Re-thinking Whitbread v. Walley: Liberal Justice and the Judicial Review of Damages Caps Under Section 7 of the Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms, consistutional law, personal injury, damages, tort, personal autonomy, distributive claims, bodily claims
This paper advances a theoretically-driven reconstruction of s.7 Charter doctrine, which currently precludes protection for personal injury damages. Proceeding from a standpoint built on deontological strains of tort theory, the author dissects the reasoning in Whitbread v. Walley, the governing authority on the applicability of s. 7 to legislated damages caps. In three stages, the author argues that in the contemporary context, theoretical and doctrinal support for Whitbread is weak. First, when tort rights are theorized non-instrumentally, rights to personal injury damages fall squarely within the irreducible sphere of personal autonomy now protected by s. 7. Second, recent developments, both in civil recourse theory and in Charter doctrine, suggest thatrights topersonal injury damages can no longer be treated as beyond the realm of constitutionaljurisprudence. Third, and most importantly, the specter of Lochner v. New York can no longer be invoked tojustify the wholesale exclusion of tort rights from s. 7protection. Discrete heads of damage can be separated into two categories: those based entirely on rights to bodily integrity (bodily claims), and those based at leastpartly on distributive entitlements (distributive claims). The author argues that constitutional doctrine can protect morally legitimate bodily claims by protecting some heads of damage (nonpecuniary damage and cost of care), and by leaving heads of damage based on morally imperfect distributive claims (past income loss and loss of earning capacity) to the policy discretion of the state. The article concludes with a short discussion of s. 1 issues, and of some possible broader applications of the bodily - distributive claim framework.
Jeremy Taylor, "Re-thinking Whitbread v. Walley: Liberal Justice and the Judicial Review of Damages Caps Under Section 7 of the Charter of Rights and Freedoms" (2006) 29:1 Dal LJ 199.