Plaintiffs May Attempt To Overcome Deficiencies By Raising Charter Breaches

Originally published on www.lawyersweekly.ca

You must prove bad faith or wilful conduct to get damages for a Charter breach in Ontario — but in B.C., proof of just the breach is enough. The issue is now before the Supreme Court — and if the B.C. position prevails, more Charter litigation and awards of "Charter damages" can be expected.

In Ferri v. Ontario, [2007] O.J. No. 397, the Ontario Court of Appeal held that proof of "simple negligence" is not sufficient for an award of damages under the Charter. Rather, "wilfulness or mala fides" must be shown. This was re-affirmed the same year in Hawley v. Bapoo, [2007] O.J. No. 2695, where the court reversed a trial judgment awarding Charter damages in the absence of any finding of bad faith or wilful conduct.

In Ward v. Vancouver (City), [2009] B.C.J. No. 91, the issue came squarely before the B.C. Court of Appeal. Significantly, the court referred only to the trial judgment in Hawley, which was subsequently reversed. The appeal decisions in Hawley and Ferri were not mentioned by the B.C. Court of Appeal — a majority of which concluded that neither bad faith, nor even a tort, are required for an award of Charter damages. The dissent, however, held that such damages are not warranted where "the individuals in question, without mala fides, simply made a mistake as to the proper course of action." Notably, the dissent cited the very decision which was the basis for the Ontario Court of Appeal's analysis of the issue: McGillivary v. New Brunswick [1994] N.B.J. No. 265 (N.B.C.A.).

Although the Supreme Court refused leave to appeal in McGillivary, it granted leave in Ward. The appeal was heard on Jan. 18, and the decision is expected this summer. While the court wrestles with the issue, the rest of the country is at loggerheads.

What is the appropriate threshold for an award of Charter damages? Some guidance may be found in one of the Supreme Court's early Charter decisions. In Mills v. The Queen, [1986] 1 S.C.R. 863, Justice William McIntyre wrote that "the Charter was not intended to turn the Canadian legal system upside down." Rather, it was to be "fitted into the existing scheme of Canadian legal procedure." This suggests that claims for Charter damages should...