Originally published in The Lawyers Weekly, Focus on
Constitutional Law, April 16, 2010
You must prove bad faith or wilful conduct to get damages for a
Charter breach in Ontario — but in B.C., proof of just
the breach is enough. The issue is now before the Supreme Court
— and if the B.C. position prevails, more Charter
litigation and awards of "Charter damages" can be
In Ferri v. Ontario,  O.J. No. 397, the Ontario
Court of Appeal held that proof of "simple negligence" is
not sufficient for an award of damages under the Charter. Rather,
"wilfulness or mala fides" must be shown. This
was re-affirmed the same year in Hawley v. Bapoo, 
O.J. No. 2695, where the court reversed a trial judgment awarding
Charter damages in the absence of any finding of bad faith or
In Ward v. Vancouver (City),  B.C.J. No. 91, the
issue came squarely before the B.C. Court of Appeal. Significantly,
the court referred only to the trial judgment in Hawley,
which was subsequently reversed. The appeal decisions in
Hawley and Ferri were not mentioned by the B.C.
Court of Appeal — a majority of which concluded that
neither bad faith, nor even a tort, are required for an award of
Charter damages. The dissent, however, held that such damages are
not warranted where "the individuals in question, without
mala fides, simply made a mistake as to the proper course
of action." Notably, the dissent cited the very decision which
was the basis for the Ontario Court of Appeal's analysis of the
issue: McGillivary v. New Brunswick  N.B.J. No. 265
Although the Supreme Court refused leave to appeal in
McGillivary, it granted leave in Ward. The appeal
was heard on Jan. 18, and the decision is expected this summer.
While the court wrestles with the issue, the rest of the country is
What is the appropriate threshold for an award of Charter
damages? Some guidance may be found in one of the Supreme
Court's early Charter decisions. In Mills v. The
Queen,  1 S.C.R. 863, Justice William McIntyre wrote
that "the Charter was not intended to turn the
Canadian legal system upside down." Rather, it was to be
"fitted into the existing scheme of Canadian legal
procedure." This suggests that claims for Charter damages
should be approached in a manner analogous to common law
However, if the B.C. position ultimately carries the day, a
litigant claiming Charter damages need not prove that any tort was
committed, let alone bad faith. On this approach, litigants may sue
for — and be awarded — Charter damages despite
having no independent cause of action in law. Plaintiffs might also
attempt to overcome deficiencies in their causes of action by
raising alleged Charter breaches. For example, in an action
alleging malicious prosecution, the breach of a specific Charter
right might be pleaded in an attempt to overcome the failure to
The Supreme Court, however, recently reaffirmed that malice in
this context means an "improper purpose" in Miazga v.
Kvello Estate,  S.C.J. No. 51. Similarly, for at least
some alleged Charter violations, it would be unworkable to do away
with a requirement for proof of "intentional" conduct. A
breach of the s. 9 right against "arbitrary" detention,
for example, would seem to require more that just a neutral factual
finding as to a particular occurrence.
Ultimately, as was neatly framed by the dissent in
Ward, should Charter damages be available where state
actors "simply made a mistake" in the otherwise good
faith exercise of their duties? The balance of current authority
seems to say "no," on the basis that the justice system
cannot function properly if so little is required to establish a
It remains to be seen whether the Supreme Court will turn the
analysis upside down and fit the legal system into a new and
broadened category of constitutional liability.
Stuart Zacharias is an associate at Lerners LLP in Toronto
with a civil defence practice.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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