Date: Mon, 11 Dec 2006 14:35:09 -0500

From: John Swan

Subject: The Scope of Private Law

Jason,

I don't think that your question can be answered as you have phrased it. The important question to a common lawyer would be, why do you want to know? If you were to ask, e.g., whether a plaintiff has pleaded a cause of action in contract, i.e., a question relevant under the Rules of Civil Procedure, you would have to ask investigate the statement of claim to see if the plaintiff had alleged a contract and its breach. Since the answer to the question whether the plaintiff has shown a cause of action, involves both the provisions of an Ontario regulation and the requirements of the common law for a valid contract, the question whether private law is involved or not has to be yes — at least to some extent. But then too is public law equally involved.

Similarly the rules of evidence regarding, say, the ability of a court to get evidence from a witness in a foreign jurisdiction, have both a public and a private law dimension; public because the power of an Ontario court to make the request is based on legislation and private because the evidence may be important to establish, for example, that there is (or is not) a contract.

I don’t think that those answers are particularly helpful but, if they give you an answer to your question, so much the better. In other words, I don't think that it is possible to answer your questions in the abstract. Abstract questions like yours are too reminiscent of the kind of questions I get asked by my tax partners where the question, "Why to you want to know?", can't be answered or, more often is irrelevant.

John

-----Original Message-----
From: Jason Neyers
Sent: December 11, 2006 2:05 PM
Subject: ODG: The Scope of Private Law

Dear Colleagues:

I would be interested in your views about the scope of private law.

Would you for example include the law of evidence, civil procedure or conflicts of law as part of the private law? Would you include statutes, such as the Negligence Act or the UK Privity legislation as part of the private law? If not, then why not. Is there some authoritative definition of the concept that you like to employ?

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