Harrison V. Carswell (1975), 62 D.L.R. (3D) 68 (S.C.C.)

Contents

Big v Small Ideas

Harrison v. Carswell (1975), 62 D.L.R. (3d) 68 (S.C.C.)

Neal Gabler, “The Elusive Big Idea” 2011

Private Law and Public Interest

K.L.B. v British Columbia [2003] 2 SCR 403

Bazley v. Curry [1999] 2 SCR 534

Dobson v Dobson [1999] 2 SCR 753

Daniel A. Farber and Philip P. Frickey ‘In the Shadow of the Legislature: The Common Law in the Age of the New Public Law’

The Common Law Moment (Contracts)

Hadley v. Baxendale 9 Exch. 341, 156 Eng.Rep. 145 (1854)

Transfield Shipping Inc v. Mercator Shipping Inc [2009] 1 AC 61

L.L. Fuller and William R. Perdue, Jr., “The Reliance Interest in Contract Damages: 1” (1936) 46 Yale L.J. 52

The Common Law Moment (Tort)

Donoghue v. Stevenson [1932] AC 562

Percy Winfield, ‘Chapter 3: Tort Defined’ in The Province of the Law of Tort (Cambridge: University Press, 1931) pp. 32-39

McPherson v BuickMotor Co. (1916) 217 NY 382, 111 N.E. 1050

The Common Law Moment (Tort) Lost

Chester v. The Council of the Municipality of Waverley (1939) 62 CLR 1

Karl N. Llewellyn The Bramble Bush; on our law and its study (New York,Oceana Publications,1951) pp. 58-69

David J. Ibbetson A Historical Introduction to the Law of Obligations (Oxford:Oxford University Press,1999) pp.188-196

Interpreting Donoghue

Candler v. Crane Christmas & Co [1951] 1 All ER 426 (C.A.)

Hedley Byrne v. Heller [1964] AC 465

Home Office v. Dorset Yacht Co. Ltd. [1970] AC 1004

Cass R. Sunstein, ‘On Analogical Reasoning’ (1993) 106 Harv. L. Rev. 741

Proximity and the problem of pure economic loss

Rivtow Marine Limited v. Washington Iron Works [1974] SCR 1189

Kamloops v. Nielsen [1984] 2 SCR 2

John P. S. McLaren: ‘The Dickson Approach to Liability in Tort’ in DeLloyd J Guth (ed.) Brian Dickson at The Supreme Court of Canada 1973-1990(Winnipeg: Canadian Legal History Project, 1998)

Proximity and the problem of pure economic loss

Winnipeg Condominium Corp no 36 v. Bird Construction Co. [1995] 1 SCR 85, 121 DLR (4th) 193

Hercules Management v. Ernst & Young [1997] 2 SCR 165

Desmond Manderson, Proximity, Torts and the Soul of Law (Montreal: McGill-Queen’s University Press, 2006) Chapter 5 Parts II and III

Proximity and Pure Economic Loss: Setting Limits

D. & F. Estates v. Church Commissioners [1989] 1 AC 177

Murphy v. Brentwood [1991] 1 AC 398

Carl F. Stychin ‘Dangerous Liaisons: New Developments in the Law of Defective Premises’ (1996) 16 Legal Studies 387

Proximity and Relational Economic Loss

Canadian National Railway v. Norsk Pacific Steamship Co. [1992] 1 SCR 1021

Bow Valley Husky (Bermuda) Ltd v. Saint John Shipbuilding Ltd [1997] 3 SCR 1210

Cooper v. Hobart (2001) 3 SCR 537

Beverly M. McLachlin ‘Evolution of the law of private obligation: The Influence of Justice La Forest’ in R. Johnson et. Al. (eds) Gérald V La Forest at the Supreme Court of Canada, 1985-1997 (Winnipeg: Canadian Legal History Project, Faculty of Law, University of Manitoba, 2000)

Conflict, Choice and Convergence: The Tort and Contract Nexus

BG Checo International v. BC Hydro and Power Authority [1993] 1 SCR 12

Henderson v. Merrett Syndicates Ltd [1995] 2 AC 145

John G. Fleming ‘Tort in a Contractual Matrix’ (1995) 33 Osgoode Hall L.J. 661

Who is a Fiduciary?

Canadian Aero Service Ltd. v. O'Malley [1974] S.C.R. 592

Galambosv.Perez, [2009] 3 S.C.R. 247

Paul B. Miller, “A Theory of Fiduciary Liability” (2011) 56:2 McGill LJ 235

How close? Fiduciary obligations in the Commercial Context

Lac Minerals Ltd v. International Corona Resources Ltd [1989] 2 SCR 574, 61 DLR (4th) 14

Cossman and Hoffstein ‘Disputes Involving Trusts: The Canadian Experience’ in (ed) Nedim Peter Vogt Disputes Involving Trusts (Basel:Helbing & Lichtenhahn, 1999) pp 45-50, 74-78

Unjust Enrichment

Deglman v. Guaranty Trust Co. of Canada, [1954] S.C.R. 725, [1954] 3 D.L.R. 785.

Peel (Regional Municipality) v. Canada; Peel (Regional Municipality) v. Ontario, [1992] 3 S.C.R. 762

Garland v. Consumers’ Gas Co., [2004] 1 S.C.R. 629

Lionel Smith, “Demystifying Juristic Reasons” (2007) Can Bus. L.J. 281

Constructive Trusts

Pettkus v. Becker, [1980]2 S.C.R. 834

Soulos v. Korkontzilas, [1997] 2 S.C.R. 217

Tracy v. Instaloans Financial Solution Centres (B.C.) Ltd. [2010] 9 W.W.R. 11, 320 D.L.R. (4th) 577 (BCCA)

Robert Chambers, 'Constructive Trusts in Canada' (1999) 37 Alta.L.Rev. 173

Expert evidence

Frye v. United States (1923) 293 F. 1013 (CA, D.C.)

Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579

R v. J [2000] 2 S.C.R. 600

Stephen Breyer, “The Interdependence of Science and Law” (1998) 82 Judicature 24

Proximity and Relational Personal Loss

Rhodes v Canadian National Railway (1990) 75 DLR (4th)

Shauna Van Praagh, “Who Lost What?: Relationship and Relational Loss” (2002) 17 Sup. Ct. L. Rev. (2d) 269

Judicial style and the extension of principle

Miller v. Jackson (1977) Q.B. 966

Desmond Manderson, Proximity, Torts and the Soul of Law (Montreal: McGill-Queen’s University Press, 2006) Chapter 4 Parts III and IV

Dennis R. Klinck ‘This Other Eden: Lord Denning's Pastoral Vision’ (1994) 14 Oxford Journal of Legal Studies 25-55

Richard Posner ‘Cardozo’s Judicial Technique’ in Cardozo: A Study in Reputation (Chicago: Chicago University Press, 1990)

Benjamin N. Cardozo ‘Lecture III: The Method of Sociology. The Judge as Legislator’ in The Nature of the Judicial Process (New Haven: Yale University Press, 1921) pp. 102-115

Creativity and change

Lord Devlin, ‘Judges and Lawmakers’ [1976] Modern Law Review 1

Lord Goff, ‘The Future of the Common Law’ (1997) 46 Int’l & Comp. L.Q. 745

1

Big v Small Ideas

Harrison v. Carswell (1975), 62 D.L.R. (3d) 68 (S.C.C.)

Facts

• Employee of a tenant in a shopping centre participated in a lawful strike
• Picketed peacefully on the sidewalk in front of the tenant’s premises
• Employer took no action to prohibit the picketing
• Shopping centre owner told the picketer that picketing was not permitted in any area
• Owner charged her under the Petty Trespasses Act

Issue

• Whether a shopping centre owner can have sufficient of a sidewalk to support a charge of trespass
• Did the owner divest itself of possession so as to make the shopping centre sidewalk a public way upon which there could be no trespass
• Discussion about the eternal tension in common law courts between deference to stare decisis and whether the court can adapt and evolve judge-made law in the face of changing realities and potent policy reasons

Reasoning
Laskin’s dissent

• A similar case is Peters
• Picketing in a shopping centre
• Picketing caused by a boycott, not a labour dispute
• Laskin hopes to free himself from the shackles of precedence by narrowing the precedence set in the Peters case
• “The Peters case is neither in law nor in fact a controlling authority for the present case, but it will enable the Court to consider both law and fact as it deals with the specific case at hand; the position of a shopping centre owner and of the lawful picket in a legal strike
• Statement against blind adherence to precedence
• “This Court cannot be simply mechanistic about previous decisions…If we were to say that the Peters case decides this case, we would be to take merely one side of a debatable issue and say that it concludes the debate without the need to hear the other side.”
• The Court is free to depart from previous decisions in order to support the pressing need to re-examine current cases
• “This Court has not shown itself to be timorous in tackling important where it could be said that an important consideration was absent from an earlier judgment, upon which reliance was placed to foreclose examination of a similar issue in a subsequent case
• This case turns upon the ancient legal principle of trespass
• “To say in such circumstances that the shopping centre owner may, at his whim, order any member of the public out of the shopping centre on penalty or liability for trespass if he refuses to leave, does not make sense if there is no proper reason in that members conduct or activity to justify the order to leave.”
• The considerations which underlie the protection of private residences cannot apply to the same degree to a shopping centre in respect of its parking areas, roads and sidewalks
• Those amenities are closer in character to public roads and sidewalks than to a private dwelling
• To assimilate them to private dwellings is to urge that if property is privately owned, no matter the use to which it is put, trespass is as appropriate in the one case as in the other and it does not matter that possession is present or not
• This is a use of theory which does not square with economic or social fact under the circumstances of the present case
• Why does the shopping centre owner invoke trespass?
• There is no challenge to title nor possession
• No challenge to privacy when members of the public use those amenities
• Should he be allowed to choose what members of the public come into those areas when they have been opened to all without discrimination?
• Shopping owner contends that it is unnecessary that there be a reason that can stand rational assessment for him to invoke the right of trespass
• “Can the common law be so devoid of reason as to tolerate this kind of whimsy where public areas of a shopping centre are concerned?”
• The present case involves a search for an appropriate legal framework for new social facts which up the inaptness of an old doctrine developed upon a completely different social foundation
• The Court will draw lines here as it does in other branches of the law as may be appropriate in the light of the legal principle and particular facts

Dickson for the Majority

• “I find it difficult, indeed impossible, to make any well-founded distinction between case and Peters.”
• “This case and the present came to us on much the same facts, picketing within a shopping centre in connection with a labour dispute
• “There has been no suggestion that Peters was wrongly decided; therefore, I would think it must be regarded as controlling unless it can properly be distinguished from this case.
• What is the role of the Court when dealing with important and difficult political and socio-economic issues?
• The resolution of these issues, by their nature, will be arbitrary and embody personal economic and social beliefs.
• The duty of the Court is to proceed in the discharge of its adjudicative function in a reasoned way from principled decisions and concepts
• “I recognize without hesitation that judges do and must legislate, but they can do it only interstitially; they are confined from molar to molecular actions.”
• “The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles.
• “It is one thing for a court to seek to extend the application of accepted principles to new cases or to reason from the…settled legal principles to new conclusions…”
• It is an entirely different thing for a judge who is discontented with a result held to flow from a long accepted legal principle deliberately to abandon the principle in the name of justice or of social necessity or of social convenience.”
• “If there is to be any change in this statute law, it would seem to me that such a change must be made by the Legislature, which is representative of the people and designed to manifest the political will, and not by this Court.”

Ratio

• Two common themes that we will continue to see this year
• Role of the court v role of the legislator
• Adherence to precedence v distinguishing from precedence

Neal Gabler, “The Elusive Big Idea” 2011

• “We are living in an increasingly post-idea world
• A world in which big, thought-provoking ideas that can’t instantly be monetized are of so little intrinsic value that fewer people are generating them and few outlets are disseminating them”
• Many reasons for this retreat from ideas:
• “There is the retreat in universities from the real world, and an encouragement of and reward for the narrowest specialization rather than for daring – tending plotted plants rather than planting forests”
• The real cause may be information itself:
• “In the past, we collected information not simply to know things. That was only the beginning. We also collected information to convert it into something larger than facts and ultimately more useful- into ideas that made sense of the information.
• “We should not just to apprehend the world but to truly comprehend it, which is the primary function of ideas.”
• But now, we are inundated with so much information that we wouldn’t have time to process it even if we wanted to.”
• Trivial information is pushing out significant information
• Information, trivial or not, is pushing out ideas
• We prefer knowing to thinking because knowing has more immediate value
• It keeps us in the loop, keeps us connected to our friends
• We have become information narcissists
• We are reducing our arguments, theories and dissertations to 140-character tweets
• The gab of social networking tends to shrink one’s universe to oneself and friends
• There is a vast difference between profit-making inventions and intellectually changing thoughts
• While these ideas may change the way we live, they rarely transform the way we think

Private Law and Public Interest

K.L.B. v British Columbia [2003] 2 SCR 403

Facts

• Children suffered abuse in both foster homes; humiliated and felt worthless
• Prior to foster home placement, government ministers had interviewed the first foster parent
• Her report stated that she was dishonest and insincere about what went on in her home
• Report had warning that placements should only be made in her home on a short-term basis
• Social workers disregarded the reports as they felt it was more important to keep the children together and this was the only home where this could happen
• Children’s unhappiness was not probed by social workers during their infrequent visits
• Children eventually permanently moved to another foster home
• As there were no record exchanges between provinces, social workers did not know that foster parent had been denied placements in Alberta as he had drugged a kid
• Social workers were not aware that foster parent had their foster children removed after they had hit a foster child with a knife
• Social workers did not read the little file information they had on foster parents
• They did not ask the foster parents about their history as foster parents
• Children were sexually abused and assaulted
• After six weeks, social workers assumed all was well and stopped regular visits
• Children removed after one of them told mother that they had welts from being whipped

Issue

• Is there any legal basis on which the government could be held liable for the harm that the appellants suffered in foster care?
• Issues of negligence, vicarious liability, non-delegable duty and fiduciary duty arise here

Reasoning

• 4 possible scenarios of liability on the government
• Direct negligence
• Vicarious liability for the tortious conduct of the foster parents
• Breach of non-delegable duty
• Breach of fiduciary duty
• Direct negligence
• Direct negligence, when applied to legal persons such as bodies created by statute, turns on the wrongful actions of those who can treated as principal organs of that legal person
• Causation should be assessed under a robust and pragmatic approach
• Causation need not be determined with scientific precision
• Common sense approach sensitive to the realities of the situation
• Government had a duty under the Protection of Children Act to make such arrangements for the placement of a child in a foster home “as will best meet the needs of a child”
• Imposes a high standard of care
• “Careful parent test” imposes the standard of a prudent parent solicitous for the welfare of his or her child
• Holds government responsible for harm sustained by children in foster care, if it was reasonably foreseeable that the government’s conduct would expose these children to harm of the sort that they sustained, judged by the standards of the day
• Reasonable foreseeable for some people, if left in charge of children in difficult or overcrowded circumstances, will use excessive physical and verbal discipline
• Reasonably foreseeable that some people will take advantage of the complete dependence of children in their care, and will sexually abuse them 
• Government negligently failed to meet this standard and the negligence was causally linked to the physical and sexual abuse
• No proper screening and monitoring procedures to lessen the likelihood of abuse

• Vicarious Liability
• Does not require tortious conduct by the person held liable
• Liability imposed on the theory that the person may properly be held responsible where the risks inherent in his enterprise materialize and cause harm, provided that liability is both fair and useful
• Plaintiffs must demonstrate two things:

1. Relationship between tortfeasor and the person against whom liability is sought is sufficiently close as to make a claim for vicarious liability appropriate
2. Tort is sufficiently connected to the tortfeasor’s assigned tasks that the tort can be regarded as a materialization of the risks created by the enterprise

• Was the government’s relationship with the foster parent sufficiently close?
• Most common vicarious liability relationship is that of employer/employee
• Serve policy purpose of fair and effective compensation and deterrence of future harm
• “It is fair that the person or organization that creates the enterprise and risk should bear the loss.”
• Vicarious liability will have no deterrent effect where the tortfeasor is too independent for the organization to be able to take any measures to prevent such conduct
• Functional inquiry: “Whether the person how has been engaged to perform the services is performing them as a person in business on his own account.”
• Relevant factors: level of control the employer has over the worker’s activities
• Unjust to impose vicarious liability for a tort committed in pursuit of the tortfeasor’s own private purposes
• Unjust to impose vicarious liability for conduct that could not have been influenced or prevented by vicarious person
• Government is not vicariously liable!
• Foster families serve a public goal
• Discharge this public goal in a highly independent manner, free from close government control
• Foster parents have complete control over the organization and management of their household
• They alone are responsible for running their home
• Government does not supervise or interfere, except to ensure that the child and foster parents meet regularly with their social workers, and to remove the child if his or her needs aren’t met
• Independence of the foster family is essential to the government’s goal of providing family care
• In their daily work, foster parents are not acting on behalf of the government, nor are they perceived to be
• Parents do not hold themselves out as government agents in daily activities
• Government liability is unlikely to result in heightened deterrence
• Imposition of vicarious liability can do little to deter what direct liability does not already deter

• Breach of a non-delegable duty
• Idea that a person who delegates work to another person may be held responsible for torts committed by that person in executing the work
• “Where a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else
• No general, guiding principles, but there are instead special situations recognized as such
• Lewis v British Columbia
• Highways Act found to place non-delegable duty on government to ensure that maintenance work on the highways was performed with reasonable care
• Statute gave Ministry paramount authority over highway maintenance and required it personally to manage and direct maintenance projects
• Rendered Ministry ultimately responsible for ensuring reasonable care taken
• Minister held liable for the negligence of its independent contractors, and could not raise the defence that it had delegated the responsibility for taking due care to them
• In the case at hand, the Act does not suggest that the Ministry is responsible for directing day-to-day care and for ensuring that no harm comes to the children in the course of this care
• No personal responsibility set out after placement of child
• Breach of Fiduciary Duty
• Relationship between the government and foster children is fiduciary in nature
• Parents also owe a fiduciary duty to children in their care
• Guardians owe a fiduciary duty to their wards
• Foster children are doubly vulnerable
• Children
• Difficult pasts and the trauma of being removed from their birth families
• Superintendent has considerable power over vulnerable children, and his placement decisions and monitoring may affect their lives and well-being in fundamental ways
• A fiduciary obligation to promote the best interests of foster children while in foster care cannot be implied from the statute
• Statute has a clear intent for the children to be nurtured in a private home environment
• Eliminates government’s capacity to exercise close supervision
• At common law, parental fiduciary duty has been described in narrow terms, as a duty to avoid certain harmful actions which find their origin in parents abandoning and abusing the position of trust they hold with respect to their children
• Parents should try to act in the best interests of their children, however failure to meet this goal has become an independent ground of liability
• This would create a form of results-based liability, rather than liability based on faulty actions and omissions
• Obligation would be breached whether the result was that the best interests of the child were not promoted
• Does not provide parents with a workable standard to regulate their conduct
• Goal of promoting child’s best interests is larger than the concerns of trust and loyalty central to fiduciary law
• Central tenant of fiduciary duty is breach of trust, emphasis on disloyalty and promotion of one’s own or other’s interest at the expense of the beneficiary’s interest
• One party exercises power on behalf of another and pledges himself or herself to act in the best interests of the other
• Negligence will not ground fiduciary liability unless associated with breach of trust
• No bread of fiduciary duty by the government
• No evidence government put its own interests ahead of the foster children
• No acts committed that harmed children in a way that amounted to betrayal of trust
• Superintendent’s misconduct was negligence, not disloyalty or breach of trust

Arbour’s dissent on vicarious liability