Matthew, I attended a CLE course a few years ago in which counsel for the BC Government on the Tercon case, 2010 SCC 4, commented on that decision. He said that what he should have done is bone up on the civil law dealing with good faith in contracts. He was referring to the fact that, of the 5 judges who held that the province could not invoke the exclusion of liability clause, three were the Quebec judges, to whom it was natural to see the province’s behaviour (of going to an ineligible bidder) as a breach of good faith. And good faith is referred to explicitly as a ground for the decision, in paras. 58-59 of Cromwell J’s judgment.

 

All the best,

 

Joost

 

 

 

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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