The Canadian Charter of Rights and Freedoms has, so far, had relatively little impact on the law of torts. There are three ways in which tort litigation may be affected by the Charter. First, there are some cases where the Charter is directly relevant and applicable. Second, since the Charter is the repository of the fundamental values and principles of Canadian law, it informs and influences the development of tort law. Third, the Charter is the basis for the development of discrete constitutional torts.
The Charter of Rights and Freedoms is rarely directly applicable to tort litigation. This is because the Charter applies to governmental action17 and, unless there is a substantial governmental connection in the case, the Charter is inapplicable.18Most common law tort litigation between private litigants will not have a sufficient governmental connection to make the Charter directly applicable. There may, exceptionally, be a sufficient governmental connection if a legislative enactment is an integral part of the common law cause of action or if there is a statutory defence to that cause of action. One of the parties may argue that the pertinent legislation is in breach of the Charter and is unconstitutional. Such a finding would directly affect the common law tort litigation.19There may also be a sufficient governmental connection if one of the parties to a common law tort action (not based on a breach of Charter rights) is an official or an organ of government. There does not, however, appear to be a great deal of enthusiasm for this possibility because it risks the development of inconsistent tort principles applicable to governmental and non-governmental litigants.20
The indirect application of the Charter to Canadian tort law has been recognized expressly by the Supreme Court. The Court has observed that the application, interpretation, and development of the common law must be informed by, and be consistent with, the fundamental constitutional values enshrined in the Charter.21To this extent, the Charter is relevant to tort law. In the latter years of the twentieth century, there was little indication that the Charter would play a significant role in reshaping and reformulating tort doctrine. In more recent years, reliance on Charter values is more common. The change in attitude is most striking in the law of defamation where there is tension between the
Charter values of free speech and freedom of the press and the jealous protection of reputation found in tort doctrine. The Supreme Court initially applied the conventional...