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Torts - Categories Never Closed

. Canada v. Whaling

In Canada v. Whaling (Fed CA, 2022) the Federal Court of Appeal comments on the changeable nature of tort, including charter torts:
[24] Returning to the task at hand, HMQ’s categorical positions call to mind the Supreme Court’s comments in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45 at para. 21 [Imperial Tobacco]:
The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. Before Donoghue v. Stevenson, 1932 CanLII 536 (FOREP), [1932] A.C. 562 (H.L.) introduced a general duty of care to one’s neighbour premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer. Before Hedley Byrne & Co. v. Heller & Partners, Ltd., [1963] 2 All E.R. 575 (H.L.), a tort action for negligent misstatement would have been regarded as incapable of success. The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in Donoghue v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim.
[25] These comments were made in the context of a motion to strike pleadings for failing to disclose a cause of action, but the principle articulated by the Court applies in this context as well. The application of the principles established in Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28 [Ward] to the facts alleged in the statements of claim is novel. The plaintiffs’ claims should not fail on that ground alone. Those seeking to extend the boundaries of the Ward principles are not entitled to succeed but they are entitled to try.

[26] It may well be that liability for Charter damages cannot be assessed in the absence of misconduct by one or more state actors whose "“fault”" can be attributed to Canada "“writ large”", but the Supreme Court’s statement in Ward perhaps leaves that possibility open:
…an action for public law damages “is not a private law action in the nature of a tort claim for which the state is vicariously liable but [a distinct] public law action directly against the state for which the state is primarily liable”. In accordance with s. 32 of the Charter, this is equally so in the Canadian constitutional context.

Ward at para. 22.
[27] In fairness, Ward also leaves open the possibility that:
…considerations that are engaged when awarding private law damages against state actors may be relevant when awarding public law damages directly against the state. Such considerations may be appropriately kept in mind.

Ward at para. 22.
[28] But this does not necessarily mean that Charter damages are only available in circumstances in which private law damages would be available under the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, which explicitly deals with vicarious liability and requires both an identifiable state actor and an identifiable fault.


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