Documentation:Torts/Charter values

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TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index
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Charter values
The concept of Charter values derives from judicial interpretation of the Canadian Charter of Rights and Freedoms ("the Charter").[1] Charter values may be understood as "general principles which are manifested in specific provisions of the Charter."[2] They underpin and give meaning to the rights and freedoms enumerated in the Charter.[3] Examples of Charter values include liberty, human dignity, equality, autonomy, and the enhancement of democracy.[4] While some scholars argue that the judicial recognition of Charter values is amorphous and policy-laden,[5] others contend that Charter values are unobjectionably part of Canada's legal landscape and jurisprudence.[6]

Charter rights, Charter values, and the common law

The Charter is a constitutional bill of rights that governs the 'vertical' legal relationship between the state and its citizens. Its list of rights set out "specific constitutional duties which the state owes to its citizens."[7] Charter rights do not apply to 'horizontal' legal relationships between persons that are the domain of private law. Nevertheless, the Supreme Court recognizes that, in appropriate cases, the values underlying the Charter can and should inform the development and application of common law principles:[8]

Private parties owe each other no constitutional duties and cannot found their cause of action upon a Charter right. The party challenging the common law cannot allege that the common law violates a Charter right because, quite simply, Charter rights do not exist in the absence of state action. The most that the private litigant can do is argue that the common law is inconsistent with Charter values. It is very important to draw this distinction between Charter rights and Charter values. Care must be taken not to expand the application of the Charter beyond that established by s. 32(1), either by creating new causes of action, or by subjecting all court orders to Charter scrutiny. Therefore, in the context of civil litigation involving only private parties, the Charter will "apply" to the common law only to the extent that the common law is found to be inconsistent with Charter values.

While complex legal developments are best left to the expertise of legislators, courts are prepared to adapt the common law incrementally to keep apace with social change.[9] Even still, the courts are wary of any proposed Charter values-consistent development of the common law that might disturb the balance between legislative and judicial action.[10][11]

Charter Values
Copy of the Canadian Charter of Rights and Freedoms.
In this Asper Centre episode of Charter: A Course, the hosts discuss Charter values, what they mean, and the judicial contexts in which they arise.[12]

In evaluating how the common law should be balanced with Charter values, the Supreme Court of Canada has rejected the idea of employing the "Oakes test" framework that is used to evaluate government infringements on Charter rights under section 1 of the Charter.[13] Instead, a more flexible approach is required. A court may weigh Charter values against the principles underlying the common law and use Charter values as a guideline to any modifications to the common law that may be needed.[13]

Charter values influencing tort law

Freedom of expression

In Hill v. Church of Scientology of Toronto, the plaintiff, a Crown Attorney, brought an action for libel against the defendants who had made untrue claims about the plaintiff in a press conference.[14] The defendants argued that the common law of defamation had failed to keep up with social change because it protected plaintiffs at the expense of defendants' freedom of expression.[15]

New York Times Co. v. Sullivan
This video from Quimbee summarizes the American case of New York Times Co. v. Sullivan.[16]

The defendants had proposed that Canadian common law should adopt an "actual malice" rule from the American case New York Times v. Sullivan, to constrain the scope of the tort of defamation.[17] In Sullivan, the United States Supreme Court considered that the traditional common law of defamation violated the constitutional right to freedom of speech in the United States.[18] The Court modified the tort's elements by shifting the onus onto the plaintiff to show that, at the time of the defamatory statements, the defendant knew that its statements were false or was reckless as to whether they were true or false.[18]

The Supreme Court of Canada did not endorse the Sullivan approach. It found in Hill that the existing common law of defamation complies with Charter values.[19] Freedom of speech must be balanced against the need to protect the reputation of the individual.[20] While reputation is not expressly mentioned in the Charter, it is closely tied to personal dignity and the right to privacy, both of which are values underlying Charter provisions.[21] The Court ultimately rejected the "actual malice" rule, concluding that the common law of defamation is not disproportionately restrictive, especially considering that the defences of fair comment and qualified privilege are available in appropriate circumstances.[19]

A headshot of Joel Bakan, professor at the Peter A. Allard School of Law.
Peter A. Allard School of Law professor, Joel Bakan.
Allard professor Joel Bakan and co-counsel Sujit Choudry sued Twitter after the social media company refused to run promotional tweets for Bakan's film. Bakan and Choudry argued that Twitter's ad policies encroached on the Charter value of freedom of expression.[22]

In the subsequent case of Grant v. Torstar Corp.,[23] the Supreme Court developed a new defence based on responsible communication in the public interest in order to improve balance in the law of defamation with freedom of expression.

Privacy

Jones v. Tsige is another example of where a court developed the common law in light of Charter values.[24] The defendant had looked into the plaintiff's banking records without permission at least 174 times over a four-year period.[25] The plaintiff sought damages for invasion of privacy.[26]

Although the trial court had dismissed the plaintiff's claim by summary judgment on the grounds that there was no recognized tort of breach of privacy, the Ontario Court of Appeal found otherwise. Drawing on the case of R. v. Tessling, the Court stated that Charter jurisprudence had already recognized distinct privacy interests, including informational privacy.[27] The Court also referenced Hill v. Church of Scientology of Toronto, where the Supreme Court of Canada observed that the right to privacy had been accorded constitutional protection.[28] Furthermore, the Supreme Court of Canada understands section 8 of the Charter, which guards against unreasonable search and seizure, to protect a right to privacy.[29]

Considering that case law had already recognized privacy as an underlying Charter value and that the common law should be developed consistently with the Charter, the Ontario Court of Appeal considered it appropriate to recognize a tort of invasion of privacy in the context of intrusion upon seclusion.[30]

Criticisms of Charter values

While Charter values reasoning has gained traction in Canadian jurisprudence, it has also come under intensifying criticism from lawyers and judges. Because Charter values are not explicitly found in the Charter itself, courts and administrative decision-makers are left to identify and define what they are, posing the risk that these values may be shaped by personal views.[31] As such, some have described Charter values as amorphous and ill-defined, even suggesting that the very concept of Charter values should be rejected.[32]

It has been suggested that the rise of Charter values amounts to "illegitimate constitutional amendment."[31] This is because while certain underlying values do inspire the provisions of the Charter, the Charter only guarantees the rights and freedoms actually contained in its text.[31]

Some argue that Charter values present a threat to the rule of law, which refers to the idea that any exercise of power must have a source in law, not simply in power.[31] The source of law for Charter values may be questioned due their amorphousness and the fact that they are not expressly spelled out in the Charter.[31]

Discussion questions

  • Why do Charter rights not apply directly to tort disputes between parties?
  • What are “Charter values”? How should Charter values influence our understanding of the common law?
  • Why should courts be cautious regarding the extent to which they develop the common law? Should such judicial caution extend to the adoption of Charter values-reasoning in common law interpretation?
  • The text of the Canadian Charter of Rights and Freedoms[1] does not mention “privacy.” How is privacy nevertheless considered to be a value protected by the Charter?
  • Given how the Ontario Court of Appeal considered the Charter value of privacy weighed in favour of recognising a new tort of intrusion upon seclusion, what other Charter values might weigh in favour of recognising other new torts?


  1. ↑ 1.0 1.1 The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11.
  2. ↑ Daly, Paul (6 October 2023). "The Doré Duty : Fundamental Rights in Public Administration". Canadian Bar Review (2): 299.
  3. ↑ Loyola High School v. Quebec (Attorney General), 2015 SCC 12 at para 36.
  4. ↑ Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 at para 88.
  5. ↑ Mancini, Mark (25 January 2024). "What exactly is a Charter value?: Mark Mancini for Inside Policy". The MacDonald-Laurier Institute.
  6. ↑ Daly, Paul (6 October 2023). "The Doré Duty: Fundamental Rights in Public Administration". 101. 101 (2): 302.
  7. ↑ Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC) (§24.1.1) at para 94.
  8. ↑ Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC) (§24.1.1) at para 95.
  9. ↑ R. v. Mann, 2004 SCC 52 at para 17.
  10. ↑ R. v. Golden, 2001 SCC 83 at para 86.
  11. ↑ Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at para 61.
  12. ↑ Charter: A Course (27 October 2023). "S3E3: Charter Values". PodBean.
  13. ↑ 13.0 13.1 Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC) (§24.1.1) at para 97.
  14. ↑ Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC) (§24.1.1) at paras 1–2.
  15. ↑ Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC) (§24.1.1) at para 63.
  16. ↑ Quimbee (12 July 2017). "New York Times Co. v. Sullivan Summary". Youtube.
  17. ↑ New York Times Co. v. Sullivan, 376 US 254 (1964).
  18. ↑ 18.0 18.1 Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC) (§24.1.1) at para 122 citing New York Times Co. v. Sullivan, 376 US 254 (1964).
  19. ↑ 19.0 19.1 Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC) (§24.1.1) at para 137.
  20. ↑ Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC) (§24.1.1) at para 107.
  21. ↑ Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC) (§24.1.1) at paras 120-121.
  22. ↑ Wilbur, Tim (10 January 2023). "Why this UBC prof sued Twitter for refusing to run a tweet promoting his documentary". Canadian Lawyer Magazine.
  23. ↑ Grant v. Torstar Corp., 2009 SCC 61 (§5.1.4).
  24. ↑ Jones v. Tsige, 2012 ONCA 32 (§24.1.2).
  25. ↑ Jones v. Tsige, 2012 ONCA 32 (§24.1.2) at para 2.
  26. ↑ Jones v. Tsige, 2012 ONCA 32 (§24.1.2) at para 7.
  27. ↑ Jones v. Tsige, 2012 ONCA 32 (§24.1.2) at para 41.
  28. ↑ Jones v. Tsige, 2012 ONCA 32 (§24.1.2) at para 43.
  29. ↑ Jones v. Tsige, 2012 ONCA 32 (§24.1.2) at para 39.
  30. ↑ Jones v. Tsige, 2012 ONCA 32 (§24.1.2) at para 46.
  31. ↑ 31.0 31.1 31.2 31.3 31.4 Bird, Brian (9 November 2018). "The Charter of Rights and Freedoms — and values?". Policy Options.
  32. ↑ Horner, Matthew (2014). "Charter Values: The Uncanny Valley of Canadian Constitutionalism". The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference. 67: 362.
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