Charter Damages: Private Law in the Unique Public Law Remedy
Adourian, Peter Krikor
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In 2010, the Supreme Court of Canadas decision in Vancouver (City) v Ward created a framework for a Charter damages claim. In two subsequent decisions, the Court deviated from Ward by relying extensively on private law principles to award public law damages. In doing so, the Court has created increasingly troubling results. I review the history of Charter damages and the Courts relevant Charter and private law damages jurisprudence, with a particular focus on factors like fault thresholds, immunities, and direct liability of government. I find that Ward provides an appropriate and just remedy in accordance with a purposive approach to Charter remedies, the interest-balancing approach in the Charter text and jurisprudence, and the well-established objectives of Charter remedies. Understanding Charter damages in this way limits the role for private law principles. The future development of Charter damages doctrine ought to be guided by Charter principles first.