From: Steven
Elliott <selliott@oeclaw.co.uk>
Sent: Friday 4
October 2024 07:10
To: Lucas
Clover Alcolea; Stéphane Sérafin; obligations
Subject: Re: The
Nadir of Common Law?
The
CJ’s comment cannot have been made with private law in mind. Whole areas of our
commercial law, our equity, etc were elaborated in the nineteenth
century and cannot be understood without reference to those authorities.
Commercial practitioners (myself included) often read and cite such
cases.
My
impression is that in approach and perhaps philosophy the SCC is out of line
with other Commonwealth apex courts. I have sympathy with the view expressed
that SCC justices often seem to be asking a different question from that which
our system is designed to pose. Does anyone want to venture a theory as to how
this came to pass?
My
unprovable and unfalsifiable assumption is (1) the pernicious influence of
legal realism in North America, leading the judges to think their job is to see
past the rules and principles and authorities and cut through to the supposedly
real policy issues, which as a mindset does not work well in private law, and
(2) the absence in Canada of an independent bar, and the law firm model where
“research” is seen as a junior lawyer work product, with the consequence that
by the time an eminent partner is appointed to the bench, it may be a long time
since they have engaged with the law in any serious way (there are always
admirable exceptions).
None
of this is new. The concerns voiced in this discussion echo (some of the)
reasons why, as a junior lawyer passionate about private law, I decided in the
1990s to start my career in England. I remember having much the same discussion
about the SCC with Birks in about 1998.
Steven
Elliott
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From: Lucas Clover Alcolea
<lucas.cloveralcolea@otago.ac.nz>
Sent: Friday, October 4, 2024 12:50:20 AM
To: Stéphane Sérafin <Stephane.Serafin@uottawa.ca>;
obligations <obligations@uwo.ca>
Subject: RE: ODG: The Nadir of Common Law?
Of course, but this orthodoxy may, on occasion, extend beyond them, for
example Wagner CJ and Kasirer J both joined in Côté’s judgment in Canada v
Canada North. Brown J’s judgment in Valard likewise featured a
majority of the court and so on. But yes, your point is well taken.
|
|
Dr
Lucas Clover-Alcolea |
From: Stéphane Sérafin <Stephane.Serafin@uottawa.ca>
Sent: Friday, October 4, 2024 12:46 PM
To: Lucas Clover Alcolea <lucas.cloveralcolea@otago.ac.nz>;
obligations <obligations@uwo.ca>
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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