Damages available for good-faith Charter breach

Vancouver (City) v. Ward, 2010 SCC 27, released yesterday, sets out the test for when damages are available for a breach of Charter rights where such breach is made in good faith. The potential implications for G20 claims are obvious.
 
The Court holds that the language of s. 24(1) is broad enough to include the remedy of constitutional damages for breach of a claimant's Charter rights if such remedy is found to be appropriate and just in the circumstances of a particular case. 

The first step in the inquiry is to establish that a Charter right has been breached; the second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfil one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches.

Once the claimant has established that damages are functionally justified, the state has the opportunity to demonstrate, at the third step, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust. 

Countervailing considerations include the existence of alternative remedies.  Claimants need not show that they have exhausted all other recourse.  Rather, it is for the state to show that other remedies including private law remedies or another Charter remedy are available in the particular case that will sufficiently address the Charter breach.  Concern for effective governance may also negate the appropriateness of s. 24(1) damages.  In some situations, the state may establish that an award of Charter damages would interfere with good governance such that damages should not be awarded unless the state conduct meets a minimum threshold of gravity.

If the state fails to negate that the award is "appropriate and just", the final step is to assess the quantum of the damages.  To be "appropriate and just", an award of damages must represent a meaningful response to the seriousness of the breach and the objectives of s. 24(1) damages. 

Where the objective of compensation is engaged, the concern is to restore the claimant to the position he or she would have been in had the breach not been committed. 

With the objectives of vindication and deterrence, the appropriate determination is an exercise in rationality and proportionality.  Generally, the more egregious the breach and the more serious the repercussions on the claimant, the higher the award for vindication or deterrence will be.  In the end, s. 24(1) damages must be fair to both the claimant and the state.  In considering what is fair to both, a court may take into account the public interest in good governance, the danger of deterring governments from undertaking beneficial new policies and programs, and the need to avoid diverting large sums of funds from public programs to private interests. 

Damages under s. 24(1) should also not duplicate damages awarded under private law causes of action, such as tort, where compensation of personal loss is at issue.
 
The Court writes:

[4]    I conclude that damages may be awarded for Charter breach under s. 24(1) where appropriate and just.  The first step in the inquiry is to establish that a Charter right has been breached.  The second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfil one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches.  At the third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust.  The final step is to assess the quantum of the damages.