A-ha! (As Alan Partridge KC might say...)

To answer Sean’s question at 2(a), Canada’s Official Languages Act was enacted in 1969. The following year, the Supreme Court began its current practice of publishing every decision simultaneously in both French and English, as required by the OLA.

 

The main disagreement between the Chief Justice of Canada and the Commissioner of Official Languages is whether the unilingual pre-1970 decisions that the Court makes available on its website are “communications” to the public. If yes, then the decisions must be translated.

 

In attempting to justify his view that published decisions are not “communications” to the public under the OLA, the CJC made the astonishing argument that older decisions are of minimal value. And here we are.

 

De : Sean Thomas <sean.thomas@york.ac.uk>
Date : vendredi, 4 octobre 2024 à 10:19
À : Steven Elliott <selliott@oeclaw.co.uk>
Cc : Lucas Clover Alcolea <lucas.cloveralcolea@otago.ac.nz>, Stéphane Sérafin <Stephane.Serafin@uottawa.ca>, obligations <obligations@uwo.ca>
Objet : Re: The Nadir of Common Law?

Attention : courriel externe | external email

Hi All,

 

Just two relatively short points (unusual for me...), partly in response to what Steven has said.

 

(1) Yes, legal realism has had a pernicious influence (qv law and economics on one side, CLS on the other...). But, I'm not entirely sure about the point made: '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' - (a) I think that policy issues can and do matter (for good and for bad) in private law as much as public law, and also nb the influence of private lawyers such as Llewellyn, Corbin, Hohfeld etc on the development of US legal realism. But that point is really one for the intellectual historians of legal realism to discuss ad nasuem.

 

(2) I can't speak about the bar/research points that Steven makes. However, two things that this whole "no one cares about stuff before 1970" thing has made me wonder: (a) why 1970? Did some sort of terrible thing happen then (in Canada/North America)? (b) I very often have to deal with (undergraduate) students who ask whether we have to or even, are allowed, to cite materials from (say) 10 years ago. This is the influence of sciences in the University, I think. (By science I mean hard science, eventually going through to quantitative social sciences, then through to the social sciences generally.) That is, law students are exposed to (accidentally and sometimes deliberately) "generic" research advice, which is often inappropriate for legal research because it is designed for empirical, quantitative (social) sciences. And they don't know any better (why should they?). And so they think that advice about "appropriate" research material is generic across all areas of study. And, as implied, I sometimes get the impression that this is felt to be correct by academics from non-law disciplines. 

 

Sean.

 

On Fri, 4 Oct 2024 at 07:09, Steven Elliott <selliott@oeclaw.co.uk> wrote:

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

 

 

Steven Elliott KC Barrister www.oeclaw.co.uk Direct dial: Switchboard:  +44 (0)20 7520 4773 +44 (0)20 7583 2000

One Essex Court, London Temple London EC4Y 9AR United Kingdom Tel +44 (0)20 7583 2000 clerks@oeclaw.co.uk One Essex Court, Singapore #04-14 Maxwell Chambers Suites 28 Maxwell Road Singapore 069120 Tel +65 6634 1363 singapore@oeclaw.sg Chambers UK Commercial Dispute Resolution Set of the Year 2023   The Legal 500 Financial Services and Insurance Set of the Year 2023

Information in this message is confidential and is likely to be subject to legal professional privilege. If you have received this message in error, please notify me immediately and do not disclose, copy, distribute or retain either the whole or any part of the message or any attachments. If you are not the intended recipient, please telephone (020) 7583 2000 immediately. Regulated by the Bar Standards Board.

---

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 Lecturer Faculty of Law University of Otago | Te Whare Wānanga o Otāgo Richardson Building, 85 Albany Street, Dunedin | Ōtepoti New Zealand | Aotearoa Email lucas.cloveralcolea@otago.ac.nz Linkedin

 

 

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 Lecturer Faculty of Law University of Otago | Te Whare Wānanga o Otāgo Richardson Building, 85 Albany Street, Dunedin | Ōtepoti New Zealand | Aotearoa Email lucas.cloveralcolea@otago.ac.nz Linkedin

 

 

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!

 

https://theconversation.com/the-supreme-court-of-canada-is-wrong-to-refuse-to-translate-its-pre-1970-decisions-239715

 

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, 

 

Get Outlook for Android

 

You're receiving this message because you're a member of the obligations group from The University of Western Ontario. To take part in this conversation, reply all to this message.

View group files   |   Leave group   |   Learn more about Microsoft 365 Groups

 

--

Norman Siebrasse
Professor of Law
University of New Brunswick
Sufficient Description.com

 

Disclaimer

The information contained in this communication from the sender is confidential. It is intended solely for use by the recipient and others authorized to receive it. If you are not the recipient, you are hereby notified that any disclosure, copying, distribution or taking action in relation of the contents of this information is strictly prohibited and may be unlawful.

This email has been scanned for viruses and malware, and may have been automatically archived by Mimecast, a leader in email security and cyber resilience. Mimecast integrates email defenses with brand protection, security awareness training, web security, compliance and other essential capabilities. Mimecast helps protect large and small organizations from malicious activity, human error and technology failure; and to lead the movement toward building a more resilient world. To find out more, visit our website.

 

--

Dr Sean Thomas

Reader

York Law School

University of York

Heslington

York YO10 5GD

 

https://www.york.ac.uk/law/people/thomas/

tel: 01904 32 6437