The Second Period of Evolution, 1995?2010

• Author: W.H. Charles
• Pages: 23-50

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Chapter 3

The Second Period of Evolution

1995–2010

A. INTRODUCTION

The second chronological period under review covers the year s 1995 to 2010

and includes both the trial and Cour t of Appeal decisions in Ward v Van-

couver (City).1 The sample of f‌ifty cases decided by the courts during t his

period comprises sixty-four cou rt decisions, or forty-six tr ial decisions and

eighteen court of appeal decisions.2 Of the f‌ifty cases, eight involve federal

courts, comprising thi rteen decisions.3

B. SUCCESS RATE

Damages under the Canadi an Charter of Rights and Freedoms4 were awarded

by the courts in approximately one-third of t he cases and rejected in two-

thirds.5 Lookin g only at court of appeal decisions, an almost even split is

1 2007 BCSC 3 [ Ward SC], af‌f’d 2009 BCCA 23 [Ward CA] , var ’d (sub nom Van-

couver (City) v Ward) 2010 SCC 27 [Ward SCC].

2 These decisions can be found in Appendix 1.

3 Pack MJ Inc v Canada, [1998] FCJ No 1922 (CA) [Pack MJ ]; Dulude v Canada

(1997), 138 FTR 301 (TD), rev’d [2000] 1 FC 545 (CA) [Dulude]; Pearson v

Canada, 2006 FC 931, af‌f ’d 2007 FCA 380, leave to appeal to SCC refu sed,

[2008] SCCA No 299 [Pears on]; Samimifar v Canada (Ministe r of Citizenship

and Immigration), 2006 FC 1301, af‌f ’d 2007 FCA 248; Khalil v Ca nada, 2007

FC 923, af‌f ’d 2009 FCA 66 [Khalil].

4 Part I of the Constitution Act, 1982, being Schedule B to the Canad a Act 1982

(UK), 1982, c 11 [Charte r].

5 For ease of reference, these cases are listed in appendices 15 & 14 . The precise

f‌igures show judicia l awards in 34 percent of the cases and a reject ion of

claims in 66 percent of the ca ses.

U C  D24

found between awards and rejections.6 These resu lts stand in sharp con-

trast to the f‌irst period (1984–94) results, wh ich showed a rejection rate by

courts of appeal of almost 100 percent.7

C. REASONS FOR REJECTION

The most prevalent reason for rejecting Charte r damages claims w as the

courts’ insistence upon some level of fault, usually in t he form of mala f‌ides,

or malicious conduct on the Crown’s part. These cases accounted for 67

percent of the rejection cases during the period u nder review.8 The second-

most prevalent reason for rejection was claimants’ failu re to prove a Charter

violation (21 percent).9 Together these two bases for rejection accounted

for almost 90 percent of all rejections. Other less statistica lly signif‌icant

reasons for rejection of damages claims included application of the rule in

Schachter v Canada10 (three cases),11 conf‌lict with tort recovery (two cases),12

6 Of the fourteen cour t of appeal decisions involved, Charter da mages were

awarded in six cases a nd denied in eight cases. For a list of these decisions,

see Appendix 16.

7 Durin g the f‌irst review period, 1984 –94, courts of appeal re jected damages

claims in six cas es while awarding damage s in only one case. See Chapter 1,

Section C(1), above, and for a list of the cases involved, see Appendix 7. The

Quebec Court of Appea l in Patenaude v Roy (1994), 23 DLR (4th) 78 [Paten-

aude], was the only court of appea l to award Charter dama ges during this

earlier period.

8 For a list of these cases, see Appendix 1 4.

9 For ease of reference, these cases are lis ted in Appendix 18.

10 [1992] 2 SCR 679 [Schachter].

11 The rule was applied in She wfelt v Canada (1997), 28 BCLR (3d) 340 (SC); Pac k

MJ, above note 3; Chua v MNR, [2001] 1 FC 641 (TD).

12 Jane Doe v Toronto (Metropolitan) Commiss ioners of Police (1998), 39 OR (3d)

487 (Gen Div) [Jane Doe]; Ernst v Q uinonez, [2003] OTC 847 (SCJ) [Ernst].