This comment might not be of much help for a ‘short’ paper, but with only a bit of licence one could characterize the Canadian Supreme Court’s approach over the last 25 years or so to private law generally, and in particular to tort and unjust enrichment law, as attempting to squeeze common law materials into a civilian structure.

 

This approach is seen most clearly in the attempt to adopt the broadly civilian (particularly French-civilian) approach of grounding all the relevant rules under a single master principle. This move was made explicitly in unjust enrichment (with the adoption, on the surface anyway, of the ‘no juristic reason’ test), but it can also be seen, I would argue, in the Supreme Court’s never-ending quest to come up with a single, all-encompassing test for liability in negligence, specifically a single test for duty of care. (Not to mention being evidenced by the SC occasionally assuming that negligence is the only tort: see Cooper). In case after case, the SCC has purported to articulate ‘the’ test for duty of care, i.e., a test that in principle applies to misrepresentation, breach of statutory duty, dangerous buildings, and every other instance of negligence liability. The difficulty, as Rob Stevens book shows so well, is that the common law did not develop in this way. It developed by recognizing a series of different ‘rights’ and so  a series of different torts, including different kinds of negligence. 

 

Perhaps one day in the future we will look back on the common law of tort and say that it was in the current period that the old common law finally gave way to the modern, and civilian, approach (in the same way that the old common law of assumpsit, debt, and so on was re-formed in the 19^th century into the civilian-looking modern law of ‘contract’), and that the SCC helped lead the way. Perhaps such a transformation would also be a good thing. But in the meantime, the difficulty is that it is not possible to apply a single test to all the different examples of negligence. This is why, in case after case, the SCC has had to radically revise the universal test that it proposed in the last case it decided. The test that they articulate in, say, a case of misrepresentation does not work in a case of physical injury or emotional harm or statutory duty, etc.—or at least the test does not work so long as the court was not willing to throw out the entirety of the common law rules that had previously been applied  to these categories (in which case duty of care basically becomes a part of causation, a la civil law). So they try to come up with another test.  And then they do it again. Whether or not one likes the traditional common law approach—and I accept that many do not—the result of the SCC’s attempt to ‘civilise’ the common law in  this way has been a bit of a mess in the short term.

 

I should make clear that I don’t suggest our SC is consciously trying to make the common law more civilian (though I do think that, unsurprisingly for the Canadian SC, they like to conclude that Canadian common and civil law are fundamentally similar). It may be that, like many people (including many academics), they simply prefer ‘master principles’ to messy categories.  (Pretty much every time you see the word ‘category’ in a SCC decision, the reference is followed by an argument for doing away with the category in question). Still, one way of describing Canadian common law over the past 25 or so years is that our SC has acted as if it wants to force the common law into a civilian structure.

 

Cheers

 

 

Stephen A. Smith

James McGill Professor

Faculty of Law, McGill University

3674 Peel St.

Montreal, Quebec H3A 1W9

1-514-398-6633

fax: 1-514-398-3233

 

 

 

 

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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