The New Equality Paradigm: The Impact of Charter Equality Principles on Private Law Decisions

Abstract:     
While the Supreme Court of Canada made clear in the Dolphin Delivery case that the Charter of Rights and Freedoms has no direct application to private litigation, it did allow room for Charter influence on private law by asserting that courts should apply and develop the principles of the common law in a manner consistent with Charter values. In so far as equality is concerned, this opening expanded further with the Court’s interpretation of section 15 of the Charter in Andrews. The tenuous division between public and private that the Court sought to maintain in Dolphin Delivery was rendered still more fragile by its embrace of substantive rather than formal equality in Andrews. In this paper, I illustrate this point by examining the ways in which Charter equality principles, at least with respect to gender equality, have been insinuated into recent development of tort law doctrines relating to consent, limitation periods, and the quantification of damages. The conclusion to be drawn is that the development of the common law in a manner consistent with substantive equality has become a much more significant process than the Supreme Court perhaps originally imagined. Of course the sensitivity to historic and contemporary inequalities that is becoming increasingly evident in tort decisions is not solely related to the Charter. Other factors must also be taken into account including the influence of feminist and other critical legal scholars on the theoretical underpinnings of tort law, changes in the make up of the judiciary as well as innovations in judicial education, and the influence of broader social forces on judges and lawyers. Nevertheless, there is evidence of a ripple effect whereby Charter values exert an influence beyond constitutional litigation, and this effect ought not to be overlooked by equality seekers in evaluating the utility of such litigation for promoting social change.

Number of Pages in PDF File: 14

Keywords: Constitutional Interpretation, Equality, Tort Law, Public and Private

Accepted Paper Series