damages on the basis that the availability of tort damages was a countervailing factor that rendered Charter damages inappropriate or unjust. The Province also applied to strike the plaintiffs’ claim for breach of fiduciary duty on the basis that the Province did not owe the plaintiffs a fiduciary duty.

The British Columbia Court of Appeal found in the Province’s favour on both issues.

On the first issue, the Court of Appeal held that, assuming the facts pleaded by the plaintiffs to be true, the Charter damages claim had no reasonable prospect of success because the alleged Charter violations were the same as alleged torts, and the alleged harms resulting from the Charter claims and the tort claims were identical. As a result, the Court held that there was no possible basis for an additional award of Charter damages over and above the amounts that would be awarded as tort damages.

On the second issue, the Court of Appeal held that the Province could not be said to owe a fiduciary duty to the plaintiffs because it had not undertaken to act in their best interests, a necessary element of the claim. The Court found that language of the legislation governing the operation of correctional facilities at the material time was incompatible with such an undertaking, and that the undertaking could not be inferred from the nature of the relationship between the Province and inmates. An issue that remains to be resolved is whether individual actors, such as the alleged perpetrator, could owe a fiduciary duty to inmates and, if so, whether the Province could be vicariously liable for the employee’s breach of that duty.


The Court’s decision on Charter damages confirms that there is no advantage for claimants to affix a Charter label on what is in substance a personal tort claim. In such circumstances, the Court confirmed that tort law provides an effective remedy. This provides helpful guidance to governments and actors that owe Charter obligations, as well as those with potential damages claims against governments.

The Court’s decision on the fiduciary claim reinforces that governments will only be found to owe fiduciary circumstances in limited circumstances. The Court accepted that the Province must make policy decisions and decisions involving the allocation of limited public funds, both within and outside of the correctional system, which necessarily entails a balancing of the interests of prisoners in provincial institutions and the interests of society more broadly. This balancing is true of most of the Province’s institutions, not just correctional facilities, and necessarily limits the circumstances in which fiduciary duties could be owed.


If you have further inquiries about this or other public law, complex commercial, or regulatory matters, please contact Andrew D. Gay, K.C.