Post?Vancouver (City) v Ward Results

• Author: W.H. Charles
• Pages: 101-121

101

Chapter 7

POST–VANCOUVER (CITY) v WARD R ESULT S

A. INTRODUCTION

The Vancouver (City) v Ward1 decision by the Supreme Court of Canada pro-

vided lower courts with a much-needed analytical structure with which

to work out Canadian Charter of Rights and Freedoms2 damages issues.3 But

what would be the practical ef‌fect of this 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-Ward judicia l ap-

proach.4Ward also demonstrated that Charter dama ges, as a constitutional

remedy, could serve both important public interests and personal, private

needs. Damages could also f‌ill 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 Charter 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 [Charter].

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 Charter award.6 Unfor tunately, post-Ward

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 year 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 Charter 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 Charter damages claims goi ng to trial is even more

impressive considering that during the four-and-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, the claimants

have been permitted by the court to amend their pleadings. How many of

them actually re-liti gated their claims is unknown.

Whether the Ward decision inf‌luenced the number of claims is un-

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 Charter 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 Charter.

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.