Remedies in Canadian Law

Introduction

Remedies are the means by which courts enforce legal rights and provide relief for legal wrongs. In Canadian law, remedies span a broad spectrum from common law damages and equitable relief to constitutional remedies under the Canadian Charter of Rights and Freedoms and the Constitution Act, 1982. The law of remedies reflects the fundamental principle that for every right there must be an effective remedy (ubi jus, ibi remedium).

Constitutional Remedies

Section 24(1) of the Charter

Section 24(1) provides:

“Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

This provision confers a broad, remedial discretion on courts to craft remedies tailored to the particular violation. The remedy must be appropriate and just, meaning it must:

• Effectively vindicate the right
• Be proportionate to the nature and severity of the violation
• Be fair to both the applicant and society
• Not exceed the jurisdiction of the court

Section 24(1) remedies include:

• Exclusion of evidence under section 24(2) (the dominant remedy in criminal cases)
• Stays of proceedings (for serious state misconduct affecting trial fairness)
• Damages against the state for Charter violations (Ward v. Vancouver, [2010] 2 SCR 28)
• Declarations that Charter rights have been violated
• Injunctions to prevent ongoing violations

Section 52(1) of the Constitution Act, 1982

Section 52(1) provides:

“The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”

This provision empowers courts to strike down unconstitutional legislation. Unlike section 24(1), which remedies individual violations, section 52(1) addresses the validity of the law itself. The remedy is a declaration of invalidity, which renders the law void from the date of the declaration (unless the court orders otherwise).

Suspended Declarations of Invalidity

Canadian courts may issue suspended declarations of invalidity, postponing the effect of a declaration to give the legislature time to enact a constitutional replacement. The leading case is Reference re Manitoba Language Rights, [1985] 1 SCR 721, where the Court suspended the declaration to avoid a legal vacuum.

Suspended declarations are appropriate where:

• The immediate striking down of the law would cause legal chaos or endanger public safety
• The legislature has a legitimate interest in crafting a replacement (Schachter v. Canada, [1992] 2 SCR 679)
• The violation does not involve the most serious constitutional harms

However, suspended declarations should not be used where continued operation of the unconstitutional law would cause irreparable harm to rights. In R v. Morgentaler, [1988] 1 SCR 30, the Court declined to suspend the declaration striking down Canada’s abortion law.

Damages

General Principles

Canadian law recognizes several categories of damages:

• Compensatory damages: Restore the plaintiff to the position they would have been in but for the wrong
• Aggravated damages: Compensate for intangible injuries such as humiliation, distress, or mental anguish
• Punitive (exemplary) damages: Punish egregious conduct and deter future wrongdoing
• Nominal damages: Vindicate rights where no substantial loss is shown
• Special damages: Quantifiable pecuniary losses

Punitive Damages

The Supreme Court addressed punitive damages in Whiten v. Pilot Insurance Co., [2002] 1 SCR 595. The Court held that punitive damages are exceptional and should be awarded only where the defendant’s conduct is highly reprehensible, malicious, oppressive, or high-handed and where compensatory damages are insufficient to achieve retribution, deterrence, and denunciation.

The Court identified several rationales for punitive damages:

• Retribution: Punishing the wrongdoer
• Deterrence: Both specific (preventing repetition) and general (discouraging similar conduct)
• Denunciation: Expressing society’s condemnation

In Ward v. Vancouver, the Court extended punitive damages to Charter claims, holding that the conduct of state actors may warrant punitive damages where it is deliberately wrongful or displays reckless indifference to Charter rights.

Damages for Charter Breaches

In Ward, the Court held that damages under section 24(1) serve three functions:

1. Compensation: Indemnifying the victim for losses suffered
2. Vindication: Affirming the importance of Charter rights
3. Deterrence: Discouraging future Charter violations

The Court established a presumption that damages should be available for Charter breaches where the applicant has suffered a loss and no other remedy would adequately vindicate the right.

Injunctions

The injunction is an equitable remedy compelling a party to do or refrain from doing a particular act. The test for an interlocutory injunction was established in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311:

1. Serious question to be tried: The applicant must demonstrate a serious issue going to the merits (a low threshold, particularly in Charter cases)
2. Irreparable harm: The applicant must show that they would suffer harm that cannot be adequately compensated by damages
3. Balance of convenience: The court must assess which party would suffer greater harm from granting or refusing the injunction

In cases involving government action, the public interest is a critical factor in the balance of convenience.

Mandatory injunctions (requiring positive action) attract a higher threshold than prohibitory injunctions (restraining action). Mareva injunctions (freezing assets) and Anton Piller orders (search and seizure) are available under specific conditions.

Unjust Enrichment

Unjust enrichment is a restitutionary remedy recognized in Canadian law through Pettkus v. Becker, [1980] 2 SCR 834, and Kerr v. Baranow, [2011] 1 SCR 269. The doctrine requires three elements:

1. Enrichment of the defendant
2. Corresponding deprivation of the plaintiff
3. Absence of juristic reason for the enrichment

The absence of juristic reason is assessed by reference to established categories (contract, gift, legal obligation) and through a flexible balancing of the parties’ reasonable expectations and public policy considerations.

Where unjust enrichment is established, the remedy is restitution measured either by:

• Quantum meruit (the value of services provided)
• Tracing (recovery of specific property)

In Kerr, the Court recognized joint family venture as a basis for sharing property between unmarried partners, applying unjust enrichment principles.

Declarations

A declaration is a judicial statement of the legal rights or obligations of the parties. It is a discretionary, remedial order that is binding but does not carry coercive enforcement powers. Declarations are particularly useful in:

• Constitutional litigation: Declaring legislation invalid under section 52(1)
• Public law: Determining the legality of government action
• Private law: Clarifying rights under contracts, trusts, or property

Conclusion

Canadian law offers a rich and flexible remedial framework spanning common law, equitable, and constitutional remedies. Courts exercise broad discretion to craft remedies that are proportionate, effective, and just, recognizing that the choice of remedy must be tailored to the nature of the right infringed and the circumstances of the case. The availability of suspended declarations of invalidity and the expanded scope of damages for Charter breaches reflect Canadian law’s commitment to providing meaningful remedies while respecting the institutional roles of courts and legislatures.