From: Paul Daly
<paul.daly@uottawa.ca>
Sent: Wednesday
2 October 2024 22:34
To: Lucas
Clover Alcolea; Norman Siebrasse; Jason W Neyers
Cc: obligations
Subject: Re: The
Nadir of Common Law?
Even
in public law (my area, most would say) old cases remain relevant some of the
time. The prerogative cases from the 17th century are still good law.
Parliamentary privilege cannot be understood without reference to fairly
ancient cases. And one should not forget about cases such as Entick v
Carrington, an action in trespass that nonetheless establishes the foundational
principle that officials cannot exercise coercive authority without statutory
basis.
Indeed,
I cited several 19th century cases on certiorari to the SCC only last
year! https://www.scc-csc.ca/WebDocuments-DocumentsWeb/40348/FM030_Intervener_Canadian-Telecommunications-Association.pdf
That
said, I think most Canadian public law practitioners would not be inclined to
look that far back. The SCC did not cite any of the cases I cited in its
decision in the case I mentioned https://canlii.ca/t/k3gs5 And
I think Lucas has offered a good institutional explanation that gives context
to the Chief Justice's remark.
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From: Lucas Clover Alcolea
<lucas.cloveralcolea@otago.ac.nz>
Sent: Wednesday, October 2, 2024 4:53:53 PM
To: Paul Daly <paul.daly@uottawa.ca>;
Norman Siebrasse <norman.siebrasse@gmail.com>;
Jason W Neyers <jneyers@uwo.ca>
Cc: obligations <obligations@uwo.ca>
Subject: RE: ODG:The Nadir of Common Law?
Attention
: courriel externe | external email
If one was going to defend the CJC, which I won’t even
attempt to do, I suppose one could say that in public law, particularly
following the charter, much has changed in the last few decades, let alone the
last century. It’s also undeniable that much of that has been driven by what we
might, charitably, call the SCC’s ‘creativity’, whether that’s a good or a bad
thing is, I suppose, another matter. On a more general level, it does reveal
much about what the SCC perceives its role to be, in that vein I recall reading
an interesting article by Amitpal
Singh noting that “The Court has long since shed the carapace of
error-correction and morphed into a jurisprudential shepherd. As our apex
court, the Supreme Court of Canada is clearly a law-making court, one that
renovates entire doctrinal areas and crafts novel legal frameworks.” In that
context the statements are entirely fitting, although, of course, one can
disagree that that is an appropriate role for a court, even an apex court, to
take on. However, even in private law, it’s clear that the Canadian approach is
much more laissez-faire, imposing remedial discretionary trusts on an ad hoc
basis, choosing whichever remedy appears most appropriate regardless of the
nature of the right at issue etc etc… So, in its context, the statement is
merely saying ‘the quiet part loud’.
To be clear, I don’t agree with this view of apex
courts or precedent, but its entirely in line with what the SCC has been doing
now, even in private law, for decades.
All the best,
Lucas
|
|
Dr Lucas
Clover-Alcolea |
From: Paul Daly <paul.daly@uottawa.ca>
Sent: Thursday, October 3, 2024 9:45 AM
To: Norman Siebrasse <norman.siebrasse@gmail.com>;
Jason W Neyers <jneyers@uwo.ca>
Cc: obligations <obligations@uwo.ca>
Subject: RE: ODG:The Nadir of Common Law?
I will see
Norm and raise him Tarleton v. M’Gawley (1793), Peake 270, 170 E.R. 153, cited in A.I.
Enterprises Ltd. v. Bram Enterprises Ltd., 2014
SCC 12 as a foundational case in the tort of unlawful interference. Of
course, I only remember this because the facts of the earlier case involved
shooting cannons at a canoe.
More
seriously, I am sure there are other, older examples too that speak to Matthew
Hoyle’s point about the importance of venerable precedent in understanding
contemporary private law.
From: Norman Siebrasse <norman.siebrasse@gmail.com>
Sent: Wednesday, October 2, 2024 4:17 PM
To: Jason W Neyers <jneyers@uwo.ca>
Cc: obligations <obligations@uwo.ca>
Subject: Re: ODG:The Nadir of Common Law?
Attention : courriel externe | external email
In Monsanto Canada Inc.
v. Schmeiser 2004
SCC 34 [102] the SCC cited its own 1886 decision in Collette v.
Lasnier (1886), 13 S.C.R. 563, as the primary authority for the correct
approach to an accounting of profits.
On Wed,
Oct 2, 2024 at 5:10 PM Jason W Neyers <jneyers@uwo.ca>
wrote:
Dear Colleagues,
The Chief Justice of Canada has recently been reported as saying, in the context of refusing to translate pre-1970 judgments into both official languages, that the legal value of old Supreme Court decisions is “minute" and that “no one today [would] refer to a precedent from 1892 to support their case.”
I guess I better rethink how I teach and approach the common law!
As one commentator responded:
"These statements are astonishing. In a common law system such as ours, judicial decisions are legally authoritative unless explicitly overturned. In accordance with the rule of precedent (stare decisis), courts must apply the rules of law established in previous decisions when similar situations arise. The rule of precedent lends stability to the law, allowing individuals to plan their activities so that they stay within the applicable rules.
As such, unless they have been explicitly set aside, decisions of the highest court from before 1970 still have precedential value. They are part of Canada’s normative landscape. Lower courts are required to apply the rules of law established by the Supreme Court, including those handed down prior to 1970. Similarly, the Supreme Court must follow its own precedents, unless it determines there is a “compelling reason” to depart from them.
In fact, many Supreme Court decisions of that era are still taught in Canadian law schools. Moreover, lawyers still refer to pre-1970 precedents in their daily practice to support their legal pleadings. The Supreme Court itself regularly cites its old decisions."
Happy Reading,
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Norman Siebrasse
Professor of Law
University of New Brunswick
Sufficient Description.com