From: Neil
Foster <neil.foster@newcastle.edu.au>
Sent: Thursday
3 October 2024 00:58
To: Peter
Radan; Paul Daly; Lucas Clover Alcolea; Norman Siebrasse; Jason W Neyers
Cc: obligations
Subject: Re: The
Nadir of Common Law?
Dear Colleagues;
I agree entirely with the comments in the Conversation article and other
contributions of colleagues here. To contribute to the “old cases still matter”
theme, Armory v Delamirie (1721) 1 Strange 505; 93 ER 664 is still
regularly cited in Australia (at least) on both rights arising from possession
and the approach of presuming against a defendant who has committed a wrong and
made it otherwise difficult to quantify damages. See eg the High Court of
Australia decision in Cessnock City Council v 123 259 932 Pty Ltd [2024]
HCA 17 (8 May 2024) at [130].
And just to illustrate the precise problem of a lack of translated SCC
decisions prior to 1970 (though probably unusual in that it involves an
untranslated decision in French): a few years ago I was supervising a student
writing a paper on “ante-natal torts” (liability for harm caused to a plaintiff
while the plaintiff was in utero.) We noted that the judgment of Cannon
J in Montreal Tramways Co. v. Léveillé [1933] S.C.R. 456 was referred to
in the Victorian decision of Watt v Rama [1972] VR 353 at 357 and wanted
to read the original, but discovered that (at the time anyway) the decision had
not been translated into English and neither of us read French. But then, on
request by the student, in 2011 the Registry of the Supreme Court of Victoria
located an English translation which had been presumably organised by, and
referred to, by the court! I have made this available here for general interest
of scholars researching this area: https://works.bepress.com/neil_foster/44/
. Long-term ODG colleagues may remember I posted about this at the time.
Regards
Neil
NEIL FOSTER
Associate Professor, School
of Law and Justice
College of Human and Social Futures,
University of Newcastle, NSW
T: +61 2 49217430
E: neil.foster@newcastle.edu.au
Further details: http://www.newcastle.edu.au/profile/neil-foster
My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828
Blog: https://lawandreligionaustralia.blog
The University of Newcastle
Hunter St & Auckland St, Newcastle NSW 2300
Top 200 University in the world by QS World University
Rankings 2021
I acknowledge the Traditional Custodians of the land
in which the University resides and pay my respect to Elders past, present and
emerging.
I extend this acknowledgement to the Worimi and Awabakal people of the land
in which the Newcastle City campus resides and which I work.
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From: Peter Radan <peter.radan@mq.edu.au>
Date: Thursday, 3 October 2024 at 7:49 AM
To: Paul Daly <paul.daly@uottawa.ca>,
Lucas Clover Alcolea <lucas.cloveralcolea@otago.ac.nz>,
Norman Siebrasse <norman.siebrasse@gmail.com>,
Jason W Neyers <jneyers@uwo.ca>
Cc: obligations <obligations@uwo.ca>
Subject: Re: The Nadir of Common Law?
As an outsider, ie from the Land Down
Under, I am curious as to what the CJs statement means in terms of citing
non-Canadian cases, be they pre- or post-1970s. I note that in its recent
decision in Poonian v British Columbia (Securities Commission) handed
down in July this year, Derry v Peek, a decision of the House of Lords
in 1889 was cited.
Peter Radan
Honorary Professor, Macquarie University
Fellow of the Australian Academy of Law
BA, LLB, PhD (Syd), Grad Dip Ed, PhD
(UTS)
Macquarie Law School
Michael Kirby Building
17 Wally's Walk,
Macquarie University, NSW, 2109
Australia
Email: peter.radan@mq.edu.au
From:
Paul Daly <paul.daly@uottawa.ca>
Sent: Thursday, 3 October 2024 7:34 AM
To: Lucas Clover Alcolea <lucas.cloveralcolea@otago.ac.nz>;
Norman Siebrasse <norman.siebrasse@gmail.com>;
Jason W Neyers <jneyers@uwo.ca>
Cc: obligations <obligations@uwo.ca>
Subject: Re: The Nadir of Common Law?
Even in
public law (my area, most would say) old cases remain relevant some of the
time. The prerogative cases from the 17th century are still good law.
Parliamentary privilege cannot be understood without reference to fairly
ancient cases. And one should not forget about cases such as Entick v
Carrington, an action in trespass that nonetheless establishes the foundational
principle that officials cannot exercise coercive authority without statutory
basis.
Indeed, I
cited several 19th century cases on certiorari to the SCC only last year! https://www.scc-csc.ca/WebDocuments-DocumentsWeb/40348/FM030_Intervener_Canadian-Telecommunications-Association.pdf
That said,
I think most Canadian public law practitioners would not be inclined to look
that far back. The SCC did not cite any of the cases I cited in its decision in
the case I mentioned https://canlii.ca/t/k3gs5 And
I think Lucas has offered a good institutional explanation that gives context
to the Chief Justice's remark.
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From:
Lucas Clover Alcolea <lucas.cloveralcolea@otago.ac.nz>
Sent: Wednesday, October 2, 2024 4:53:53 PM
To: Paul Daly <paul.daly@uottawa.ca>;
Norman Siebrasse <norman.siebrasse@gmail.com>;
Jason W Neyers <jneyers@uwo.ca>
Cc: obligations <obligations@uwo.ca>
Subject: RE: ODG:The Nadir of Common Law?
Attention : courriel externe | external
email
If one was going to defend the CJC, which I won’t even
attempt to do, I suppose one could say that in public law, particularly
following the charter, much has changed in the last few decades, let alone the
last century. It’s also undeniable that much of that has been driven by what we
might, charitably, call the SCC’s ‘creativity’, whether that’s a good or a bad
thing is, I suppose, another matter. On a more general level, it does reveal
much about what the SCC perceives its role to be, in that vein I recall reading
an interesting article by Amitpal
Singh noting that “The Court has long since shed the
carapace of error-correction and morphed into a jurisprudential shepherd. As
our apex court, the Supreme Court of Canada is clearly a law-making court, one
that renovates entire doctrinal areas and crafts novel legal frameworks.” In
that context the statements are entirely fitting, although, of course, one can
disagree that that is an appropriate role for a court, even an apex court, to
take on. However, even in private law, it’s clear that the Canadian approach is
much more laissez-faire, imposing remedial discretionary trusts on an ad hoc
basis, choosing whichever remedy appears most appropriate regardless of the
nature of the right at issue etc etc… So, in its context, the statement is
merely saying ‘the quiet part loud’.
To be clear, I don’t agree with this view of apex
courts or precedent, but its entirely in line with what the SCC has been doing
now, even in private law, for decades.
All the best,
Lucas
|
|
Dr Lucas
Clover-Alcolea |
From: Paul Daly <paul.daly@uottawa.ca>
Sent: Thursday, October 3, 2024 9:45 AM
To: Norman Siebrasse <norman.siebrasse@gmail.com>;
Jason W Neyers <jneyers@uwo.ca>
Cc: obligations <obligations@uwo.ca>
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
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