Ward is the first case in the Supreme Court of Canada where the lower courts had dismissed the tort claim but allowed damages under the Charter, thus transforming Charter damages into a “consolation prize” for plaintiffs whose claims, as a result of the law, the evidence or the pleadings, did not meet the applicable tort law standard. While the unanimous decision of the Supreme Court appears to uphold this approach, a closer reading of the decision indicates that the Court did not stray very far from basic tort law principles. The lower court decisions appear to adopt a “strict liability” approach to certain Charter claims, but the Supreme Court’s reasons indicate that something more than mere causation will have to be proven before Charter damages will be considered “appropriate and just”. A close reading of the decision indicates that the Supreme Court would have likely come to the same conclusion had the issue before it been one of damages for negligence rather than under the Charter. Accordingly, Ward will not result in a radical expansion of governmental liability beyond that already provided by the law of tort.
Charney, Robert E. and Hunter, Josh.
"Tort Lite?: Vancouver (City) v. War and the Availability of Damages for Charter Infringements."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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