Reflections on Obligations in Canada

Post by Samuel Beswick

On May 5–6, the Peter A. Allard School of Law (University of British Columbia) hosted the inaugural Canadian Law of Obligations conference with the theme of Innovations, Innovators, and the Next 20 Years. The conference was held in honor of Professor Joost Blom QC to mark his retirement from a 45-year career at UBC’s Law School.

Justice Russell Brown of the Supreme Court of Canada, a UBC alumnus and unabashed “tortaholic,” opened the conference with praise of Canada’s legal heritage and the methodological constraints of stare decisis, analogical reasoning, and reasons-based persuasion that are both empowering and humbling features of common law adjudication.

The conference drew scholars from across North America as well as from England and Wales, Hong Kong, Israel, and South Africa. Across the nine panels and four keynote addresses, presentation topics traversed problems concerning public authority liability, the evolving torts of privacy and defamation, remedies for historic wrongs and abolition of historic rights, private law theory, empirical research and causation theory, trusts, and the implications of the good faith principle in contract law (the “tortification of contract,” as Professor Blom put it).

Two themes—both concerning the expansion of tort law—resonated with me in particular.

First, several presenters spoke to the need for legal systems to address modern pressures on privacy and reputation. Whether and how tort law ought to respond remains a challenge. How should courts balance privacy and free speech values in the 21st century? What does the expanding role of privacy torts mean for the (declining?) law of defamation? Lord Lloyd once said that the “great strength” of the common law is its ability “to adapt itself to the differing circumstances of the countries in which it has taken root.” That sentiment resonated as conference speakers drew on examples from across the Commonwealth to demonstrate the shared challenges and distinct social and legal responses in this developing area of law.

Serendipitously, on the same day that the Irish police announced a probe into blasphemous comments by Stephen Fry (the influential actor and QI intellectual), conference speakers in Vancouver were mooting whether in the modern era defamation law might face the same fate as the extinct amatory torts. [NB: Ireland’s gardaí have since dropped their criminal defamation investigation.]

A second theme considered whether the Dicean principle of equality of Crown and citizen under law was breaking down in the area of public authority liability (and whether it ought to). Professors Blom, Feldthusen, and Klar each highlighted the problems in using ordinary negligence principles to develop unique public duties of care in tort. Such actions—which in the United States are often restrained by the Federal Tort Claims Act’s discretionary functions exception or adjudicated as “constitutional torts”—have been described by Justice Stratas as “using a screwdriver to turn a bolt.” Professor Chamberlain, on the other hand, showed that Canada’s penchant for affirmative duties of care is not limited to the public sector and is expanding through duties to those in danger, to the intoxicated, and to problem gamblers.

The UK Supreme Court’s (in)famous decision in Michael v. Chief Constable (finding no duty of care in tort owed by police to 999 emergency callers) received particular attention. Would, or should, Canadian tort law come out the same way?

Michael is a hard case and has raised much consternation. Lord Toulson’s leading judgment invoked the principle of equality in disclaiming a duty of care on police. Since “the common law does not generally impose liability for pure omissions” [97], it could not hold the police liable where an ordinary citizen would not be. Equality under law does not just mean denying the state special immunities in private law actions. It also means eschewing special state liabilities, he reasoned.

Yet in cases of such detrimental reliance (had the police not mishandled Ms Michael’s call, they might have prevented her murder), arguably ordinary negligence principles do found a duty—as Lord Kerr held in dissent, echoing arguments also expressed in Cuffy v. City of New York. Do such cases warrant special protection of police (and their budgets)? Or do they warrant unique duties given the special status and powers of police (as Lady Hale suggested)?

If the lesson from Michael is that special duties should be enforced against public authorities, that seems more properly the domain of public law. Statutory liability provisions, common law judicial review, and human rights frameworks (the Canadian Charter of Rights and Freedoms, the UK Human Rights Act, and the New Zealand Bill of Rights Act) operate specifically to address grievances arising from the state–citizen relationship. The law of tort (and, dare I say it, unjust enrichment) does not. That, indeed, was the holding in Michael: the claim in negligence was dismissed while the right-to-life claim under the European Convention on Human Rights proceeded to trial. Contentious though it was, the Supreme Court’s decision did not deny access to justice.

As these reflections indicate, this was quite a tort-centric conference. In two years’ time, no doubt developments in Canada’s laws of restitution and contract will warrant attention.

On the back of the success of the conference (for which congratulations and thanks go to Professor Margaret Hall and Lachlan Caunt), the University of New Brunswick Law School has been announced as host for 2019. A selection of papers from this year’s conference will also be published in a forthcoming edition of the Supreme Court Law Review.

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