Post?Vancouver (City) v Ward Results

AuthorW.H. Charles
Chapter 7
The Vancouver (City) v Ward1 decision by the Supreme Court of Canada pro-
vided lower courts with a much-needed analy tical structu re with which
to work out Canadian Charter of Rights an d Freedoms2 damages issues.3 But
what would be the practical ef‌fect of th is decision upon Charter damages
claims? How would potential litigants and lower court s respond to the new
judicial guidance? From one commentator’s perspective, the new approach
appeared to be more f‌lexible and open-ended than the pre-War d judicia l ap-
proach.4 Wa rd also demonstrated that C harter dama ges, as a constitutional
remedy, could serve both important public interests and personal, private
needs. Damages could also f‌il l a remedial gap in situations where a dec-
laration of invalidity would not be considered an adequate remedy. From a
more public perspective, the modest compensation awarded by the courts
in Ward would probably not have too negative an ef‌fect on good gover nance.
Of‌fsetting these positive fac tors are the still-ex isting operational restric-
tions on Ch arter dama ges, represented by jurisdictional and time limitations
1 2010 SCC 27, var’g (sub nom Ward v Vancouver (City)) 2009 BCCA 23, var’g
2007 BCSC 3 [ Ward].
2 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982
(UK), 1982, c 11 [Charte r].
3 See Kent Roach, Constitu tional Remedies in Can ada, 2d ed (Toronto: Canada
Law Book, 2013) (loose-leaf October 2 014 supplement) § 11.400 at 11-21.
4 See ibid, § 11.500 at 11-26.2: in R oach’s opinion, the Ward approach is “less rule
based and rest rictive than prev ious jurisprudence.”
U C  D102
as well as the issue of concurrent tort claims.5 In addition, there is a concern
that the $5,000 award granted to Mr Ward might come to be considered
and accepted as a conventional Charte r award.6 Unfor tuna tely, post-War d
experience is somewhat limited, span ning only four and a half years (to the
end of 2014) and involving only thir ty-three cases.7 Even so, some tentative
observations can be of‌fered.
It is interesting to note that the number of post-Ward cases heard by the
courts per year in four and a ha lf years, which amounts to 7.3 cases per year,
is more than three times the number of cases per yea r for the f‌irst period,
1984–94 , (1.9 per year) and more than two times the number of cases per year
for the second period, 1995–2010, (3.3 per year). Greater public familiarity
with the Char ter and its remedies may account for some of the increase in
the number of cases, but a more important factor may be the high-prof‌ile
impact of the Ward decision upon the legal community. The signif‌icant in-
crease in the number of Charte r damages claims goi ng to trial is even more
impressive considering that during the four-a nd-a-half-year period, more
than half a dozen claims have been rejected by the courts at the pre-trial
stage due to inadequate pleadings.8 In some of these cases, t he claimants
have been permitted by the court to a mend their pleadings. How many of
them actually re-liti gated their claims is unknown.
Whether the Ward decision inf‌luenced the number of claims is u n-
certain given the relatively short time involved. But perhaps the Supreme
Court’s analysis of the pur poses of Charter damages a nd clarif‌ication of the
factors involved in establishing the proper basis for a Charte r claim encour-
5 These obstacles are mentioned by Roach, ibid, and Al len M Linden, “Charter
Damage Clai ms: New Dawn or Mirage?” (2012) 39:4 The Advocates’ Quar terly
426. The Supreme Cour t in Ward, above note 1 at para 58, conf‌irms that prov-
incial crim inal courts do not have the power to award da mages under s 24(1)
of the Charte r.
6 See, for example, Roach, above note 3, § 11.721 at 11-31, w ho expresses concern
that a $5,00 0 award might become the standard awa rd for s 24(1) damages
because of the Ward decision. However, he is also comforted by the fac t that
the Supreme Court “appea rs to contemplate that some higher and some lower
sums will be w ithin the range of what is appropriate a nd just.”
7 See Appendi x 1, cases 72–104.
8 Meigs v Canada, 2013 FC 389; Ross v Canada (AG), 2013 BCSC 1464; Henr y v
British Colu mbia (AG), 2013 BCSC 665 [Henry 2013 SC], rev ’d 2014 BCCA 15
[Henry CA]; Biladeau v Ontario (AG), 2014 ONCA 848 ; MacLellan v Canada
(AG), 2014 NS SC 280; Mancuso v Cana da (National Health and Welfare), 2014
FC 708; Grann v Thunder B ay Police Services Board , 2015 ONSC 438; McHale v
Ontario, 2014 ONSC 5179; Hne ihen (Litigation guar dian of) v Centre fo r Addic-
tion and Mental Hea lth (Queen Stree t Division), 2014 ONSC 55.

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