Charter Damages

At Grigoras Law, we stand firm in upholding your rights under the Canadian Charter of Rights and Freedoms. One of our areas of expertise is Charter Damages, a distinct remedy for violations of these rights. Understanding the complexities of Charter Damages can be challenging, so let’s break it down.

Understanding Charter Damages

Charter Damages are a distinct type of constitutional damages that one can seek for a breach of rights or freedoms as guaranteed by the Canadian Charter of Rights and Freedoms. This principle is anchored in landmark cases such as Vancouver (City) v. Ward and Jane Doe v. Toronto (Metropolitan) Commissioners of Police.

In these cases, the Supreme Court of Canada established that when your rights are infringed, you may apply to a court of competent jurisdiction for a remedy the court considers appropriate and just. This includes the right to sue governments for civil damages for a breach of a Charter provision.

The Case of Vancouver (City) v. Ward

The case of Alan Cameron Ward, a Vancouver-based lawyer wrongly suspected of intending to harm the Prime Minister, is pivotal in understanding Charter Damages. Despite the rights infringement, the right to seek damages is not without bounds. The Court outlined that actions for public law damages are against the State, not individual actors, and should not replace tort action.

The decision in Ward provides a useful framework to analyze whether damages are an “appropriate and just” remedy. This determination involves a four-step process:

  1. Establish a Charter breach.
  2. Demonstrate that awarding damages serves at least one of the three functions: compensation, vindication, or deterrence.
  3. Consider any countervailing factors against awarding damages.
  4. Determine the appropriate quantum or amount of money.

The Three Interrelated Functions

Charter Damages under s. 24(1) further three interrelated objectives of the Charter:

  • Compensation: To restore the claimant, as nearly as possible, to the condition they were in prior to the breach.
  • Vindication: To repair the breach, maintain the integrity of the Charter, and recognize the societal harm if Charter breaches go unanswered.
  • Deterrence: To discourage government actors from future Charter breaches.

How Grigoras Law Can Help

At Grigoras Law, our role is to guide you through the complexities of the legal process, help you establish a Charter breach, and represent your interests to achieve compensation, vindication, or deterrence. We deal with both plaintiffs alleging Charter damages and defendants defending against such allegations.

Our team is adept in analyzing whether damages are an “appropriate and just” remedy in your unique circumstances and calculating the appropriate quantum. We’re skilled at considering countervailing factors and assessing the potential of alternative remedies.

With the jurisprudence on Charter Damages developing incrementally, our team stays on top of emerging case law, ensuring we can advocate for your rights effectively.

Don’t let violations of your Charter rights go unchallenged. Contact us at Grigoras Law, and let our team provide the expert representation you deserve.


Disclaimer: The answers provided in this FAQ section are general in nature and should not be relied upon as formal legal advice. Each individual case is unique, and a separate analysis is required to address specific context and fact situations. For comprehensive guidance tailored to your situation, we welcome you to contact our expert team.

The amount one can get from a successful Charter Damages claim varies greatly, and is determined based on several factors, as outlined in the Ward framework. This fourth step of the framework assesses the quantum of Charter damages, which must be “appropriate and just” as required by 24(1) of the Charter.

The first determinant is the degree to which an award of damages serves the three core purposes of Charter damages: compensation, vindication, and deterrence. Compensation refers to the financial reparation for a plaintiff’s personal loss suffered due to the state’s violation of their constitutional rights. Such compensable loss can include pecuniary loss, physical and psychological injuries, cost of medical treatment, and any financial losses, including loss of earnings. Non-pecuniary losses, which are not directly quantifiable in financial terms, are also compensable and are typically set at a fairly modest rate, with adjustments made based on the degree of suffering in each specific case. In catastrophic injury cases, the Andrews cap applies.

Several additional factors may limit the quantum of damages. For instance, awards can be significantly reduced if the violation of the plaintiff’s Charter rights was trivial or momentary, if there was minimal personal loss or no physical injury suffered, or if the state action was carried out lawfully, in good faith, and for a valid public purpose. The seriousness of the state misconduct and the impact of the violation on the claimant is also instructive. In cases where Charter violations arose from state action taken in bad faith or without lawful basis, the awards could be higher.

To provide a practical example, in Vancouver (City) v. Ward, the plaintiff was awarded $5,000 in Charter damages for being mistakenly identified and arrested, wrongfully strip-searched, and held for several hours. His car was also impounded. A similar amount was awarded in Fleming v. Ontario, where the plaintiff was wrongfully arrested, prevented from attending a peaceful protest, seriously injured, and held in a police van and jail cell for two and a half hours.

In a more extreme case, Henry v. British Columbia (Attorney General), the plaintiff successfully sued the Attorney General and received about $8 million in damages. The Crown failed to disclose a significant amount of evidence that was relevant to his defence, which led to his convictions for sexual assaults being set aside.

It’s important to understand that Charter damages must be appropriate and just not only to the plaintiff but also to the state. This implies that Charter damages should not disproportionately divert large sums of public funds to private interests, nor should they deter governments from experimenting with new policies and programs. However, these concerns may be less pronounced in class proceedings where a multitude of individual claims are aggregated. Also, substantial Charter damages awards can be attracted for violations of collective rights, such as minority language education rights under s. 23 of the Charter.

In conclusion, while there is no fixed sum for Charter damages claims, the quantum is decided based on a variety of factors, including the nature of the rights violation, the seriousness of the state misconduct, the personal loss suffered by the plaintiff, and the effect of the award on the state. A legal professional would be best equipped to assess the potential award in any given case based on the specific circumstances and precedents.

Yes, you may have the ability to sue for Charter damages if you believe the Crown prosecutor intentionally withheld evidence in your case.

Charter damages are a unique remedy recognized under Canadian law to compensate for violations of Charter rights. A specific instance of this cause of action applies to the wrongful non-disclosure of evidence by Crown prosecutors during criminal proceedings.

The relevant Charter rights in this scenario are your rights under ss. 7 and 11(d) to make full answer and defence. Section 7 protects your life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Section 11(d) guarantees your right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

Charter damages for wrongful non-disclosure differ from private law damages for malicious prosecution. Unlike malicious prosecution, which requires a finding of malice, Charter damages for wrongful non-disclosure can be claimed where the Crown prosecutor knew, or ought to have known, that the undisclosed information was material to the defence and that the failure to disclose would likely affect your ability to make full answer and defence.

The framework for seeking Charter damages for wrongful non-disclosure is an application of step (3) of the Ward framework, a legal test derived from the Supreme Court of Canada’s decision in Vancouver (City) v. Ward, which sets out the methodology for assessing claims for Charter damages.

The level of fault required for prosecutorial liability for Charter damages is designed to account for good governance concerns that may otherwise bar an award of Charter damages. Unless the state can present other countervailing considerations that would warrant not awarding Charter damages, liability attaches, and the court proceeds to assess the quantum (amount) of Charter damages.

However, please note that this is a complex area of law, and the success of your claim for Charter damages would depend on a number of factors, including the specifics of your case. Therefore, it is highly recommended to consult with a lawyer experienced in constitutional and criminal law to fully explore your options and potential remedies.

When initiating a lawsuit, it is indeed possible to sue not only for Charter damages but also for other types of damages or claims under private law. In fact, it is relatively common for claimants to combine a claim for Charter damages with an ordinary private law tort claim, which could seek general and special damages.

This is possible because Charter damages are considered “a distinct and autonomous remedy,” separate from private law tort claims. These damages are characterized as “public law” claims, recognizing a violation of a Charter right as a distinct harm that merits compensation independent of any other cause of action under private law.

Importantly, it should be noted that there is no legal requirement necessitating a plaintiff to exhaust their private law remedies before initiating a claim for Charter damages. This allows you to seek both types of remedies concurrently, thus providing a more comprehensive approach to legal recourse.

When both Charter and tort claims are presented together, the analysis usually begins with the private law tort claim. This is because the context and details of the tort claim can often add valuable insights that can aid in the Section 24(1) Charter damages analysis.

In the case of class action proceedings, Charter damage claims can also be asserted in conjunction with private law causes of action. This allows for a broad and robust legal strategy in these particularly complex cases.

Therefore, suing for Charter damages does not exclude the possibility of also suing for other types of damages or causes of action under private law. When building your case, it can be beneficial to consider all potential avenues for recourse, including both Charter damages and private law tort claims. However, the specifics of each case may vary, so it’s advisable to consult with an experienced legal professional to understand the best course of action for your unique circumstances.

Based on legal precedents in Canadian law, it is not generally possible to sue for Charter damages if you are disciplined by your regulatory body. Two key cases, Madadi v. British Columbia (“Madadi”) and Ouellette v. Law Society of Alberta, (“Ouellette”) clarify this stance.

In the case of Madadi, complaints were made against Mr. Madadi to the College of Teachers in 2001 and he was disciplined in 2011. The decision was set aside on appeal in 2014. Madadi subsequently claimed damages for breach of section 7 of the Charter. However, the court struck the claim for damages. They reasoned that section 7 of the Charter, which primarily pertains to life, liberty, and security of the person, does not include the right to practice a profession. Therefore, the claim was bound to fail as it was not within the scope of Section 7’s protection.

Similarly, in Ouellette, Mr. Ouellette, who was disbarred in 2016, brought an action alleging breaches of his Charter rights and malicious, fraudulent, and deceitful actions by the Law Society. The court, in this case, struck his claim for Charter damages. It concluded that neither Section 7 (which, as explained earlier, pertains to life, liberty, and security of the person) nor Section 11 (which deals with rights in relation to legal proceedings) applied in the circumstances. This was because the disciplinary proceedings did not involve penal consequences and consequently, section 11 did not apply.

Moreover, even if a Charter right had been engaged, the court suggested that damages would not be an appropriate remedy under section 24 of the Charter, as referenced in the decision in Ernst v. Alberta Energy Regulator. Section 24 provides remedies when rights or freedoms, as guaranteed by the Charter, are infringed or denied.

Additionally, the court held that the Law Society did not owe a private duty of care to an individual member of the profession in negligence in connection with a discipline hearing. This is because such a duty would be contrary to the Law Society’s primary obligation of regulating the profession as a whole. The court noted that if every time a disciplined member disagreed with a decision it could give rise to a new claim for damages, the Law Society would not be able to effectively regulate the profession.

Therefore, the likelihood of succeeding in a claim for Charter damages, based on disciplinary action from a professional regulatory body, appears to be very low, given these legal precedents. If you find yourself in such a situation, it is advisable to seek legal counsel to understand the best course of action.

Yes, there is a limitation period when suing for Charter damages. Charter damages, akin to private law damage claims, are subjected to the same limitations rules and periods. This means that a person seeking Charter damages, a personal remedy for a violation of constitutional rights, must adhere to the same timeframes as established by law for other private damage claims.

The constitutional nature of a Charter claim does not, in itself, enact a special limitation period, unless it is explicitly provided by applicable legislation. The rules of limitation periods apply because Charter damages are invoked by a party alleging an interference with their own legal interests or constitutional rights, essentially making it a personal claim, much like private law damage claims.

If Charter claims are brought forward in conjunction with tort claims, they will follow the same limitation periods as the tort claims. It is worth noting that limitation periods can vary depending on the jurisdiction and the nature of the legal claim, so it is crucial to consult with a legal professional to fully understand the time constraints related to filing a claim for Charter damages.

It’s important to keep in mind that exceeding the limitation period may result in the claim being barred regardless of its merit. Therefore, to protect your legal rights, it is advised to seek legal advice as soon as possible when considering a claim for Charter damages.

Climate change litigation, while relatively nascent in Canada, is gaining momentum both domestically and internationally. This is largely in response to the increasing severity and frequency of wildfires, extreme weather events, and other visible effects of climate change. The public conversation is now more centred around the responsibilities of individuals and the state in facing this climate crisis.

While the Supreme Court of Canada has recognized that climate change is real, human-caused, and presents a “grave threat to humanity’s future” (References re Greenhouse Gas Pollution Pricing Act), the legal boundaries concerning climate change, including duties, liabilities, rights, and remedies, have yet to be clearly established in Canada.

An instructive case on the subject is Ernst v Alberta Energy Regulator. Although it does not directly relate to climate change, it is indicative of how the Canadian courts may handle such claims. The plaintiff in this case pursued an energy corporation, a conservation board (AER), and the Province of Alberta for negligence, failure to protect the water supply, and violation of her right to freedom of expression under section 2(b) of the Charter. She also sought damages under section 24(b) of the Charter, which provides a broad remedial provision.

However, the court decided that it was impractical and legally unsound to force the board to balance the interests of specific individuals while managing the overall public interest. The court further reasoned that awarding Charter damages would have drained the board’s resources and potentially warped the appeal and review process.

Going forward, we anticipate climate change litigation in Canada to continue evolving. Although development might be uneven in the short term, we expect a gradual shift towards enforcing global climate obligations and considering climate-based individual rights. The outcomes of future litigation will likely be uncertain, and the legal arguments are expected to become more innovative. These trials should provide clearer guidance for future climate change litigation in Canada.

At this time, while you may certainly attempt to sue for Charter damages for the climate change crisis, the path to a successful lawsuit is unclear, and the result may well be uncertain due to the evolving nature of the law in this area. It is recommended that you consult with a legal professional who is knowledgeable in this field for more precise advice tailored to your specific circumstances.

The potential for suing for Charter damages in situations like this is a complex and nuanced area of law. In the case of N. (J.) v. Durham (Regional Municipality) Police Service, the plaintiff encountered a similar situation. She had a withdrawn criminal charge that appeared in a vulnerable persons search result, which hampered her ability to find work as a social worker.

In that case, the Ontario Superior Court found that the inclusion of the withdrawn charge in the search results was an administrative act, and did not initially infringe upon the plaintiff’s Section 7 Charter rights. However, the court also found that the lack of an effective mechanism to review the plaintiff’s request to have the withdrawn charge removed did infringe on these rights.

Section 7 of the Charter guarantees everyone the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. In this case, the court interpreted the inability to get a job due to the withdrawn charge showing up on a background check as a deprivation of the plaintiff’s liberty and security, not in accordance with the principles of fundamental justice.

Therefore, the court determined that a remedy should be fashioned that was both appropriate and just, including the ability to direct that future certificates not include the withdrawn charges. The court also examined the circumstances leading to the charges and ordered that future certificates should not include the withdrawn charges.

However, it’s crucial to note that this decision was overturned by the Ontario Court of Appeal. The appeal court stated that the application should have been brought as a judicial review application to the Divisional Court, rather than as a lawsuit for damages in the Superior Court. The Court of Appeal did not rule on the actual merits of the application.

Given the intricacy of these legal matters, your situation might be different and may necessitate a different approach. It’s crucial to seek the counsel of a qualified lawyer to understand your rights and potential legal strategies in detail.

Talk to a Charter Damages Lawyer