By Samuel Beswick, Frank Knox Memorial Fellow, SJD candidate, Harvard Law School
On May 10 and 11, the University of New Brunswick Faculty of Law hosted the second biennial Canadian Law of Obligations (CLO) conference. Legal scholars from across Canada, as well as the United States and England, presented their works-in-progress on the theme of Obligations and Access to Justice.
Whereas 2017’s conference at UBC in Vancouver grappled with modern developments in tort law, this year contracts took the spotlight. The problems of imputing meaningful consent in online click-wrap agreements that nobody reads; of challenging arbitration and anti-class action clauses that are routinely buried in standard terms and conditions; and of understanding why and when terms may be unenforceable for unconscionability—these all implicate access to justice and were the subject of lively discussion.
This year’s conference had two keynote speakers: the distinguished contracts practitioner and professor Angela Swan, and Shannon Salter, the Chair of British Columbia’s new Civil Resolution Tribunal. Professor Swan, delivering an address titled “It Matters How You Start to Think about a Contracts Problem,” spoke to the theory and doctrine of contracts. Following the influence of the Relational Contract Theory developed by the Scottish-American Professor Ian Macneil, Professor Swan challenged the audience to recognize the gulf between contracts as experienced by people and practitioners and the contract law found in scholarship—setting out illustrations that traversed the doctrines of consideration, to good faith, to implied terms.
Ms Salter, in the following day’s keynote, built upon this law-in-practice theme with a presentation on British Columbia’s new technology-assisted small claims tribunal. The BC Civil Resolution Tribunal (CRT) is the first online disputes tribunal in the Canadian justice system and has quickly become a model for civil justice reform. Ms Salter attributed the Tribunal’s success to their commitment to ensuring it works from the ground up for everyday people. So intuitive and minimalist online questionnaires have replaced tricky court forms. Discovery and evidence production has been stripped back. And everything—from filing a claim, to engaging in negotiation and mediation, to pursuing an enforceable judgment—can be done through a cellphone via web-browser or Skype. Not everybody agrees that the CRT improves access to justice, mind. The Trial Lawyers Association of British Columbia is currently challenging the CRT’s jurisdiction over most motor vehicle accidents, claiming that removing such cases from the Provincial Court violates the Canadian Charter of Rights and Freedoms. A hearing and decision on that issue is hotly anticipated.
Particular highlights of the CLO conference for me include:
- Marina Pavlović’s analysis of a consumer arbitration clause she discovered taped to the inside of her newly-purchased refrigerator.
- Jason MacLean’s reflections on his own pedagogical approach to teaching first-year contracts, and his efforts to balance imparting doctrine and principle with critical reflection on contract-in-practice to a student audience who have grown up experiencing contract as an impenetrable click-box.
- Jane Thomson’s analysis of the Ontario Court of Appeal’s judgment in Spence v BMO Trust, which has curbed a unique public policy doctrine that Canadian courts have long invoked to re-write discriminatory scholarship conditions and to set aside overtly racist wills and residual bequests to foreign neo-Nazi organizations.
- And a paper by recent JD graduate Colleen Thrasher, who gave a compelling presentation on how, in suits for negligently inflicted psychiatric injury, the judicial inquiry into whether “it was foreseeable that a person of ordinary fortitude would suffer serious injury” is often unnecessary, confuses the remoteness test, and—most troublingly—stigmatizes vulnerable plaintiffs.
The second CLO conference was a memorable event and credit is due to its convener, Professor Hilary Young. A selection of papers that were presented are to be published in a forthcoming edition of the Supreme Court Law Review. With Obligations X coming to Harvard in July 2020, and CLO 2021 to be hosted by the uOttawa Faculty of Law, this is an engaging time to be doing private law in North America.