From:                                                       Jack Enman-Beech <jenmanbeech@gmail.com>

Sent:                                                         Wednesday 9 October 2024 18:41

To:                                                            Adam Parachin

Cc:                                                             obligations@uwo.ca

Subject:                                                   Re: Canada's Chief Justice

 

I too won't defend the comment. It seems clear that Wagner CJ was speaking off the cuff and quite informally, defensive of a decision made about the translations (one some would find reasonable). That said, as the various examples in this thread show, this press conference comment does not reflect the policy or practice of the court or advocates before it. While it might be meet for Wagner CJ to clarify, and while it is ironic that his quest for transparency has resulted in an off-hand comment being taken this way, I'm not convinced there's anything beyond that to see here given the following ambiguity.

Did the Chief Justice mean that older cases are not precedentially relevant, or that they are less likely to be governing? The latter claim reasonably bears on translating the old decisions (assuming it is not a legal requirement that the court do so, which is in question). The claim that the precedential value of older cases is generally less is not unusual. This is of course because things change over time, so in the game of treating like cases alike the older a case is the less like it is likely to be. The early Supreme Court was a troubled institution, '[o]wing to the political controversy surrounding its existence, the method of appointment, and personal conflicts among the members': Michael Bader & Edward Burnstein, 'The Supreme Court of Canada 1892-1902: A Study of the Men and the Times' (1970) 8:3 Osgoode Hall Law Journal 503-547 at 506-511. The examples of old cases that we continue to use are good examples precisely because we continue to use them. See Frederick Schauer, ‘Precedent’ (1987) 39:3 Stanford Law Review 571-605, at 574-575 on encrustation and at 591-595 on weight. I think it accurate to say that the precedential value of pre-20th c Supreme Court Cases is relatively small where they have not since been reaffirmed, not because they are irrelevant on principle but because they are more likely to have been overtaken by changed law and circumstance.

 

Yours truly &c.,

 

On Wed, Oct 9, 2024 at 5:25 PM Adam Parachin <aparachin@osgoode.yorku.ca> wrote:

For those interested, here is a thoughtful and provocative op-ed on point from yesterday.

 

 

Judicial decisions and extrajudicial commentary will always attract  criticism on doctrinal and philosophical grounds.  This thread is populated with people who have made gainful careers of that very enterprise.

 

But this is different.  In my legal career, I cannot think of an extrajudicial comment that is so massively out of step with the methodology of problem solving practiced by lawyers from Main St to Bay St and legal academics of all stripes.  This is not a principled disagreement over the best interpretation of any authority or line of authorities but a comment that goes to the very approach to discovering the better view of the law.

 

Any lawyer, articling student or even law student who channeled in their work products the identical dismissive posture to pre-1970 SCC authorities - that they are of "minute" value due solely to their vintage - would face criticism up to and possibly including (in the case of lawyers) allegations of malpractice.    

 

_________________________________________


Adam Parachin | Associate Professor
Osgoode Hall Law School, York University 
4700 Keele Street, Toronto, ON, Canada  M3J 1P3
3041C Ignat Kaneff Building

 

From: Moore, Marcus <moore@allard.ubc.ca>
Sent: Monday, October 7, 2024 10:46 PM
To: Angela Swal <aswan@airdberlis.com>; Matthew Hoyle <MHoyle@oeclaw.co.uk>; Mitchell McInnes <mmcinnes@ualberta.ca>; obligations@uwo.ca <obligations@uwo.ca>; Me <mmoore@post.harvard.edu>
Subject: Re: Canada's Chief Justice

 

They don't make 'em like they used to.

 

 

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From: Angela Swan <aswan@airdberlis.com>
Sent: Friday, October 4, 2024 7:46 AM
To: Matthew Hoyle <MHoyle@oeclaw.co.uk>; Mitchell McInnes <mmcinnes@ualberta.ca>; obligations@uwo.ca <obligations@uwo.ca>
Subject: Canada's Chief Justice

 

[CAUTION: Non-UBC Email]

Well, that’s a relief!  Jakub Adamski and I are in the final stages of editing a new edition of our Contracts text.  If we ditch all the cases more than 5 — say 6, to be on the safe side — years old, it will be a very much shorter book!  What we could say to explain the law is, of course, another thing altogether.

I am reminded of a story I heard many years ago.  A Court of Appeal judge is said to have said, “Though the learned judge’s language is far from clear, I cannot believe he meant what he appears to have said”.

 

Angela Swan, O.C. (she/her)

Counsel

T   416.865.4643

E   aswan@airdberlis.com

Aird & Berlis LLP

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From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Sent: Friday, October 4, 2024 8:48 AM
To: Mitchell McInnes <mmcinnes@ualberta.ca>; obligations@uwo.ca
Subject: Re:

 

To me that appears to be a repudiation not only of the entire doctrine of precedent and stare decisis, but of the entire judicial method. 

 

I cannot fathom how a judge in any legal tradition could say that. 

 

Matthew Hoyle

Barrister

One Essex Court

 

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From: Mitchell McInnes <mmcinnes@ualberta.ca>
Sent: Friday, October 4, 2024 1:41:15 PM
To: obligations@uwo.ca <obligations@uwo.ca>
Subject:

 

Steven Elliott wrote: "The CJ’s comment cannot have been made with private law in mind."

 

That's what I thought when I initially heard about the story. But it turns out that the Chief Justice did have private law in mind. He is quoted in one of Canada's newspapers as saying: 

 

"The judicial landscape has changed completely, and a decision five years old is often, in commercial or civil matters, already a very old decision. To make a long story short, I am simply telling you that the legal interest in these historical decisions is very minimal" 

 

Mitchell

 

--

Mitchell McInnes

Faculty of Law

University of Alberta

Edmonton, Alberta, T6G 2H5

 

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