From: Barbara
Legate <blegate@legatelaw.ca>
Sent: Thursday
3 October 2024 13:13
To: Neil
Foster; Peter Radan; Paul Daly; Lucas Clover Alcolea; Norman Siebrasse; Jason W
Neyers
Cc: obligations
Subject: Re: The
Nadir of Common Law?
As a
practitioner, I can emphatically reassure you that counsel will cite cases that
support their position no matter how old and dusty they may be. The judicial
sky is not falling in Canada. You can and should continue to teach the
historical development of the common law. I did not get enough of it
during my time in law school and had to discover its importance in
the very public forum of the courtroom.
The
translation issue may have been a problem but AI and google translate will fix
that no doubt.
Best
to all.
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From:
Neil Foster <neil.foster@newcastle.edu.au>
Sent: Wednesday, October 2, 2024 8:06 PM
To: Peter Radan <peter.radan@mq.edu.au>;
Paul Daly <paul.daly@uottawa.ca>;
Lucas Clover Alcolea <lucas.cloveralcolea@otago.ac.nz>;
Norman Siebrasse <norman.siebrasse@gmail.com>;
Jason W Neyers <jneyers@uwo.ca>
Cc: obligations <obligations@uwo.ca>
Subject: Re: The Nadir of Common Law?
Dear Colleagues;
I agree entirely with the comments in the Conversation article and other contributions of colleagues here. To contribute to the “old cases still matter” theme, Armory v Delamirie (1721) 1 Strange 505; 93 ER 664 is still regularly cited in Australia (at least) on both rights arising from possession and the approach of presuming against a defendant who has committed a wrong and made it otherwise difficult to quantify damages. See eg the High Court of Australia decision in Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17 (8 May 2024) at [130].
And just to illustrate the precise problem of a lack of translated SCC decisions prior to 1970 (though probably unusual in that it involves an untranslated decision in French): a few years ago I was supervising a student writing a paper on “ante-natal torts” (liability for harm caused to a plaintiff while the plaintiff was in utero.) We noted that the judgment of Cannon J in Montreal Tramways Co. v. Léveillé [1933] S.C.R. 456 was referred to in the Victorian decision of Watt v Rama [1972] VR 353 at 357 and wanted to read the original, but discovered that (at the time anyway) the decision had not been translated into English and neither of us read French. But then, on request by the student, in 2011 the Registry of the Supreme Court of Victoria located an English translation which had been presumably organised by, and referred to, by the court! I have made this available here for general interest of scholars researching this area: https://works.bepress.com/neil_foster/44/ . Long-term ODG colleagues may remember I posted about this at the time.
Regards
Neil
NEIL FOSTER
Associate Professor, School of Law and Justice
College of Human and Social Futures,
University of Newcastle, NSW
T: +61 2 49217430
E: neil.foster@newcastle.edu.au
Further details: http://www.newcastle.edu.au/profile/neil-foster
My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828
Blog: https://lawandreligionaustralia.blog
The University of Newcastle
Hunter St & Auckland St, Newcastle NSW 2300
Top 200 University in the world by QS World University Rankings 2021
I acknowledge the Traditional Custodians of the land in which the
University resides and pay my respect to Elders past, present and emerging.
I extend this acknowledgement to the Worimi and Awabakal people of the land
in which the Newcastle City campus resides and which I work.
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From: Peter Radan <peter.radan@mq.edu.au>
Date: Thursday, 3 October 2024 at 7:49 AM
To: Paul Daly <paul.daly@uottawa.ca>,
Lucas Clover Alcolea <lucas.cloveralcolea@otago.ac.nz>,
Norman Siebrasse <norman.siebrasse@gmail.com>,
Jason W Neyers <jneyers@uwo.ca>
Cc: obligations <obligations@uwo.ca>
Subject: Re: The Nadir of Common Law?
As an outsider, ie from the Land Down Under, I am curious as to what the CJs statement means in terms of citing non-Canadian cases, be they pre- or post-1970s. I note that in its recent decision in Poonian v British Columbia (Securities Commission) handed down in July this year, Derry v Peek, a decision of the House of Lords in 1889 was cited.
Peter Radan
Honorary Professor, Macquarie University
Fellow of the Australian Academy of Law
BA, LLB, PhD (Syd), Grad Dip Ed, PhD (UTS)
Macquarie Law School
Michael Kirby Building
17 Wally's Walk,
Macquarie University, NSW, 2109
Australia
Email: peter.radan@mq.edu.au
From: Paul
Daly <paul.daly@uottawa.ca>
Sent: Thursday, 3 October 2024 7:34 AM
To: Lucas Clover Alcolea <lucas.cloveralcolea@otago.ac.nz>;
Norman Siebrasse <norman.siebrasse@gmail.com>;
Jason W Neyers <jneyers@uwo.ca>
Cc: obligations <obligations@uwo.ca>
Subject: Re: The Nadir of Common Law?
Even in public law (my area, most would say) old cases remain relevant some of the time. The prerogative cases from the 17th century are still good law. Parliamentary privilege cannot be understood without reference to fairly ancient cases. And one should not forget about cases such as Entick v Carrington, an action in trespass that nonetheless establishes the foundational principle that officials cannot exercise coercive authority without statutory basis.
Indeed, I cited several 19th century cases on certiorari to the SCC only last year! https://www.scc-csc.ca/WebDocuments-DocumentsWeb/40348/FM030_Intervener_Canadian-Telecommunications-Association.pdf
That said, I think most Canadian public law practitioners would not be inclined to look that far back. The SCC did not cite any of the cases I cited in its decision in the case I mentioned https://canlii.ca/t/k3gs5 And I think Lucas has offered a good institutional explanation that gives context to the Chief Justice's remark.
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From: Lucas
Clover Alcolea <lucas.cloveralcolea@otago.ac.nz>
Sent: Wednesday, October 2, 2024 4:53:53 PM
To: Paul Daly <paul.daly@uottawa.ca>;
Norman Siebrasse <norman.siebrasse@gmail.com>;
Jason W Neyers <jneyers@uwo.ca>
Cc: obligations <obligations@uwo.ca>
Subject: RE: ODG:The Nadir of Common Law?
Attention : courriel externe | external email
If one was going to
defend the CJC, which I won’t even attempt to do, I suppose one could say that
in public law, particularly following the charter, much has changed in the last
few decades, let alone the last century. It’s also undeniable that much of that
has been driven by what we might, charitably, call the SCC’s ‘creativity’,
whether that’s a good or a bad thing is, I suppose, another matter. On a more
general level, it does reveal much about what the SCC perceives its role to be,
in that vein I recall reading an interesting article by Amitpal
Singh noting that “The Court has long since shed
the carapace of error-correction and morphed into a jurisprudential shepherd.
As our apex court, the Supreme Court of Canada is clearly a law-making court,
one that renovates entire doctrinal areas and crafts novel legal frameworks.”
In that context the statements are entirely fitting, although, of course, one
can disagree that that is an appropriate role for a court, even an apex court,
to take on. However, even in private law, it’s clear that the Canadian approach
is much more laissez-faire, imposing remedial discretionary trusts on an ad hoc
basis, choosing whichever remedy appears most appropriate regardless of the
nature of the right at issue etc etc… So, in its context, the statement is
merely saying ‘the quiet part loud’.
To be clear, I don’t
agree with this view of apex courts or precedent, but its entirely in line with
what the SCC has been doing now, even in private law, for decades.
All the best,
Lucas
|
|
Dr Lucas
Clover-Alcolea |
From: Paul Daly <paul.daly@uottawa.ca>
Sent: Thursday, October 3, 2024 9:45 AM
To: Norman Siebrasse <norman.siebrasse@gmail.com>;
Jason W Neyers <jneyers@uwo.ca>
Cc: obligations <obligations@uwo.ca>
Subject: RE: ODG:The Nadir of Common Law?
I will see Norm and
raise him Tarleton v. M’Gawley (1793),
Peake 270, 170 E.R. 153, cited in A.I. Enterprises Ltd. v. Bram
Enterprises Ltd., 2014 SCC 12 as a foundational case in the tort of unlawful
interference. Of course, I only remember this because the facts of the earlier
case involved shooting cannons at a canoe.
More seriously, I am
sure there are other, older examples too that speak to Matthew Hoyle’s point
about the importance of venerable precedent in understanding contemporary
private law.
From: Norman Siebrasse <norman.siebrasse@gmail.com>
Sent: Wednesday, October 2, 2024 4:17 PM
To: Jason W Neyers <jneyers@uwo.ca>
Cc: obligations <obligations@uwo.ca>
Subject: Re: ODG:The Nadir of Common Law?
Attention
: courriel externe | external email
In Monsanto Canada Inc. v. Schmeiser 2004 SCC 34 [102] the SCC cited its own 1886 decision
in Collette v. Lasnier (1886), 13 S.C.R. 563, as the primary authority for
the correct approach to an accounting of profits.
On Wed, Oct 2, 2024
at 5:10 PM Jason W Neyers <jneyers@uwo.ca> wrote:
Dear Colleagues,
The Chief Justice of Canada has recently been reported as saying, in the context of refusing to translate pre-1970 judgments into both official languages, that the legal value of old Supreme Court decisions is “minute" and that “no one today [would] refer to a precedent from 1892 to support their case.”
I guess I better rethink how I teach and approach the common law!
As one commentator responded:
"These statements are astonishing. In a common law system such as ours, judicial decisions are legally authoritative unless explicitly overturned. In accordance with the rule of precedent (stare decisis), courts must apply the rules of law established in previous decisions when similar situations arise. The rule of precedent lends stability to the law, allowing individuals to plan their activities so that they stay within the applicable rules.
As such, unless they have been explicitly set aside, decisions of the highest court from before 1970 still have precedential value. They are part of Canada’s normative landscape. Lower courts are required to apply the rules of law established by the Supreme Court, including those handed down prior to 1970. Similarly, the Supreme Court must follow its own precedents, unless it determines there is a “compelling reason” to depart from them.
In fact, many Supreme Court decisions of that era are still taught in Canadian law schools. Moreover, lawyers still refer to pre-1970 precedents in their daily practice to support their legal pleadings. The Supreme Court itself regularly cites its old decisions."
Happy Reading,
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Norman Siebrasse
Professor of Law
University of New Brunswick
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