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

• Author: W.H. Charles
• Pages: 67-76

67

Chapter 5

Common Law Damages

The Basis for Charter Damages or Only a Guide?

A. INTRODUCTION

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