Hi – I do see a similar trend and I think we can find several decisions where the Supreme Court has started to look to Quebec civil law for inspiration.  Bhasin certainly is one such example where Justice Cromwell takes comfort in generalizing the doctrine of good faith in common law Canada from the fact that it exists in Quebec and has not “impeded contractual activity and contractual stability”.  Another example is the Van Breda decision regarding geographic jurisdiction (on appeal from Ontario) where Justice LeBel cites the Quebec Civil Code provisions on international jurisdiction 10 times and imports a more principled civilian approach (elaborating presumptive connecting factors) to deciding whether there is a real and substantial connection, rather than leaving it open to wide discretion.

 

I have written on this cross-fertilization to some extent in a paper entitled “The Legacy of Justice Louis LeBel:  The Civilian Tradition and Procedural Law” that is forthcoming in the Supreme Court Law Review.  If you are interested, I can send you a copy directly.

Rosalie

 

 

Dear Colleagues

 

I am working on a short piece, in which I take the position that the Canada Supreme Court has begun to import concepts of the civil law into the private law of contract and tort, or at least expand common law rules in directions that might reflect civil law values.  At present, it’s very skeletal.  I see this tendency, for example, in Bhasin where, in my view, the court adopts a view of good faith that fits nicely in the civil law, but is something of a development in the common law.  (I know some of you disagree with this view.)

 

I`m wondering if others see a similar trend? Or is this mountain out of molehill?

 

Best regards.

 

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Matthew P. Harrington

Professeur

Faculté de droit

Université de Montréal

Montréal, Québec

514.343.6105

matthew.p.harrington@umontreal.ca

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