From: Stéphane
Sérafin <Stephane.Serafin@uottawa.ca>
Sent: Friday 4
October 2024 00:46
To: Lucas
Clover Alcolea; obligations
Subject: Re: ODG:
The Nadir of Common Law?
The authorship of those decisions is not a coincidence, though.
I'm not sure you should be drawing inferences about the court based on
decisions by Justices Côté and Rowe (and Brown when he was on the SCC).
Certainly there are a few prominent counter-examples like Moore v Sweet but
generally you can count on these judges to uphold some version of orthodoxy and
on others to adopt an unorthodox approach.
From: Lucas Clover Alcolea
<lucas.cloveralcolea@otago.ac.nz>
Sent: October 3, 2024 4:56 PM
To: obligations <obligations@uwo.ca>
Subject: RE: ODG: The Nadir of Common Law?
Attention
: courriel externe | external email
I suppose, in fairness to the SCC, not all their decisions are
necessarily unorthodox. For example, re trusts, they seem to have an even
stricter orthodoxy about (at least express) trusts being a result of split
ownership than say the English Courts (this isn’t to say the English have
changed their mind, except for academics with the rights on rights stuff, just
that they don’t discuss it explicitly as much), see Côté J’s statements in Yared
v Karam and Canada v Canada North Group, and Brown J’s statements in
Valard Construction v Bird Construction for example. Of course, this is
then outweighed by the unorthodoxy when it comes to constructive trusts. It’s
also perhaps worth noting that Côté’s statement that “In the common law, a
trust arises when legal ownership and beneficial ownership of a particular
property are separated” wasn’t buttressed by any authority older than 1990,
although in Yared we got back to (perhaps fittingly?) 1984, (and
interestingly Valard does cite several trust law textbooks, including
English ones) but still nothing before 1970…
|
|
Dr
Lucas Clover-Alcolea |
From: Rande Kostal <rwk@uwo.ca>
Sent: Friday, October 4, 2024 2:29 AM
To: sbeswick <sbeswick@sjd.law.harvard.edu>;
obligations <obligations@uwo.ca>
Subject: RE: ODG: The Nadir of Common Law?
I share
Sam’s concerns about the SCC’s forthcoming hearing/decision in Ahluwalia (in
which the Plaintiff/Appellant pleads a new tort of “family violence”). The
decision will reveal a lot, perhaps too much, about the current Court’s regard
for the conventions of common law reasoning.
But that
leave was given in the face of the carefully reasoned decision of the Ontario
Court of Appeal (rejecting the new tort) does not auger well for the
Respondent. The ONCA took pains to apply the legal/common law
(“evolutionary”/“incrementalist”) criteria for the recognition of new torts as
laid down by that Court in Jones v Tsige (2012) and in Merrifield v
Canada (2019). It found the Appellant’s legal arguments wanting in every
respect, noting particularly that the Appellant did not cite even one decisional
authority --from any common law court/jurisdiction-- explicitly supporting the
existence of the new tort.
And yet
leave was given, suggesting…
Rande
Kostal
From: Samuel Beswick <sbeswick@sjd.law.harvard.edu>
Sent: October 2, 2024 11:46 PM
To: obligations <obligations@uwo.ca>
Subject: Re: ODG:The Nadir of Common Law?
I fear
what this signals for the SCC's upcoming judgment in Ahluwalia
v. Ahluwalia. One might think relevant to the question of recognising a
"new tort" would be consideration of what it means to recognise a
cause of action, a question helpfully elucidated in Letang v. Cooper
[1964], a case cited in five
judgments of the Supreme Court of Canada (most recently in 2015).
Canadian
tort law would be unintelligible without reference to pre-1970 case law. We see
in the past 10 years of Supreme Court decisions references to Donoghue v.
Stevenson [1932], Hedley Byrne & Co. Ltd v. Heller & Partners
Ltd [1963], The Wagon Mound No. 1 [1961], and Palsgraf v. Long
Island Railroad Co. (1928). The SCC's judgment in Booth v. St.
Catharines (City), [1948] S.C.R. 564 was cited by the Prince Edward
Island Supreme Court in a 2015 case.
The lower
courts, as well as earlier SCC judgments, frequently cite Armory v.
Delamirie [1722], Entick v. Carrington (1765), Grant v.
Australian Knitting Mills Ltd [1935], MacPherson v. Buick Motor Co.
(1916), McHale v. Watson [1966], Paris v. Stepney Borough Council
[1950], Rylands v. Fletcher [1868], Scott v. Shepherd [1773], Smith
v. Stone (1647), Tuberville v. Savage [1669], Vincent v. Lake
Erie Transport Co. (1910), Wagner v. International Railway Co.
(1921), and Wilkinson v. Downton [1897].
All cases
that appear in my CanLII casebook
and that I (continue to) teach to help my students understand the common law of
torts in Canada.
Best,
Sam
On Wed, 2
Oct 2024 at 13:45, Paul Daly <paul.daly@uottawa.ca>
wrote:
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
Sufficient Description.com