From:                                                       Paul Daly <paul.daly@uottawa.ca>

Sent:                                                         Wednesday 2 October 2024 21:45

To:                                                            Norman Siebrasse; Jason W Neyers

Cc:                                                             obligations

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
Sufficient Description.com