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ARTICLE · 14 DECEMBER 2011

Conflicting Decisions Create Confusion Over Charter Damages

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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.

CanadaLitigation, Mediation & Arbitration
Stuart Zacharias
Stuart Zacharias
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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 expected.

In Ferri v. Ontario, [2007] 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, [2007] O.J. No. 2695, where the court reversed a trial judgment awarding Charter damages in the absence of any finding of bad faith or wilful conduct.

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