Dear Eugene:
I agree with the summary provided by Jason Neyers regarding the approach of our Supreme Court. However, quote he provides starts with "Generally speaking . . .," and it is a fact that the Court sometimes departs from the general stance set out there, which of course goes back to your original point. An example is
Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210, which involved negligence at sea (in this case, related to an oil rig). The plaintiff was held contributorily negligent, and under Canadian maritime law, which is a federal matter, that would have created a complete bar to recovery. Here's an excerpt from the headnote that summarizes the Court's response:
While the federal government has not passed contributory negligence legislation for maritime torts, the common law principles embodied in Canadian maritime law remain applicable in the absence of federal legislation. Although contributory negligence barred recovery at common law, the maritime contributory negligence bar should be removed. This is an appropriate case for this Court to make an incremental change to the common law in compliance with the requirements of justice and fairness. The proposed change falls within the test for judicial reform of the law which has been developed. First, the change is required to keep the maritime common law in step with the dynamic and evolving fabric of our society. Second, removal of the contributory negligence bar will not have unforeseeable or complex ramifications beyond the cognizance of the judiciary. The principle of apportionment for non‑maritime torts is universally accepted in every part of Canada and around the world. Contributory negligence may reduce recovery but does not bar the plaintiff’s claim.
So if a change is needed to keep the law in step "with the dynamic and evolving fabric" of society, doesn't have complex ramifications that judges can't foresee, and is accepted in other jurisdictions, that may tip the balance.
Another SCC example is
Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534. There, the plaintiff brought a representative action on behalf of an investor class in relation to a failed investment scheme in Alberta. The province of Alberta did not have class action legislation at the time, and the defendant challenged the class pleading. At paragraph 34, the Court said that "absent comprehensive legislation, the courts must fill the void under their inherent power to settle the rules of practice and procedure as to disputes brought before them [citations omitted]. However desirable comprehensive legislation on class action practice may be, if such legislation has not been enacted, the courts must determine the availability of the class action and the mechanics of class action practice." Now one might have said that Alberta had made a policy choice not to have class action legislation, unlike several other provinces that had enacted it by then. But by characterizing this as a matter of fairness and control over court procedure, the Court was again able to sidestep the general hands-off stance set out in
Watkins v. Olafson.
Yours truly,
John Kleefeld
Assistant Professor, College of Law
University of Saskatchewan
15 Campus Drive
Saskatoon SK Canada S7N 5A6
tel:
(+1) 306.966.1039
email:
john.kleefeld@usask.caskype:
johnkleefeld
On 2011-05-17, at 12:41 PM, Volokh, Eugene wrote:
Dear colleagues: Judges in tort cases sometimes reject a proposed extension of tort liability on the grounds that it should be left to the legislature (and not just in cases where there’s already a statute foreclosing such liability, which can indeed only be modified by the legislature). The judges obviously recognize that they have the power to create new tort law rules, and that most tort law rules were indeed created by judges; but in some situations, they conclude that they shouldn’t make certain decisions, and that it is only the legislature that should be able to make them. Are there any good articles that discuss this as a general matter, both descriptively and normatively? Many thanks,
Eugene Volokh
UCLA School of Law