Osvaldo Giacomelli, Deceased, by his executors, Leonard Giacomelli and Lou Intini v. Attorney General of Canada representing Her Majesty the Queen in Right of Canada

(Ontario) (Civil) (By Leave)




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Charter of Rights - Constitutional law - Right to equality - Right to life, liberty and security of person - Scope of Charter protection - What is the scope of the rights of an individual who commences a Charter claim during his lifetime but who dies before the claim comes to trial? - Whether Canada (Attorney General) v. Hislop, [2007] 1 S.C.R. 429, 2007 SCC 10, is applicable only to the claims made by estates of claimants in a class action or whether it is of general application to actions commenced during the lifetime of an individual and continued following the individual’s death - What is the jurisdiction of courts to relieve against the strict application of the rule in Hislop where the government fails and delays in making compensation for an admitted historical wrong? - Whether the rule in Hislop precludes the use of the Charter as a defensive remedy.

The Applicant was a Canadian citizen of Italian origin who brought a claim against the Respondent after having been wrongfully arrested and detained in 1940 under the Defence of Canada Regulations, 1940 made pursuant to the War Measures Act, R.S.C. 1927, c. 206. The claim alleged violations of ss. 7 and 15 of the Canadian Charter of Rights and Freedoms. The Respondent sought to strike the statement of claim as disclosing no reasonable cause of action, but its motion was unsuccessful. The Applicant died on March 4, 2006 and the proceeding was stayed in accordance with the Rules of Civil Procedure pending an Order to Continue, which was obtained by the trustees of the Applicant’s estate on July 13, 2006. Following the Supreme Court of Canada’s decision in Hislop, the Respondent brought a motion to vary the Order to Continue. The Respondent asked that the order be varied so that any Charter claims could not be continued by the estate. The motion was granted. The Applicant’s subsequent appeal was dismissed.

Lower Court Rulings

August 15, 2007
Ontario Superior Court of Justice

See file
May 2, 2008
Court of Appeal for Ontario

C47677, 2008 ONCA 346
See file