The Second Period of Evolution, 1995?2010

AuthorW.H. Charles
Chapter 3
The Second Period of Evolution
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
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
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].

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