Common Law Damages: The Basis for Charter Damages or Only a Guide?

AuthorW.H. Charles
Chapter 5
Common Law Damages
The Basis for Charter Damages or Only a Guide?
Once courts made the decision that money compensation was an “appro-
priate and just remedy” for violations of the Canadian Char ter of Rights and
Freedoms,1 they then had to face questions about the nat ure of such damages.
What form would they take, what pur poses would they serve, and how would
they be computed? The principles underlying common law damages were
familiar and known to the judiciary, but would common law damages be
a suitable template from which to develop Charter dama ges? How binding
or persuasive should common law damages principles be? Certain ly, the
judiciary recogni zed that civil wrongs were of a dif‌ferent order or status than
breaches of fundamental Char ter rights,2 but how would this d istinction
1 Part I of the Constitution Act, 1982, being Schedule B to the Canad a Act 1982
(UK), 1982, c 11 [Charte r].
2 Justice Wilson, dissenting, in McKinne y v University of Guelph, [1990] 3 SCR
229 at 408, ra ised the issue most directly when she declared, “. . . I believe
that dif‌ferent considerations respec ting appropriate remedial relief should
prevail when constit utional rights and freedoms as opposed to common law
rights are at stake.” In R v Hamil l (1984), 13 DLR (4th) 275 at 297 (BCCA),
Esson JA suggested, “It is arg uable that, in granting civ il remedies for Charter
breaches, courts should asse ss damages at more substantial levels tha n have
prevailed for trespasses a rising out of illegal entry.” Justice Ducha rme, the tria l
judge in Hawley v Bapoo (2005), 76 OR (3d) 649 at 73 4, var’d 2007 ONCA 503
[Bapoo], expressed the view that Char ter dama ges were not necessarily tied,
in terms of the amount of compensat ion awarded, to civil award amounts.
Finally, the Nova Scotia Cou rt of Appeal in Bevi s v CTV Inc (cob ATV/CTV),
2006 NSCA 56 , var’g 2004 NSSC 247, stressed the need for tria l judges to

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