Global law firm Baker McKenzie represented the Canadian Constitution Foundation as an intervenor in a Supreme Court of Canada appeal regarding state immunity. On 19 July 2024, the Supreme Court confirmed in Attorney General of Canada v. Joseph Power that the state can be required to pay damages for making unconstitutional legislation in limited circumstances, affirming arguments made by Baker McKenzie, on behalf of the Foundation.
The Baker McKenzie team was led by George Avraam and included Jennifer Bernardo and Rono Khan.
The issue in Power concerned whether the state has absolute immunity from a civil suit seeking damages for the enactment of legislation declared unconstitutional. The government said it does have absolute immunity, and Power, who claimed to have suffered damages flowing from unconstitutional legislation, said otherwise.
The lower court applied a rule from an older Supreme Court of Canada case called Mackin v New Brunswick to conclude that state immunity is not absolute. The Attorney General appealed that lower court decision to the Supreme Court of Canada, and the Canadian Constitution Foundation was granted leave to intervene in that appeal.
The Foundation was not taking a position on the merits of the case, but instead focused on the issue of whether or not the state is entitled to absolute immunity.
Added George Avraam, a partner in the Firm's Employment & Compensation Practice and Managing Partner of Baker McKenzie's Toronto Office: "We are pleased that the Supreme Court agreed with our client's submission that 1) negligence was too low a bar to award damages but 2) courts should award damages where legislation is unconstitutional on its face, where the state was reckless or willfully blind as to a law's unconstitutionality, or where the state acted in bad faith or abused its power."
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