— Abstracts and Papers

Panel I
Common Law Decision Making on Supreme Courts

Peter Cane: “The Common Law, the High Court of Australia and the United States Supreme Court”

Although the Australian Constitution was, in significant respects, modelled on the US Constitution, the position of the High Court in the Australian system of government is very different from that of the Supreme Court in the US system. This paper will trace the history of the two courts, identify major differences between them, and relate those differences to a distinction between two models of distribution of public power, which I call ‘concentration’ and ‘diffusion’ respectively. Briefly, concentration involves dividing power between separate institutions in  such a way that each can act relatively independently of the others. By contrast, diffusion involves dividing and sharing power between institutions in such a way as to require those institutions to cooperate and coordinate in order to achieve their policy objectives. I will argue that in the Australian system of government, power is much more concentrated than in the US system, and that this difference fundamentally affects the position and role of the ultimate courts in the two systems respectively. In an important sense, the Australian High Court is a ‘common law court’ in a way that the US Supreme Court is not.

Brice Dickson: “Supreme Courts and the Development of the Common Law”

This paper considers two inter-connected trends in the recent jurisprudence of a selection of common law Supreme Courts. The first is the narrowing of the category of non-justiciable issues, the effect of which is that Supreme Courts are now adjudicating upon issues which previously would have been deemed not ‘legal’ enough to justify their involvement. The second is the increase in the creation and development of multi-factorial tests for deciding legal disputes, many of which are now resolved on the basis of what the judges consider to be ‘reasonable’ or ‘just’. Each of these trends seems evident in both the public and private law spheres. As regards the former, top judges are increasingly being required to deal with challenges to all kinds of actions and proposed actions of public bodies; when dealing with these challenges the judges sometimes come perilously close to substituting their own preferred course of action for that chosen by the public body concerned, though they claim to be adhering to the line that judicial review of administrative action is focused only on procedural irregularities and not on the merits of the action. As regards private law, judges are making greater use than ever of flexible standards based on the weighing of a number of factors which bear on whether an outcome is ‘fair’, broadly construed. This is particularly apparent in both contract law and tort law, but there are instances of it in other fields too, such as family law. The principal positive consequence flowing from the two trends identified in this paper is that judges have to work harder than ever to justify their decisions, thereby enhancing the transparency of the judicial process. The principal negative consequence is that lawyers, business people and the public at large are much less certain than in the past as to where exactly they stand under the law.

James Lee: “Against All Odds: Numbers Sitting in the UK Supreme Court and Really, Really Important Cases”

This paper considers the United Kingdom Supreme Court’s practice of sitting in enlarged panels. Compared to other common law top courts, the UK Supreme Court is unusual is never sitting en banc. Instead, the usual number of judges per appeal is five, out of a maximum of twelve members of the court. The Court has published criteria for when considering to sit with a panel of seven or nine (by statute, the Court must have an odd number of Justices in any appeal):

“If the Court is being asked to depart, or may decide to depart from a previous decision.

A case of high constitutional importance.

A case of great public importance.

A case where a conflict between decisions in the House of Lords, Judicial Committee of the Privy Council and/or the Supreme Court has to be reconciled.

A case raising an important point in relation to the European Convention on Human Rights.”

In the paper, I study the Supreme Court’s seven and nine Justice decisions and argue that the pattern of decision-making leads to one negative and two and a half positive conclusions. On the negative, the peculiar workload and role of the UK Supreme Court, and the continuing role of the Privy Council, means that the continued practice of sitting in panels of five is justifiable.

As for the positives, first, it is necessary to reconsider the criteria for larger panels, because the current approach seems erratic as between different cases, especially as to the criterion of ‘importance’ (or possibly various different kinds of important). It is, for example, bizarre that the appeal in R v Jogee, a seminal appeal on joint enterprise and which sees the UK Supreme Court for the first time hear an appeal from the Privy Council alongside an English appeal, has only five judges (albeit including the President and Deputy President of the Supreme Court and the Lord Chief Justice). The related ‘half-conclusion’ is that first conclusion, which is that perhaps there needs to be revision of the granting of permission to appeal in the first place – the current criteria for seven/nine panels ought arguably to be applicable to any case for which permission should be granted to appeal to the highest court in the jurisdiction. The second main conclusion is that, in many enlarged panel cases, the Court has been convened to reconsider a precedent, only then to reaffirm the existing authority: what I call ‘false alarm’ cases. This line of cases suggests that the Justices need to refine their jurisprudence of overruling, and my paper aims to assist with that endeavour.

Carissima Mathen: “The advisory function and common law constitutionalism”

The preamble to the 1867 Canadian confederation document states the intention of the founding colonies to form a union similar in principle to that of the United Kingdom.   As a result, the Canadian constitution has embraced both written and unwritten elements. While, especially after 1982, Canada’s constitution came to be identified with specific textual guarantees, unwritten constitutional principles and political conventions continue to play an important role.  Canadian courts have assumed chief responsibility for interpreting both the written and unwritten constitution.  In their dramatic exercise of judicial review, Canadian courts resemble and at times even exceed the formidable U.S. courts.  But an important English tradition remains: the advisory function.  Canadian courts regularly provide advice to governments on a variety of legal questions.  This advice – rendered through reference opinions – has dealt with some of the most important issues in the Canadian constitutional order including amendment, secession and the status of the Supreme Court.   While technically non-binding, they are treated as having the status of law.  In this paper, I will consider the parallels that can be drawn between a robust advisory function and the constitutive elements of common law constitutionalism; the extent to which the concepts engage the same sorts of concerns; and the challenges they raise for courts.

Panel II
Common Law Constitutionalism on Supreme Courts

Bob Williams

Three points will be covered in the presentation. First, a demonstration that state courts actually began judicial review long before Marbury v. Madison. Second, a demonstration that state courts are freer about judicial review because of the fact that they generally have more generous standards of justiciability.  State courts have very weak standing and mootness requirements which means that almost any plaintiff can get before them. Third, a demonstration that state supreme courts have a stronger adherence to precedent than the US Supreme Court.  This is because the US Supreme Court is the final authority and it is very hard to alter the federal constitution. Thus, when the SCT sees that its precedent is erroneous or no longer fit for purpose it changes it.  State supreme courts, on the other hand, usually dig in their heels because state constitutions are relatively easy to amend and are amended quite regularly.  So, state supreme courts generally hold their ground leaving the people to change the constitution if they think the court gets it wrong.

Audrey Macklin: “Common Law Constitutionalism on the Supreme Court of Canada”

The idea of common law constitutionalism and its content have shifted over time.  My paper will compare four cases that might plausibly be described as expressive of common law constitutionalism in order to inquire into the stability of the concept: The first is Roncarell v. Duplessis, which is often presented as an exemplar of rights protection located in an ‘unwritten constitution’.  I will next examine the Baker v. MCI, in which an explicit disavowal of the Charter’s application opens space for a rights-oriented infusion of individual protections in relation to procedural fairness and discretion. I will next juxtapose Multani v. Commission scolaire Marguerite-Bourgeoys, against Loyola High School v. Quebec.  The first illustrates a segregated approach to rights adjudication, in which administrative law retains its (relatively thin) rule of law function, while the Charter does the heavy lifting in relation to fundamental rights.  Loyola, on the other hand, represents the more recent attempt to integrate the common law constitutionalist impulse with explicit rights adjudication under the Charter. Through these encounters with the past and present evolution of common law constitutionalism, I will conclude by posing questions about its future.

Jason Varuhas: “Snakes and Ladders: the UK Supreme Court and the New Common Law Constitutionalism”

During the 1990s UK courts showed an interest in reorienting common law judicial review away from its traditional focus on regulation of public power for the common good towards ideas of fundamental individual rights, largely due to pressure to ensure the UK complied with obligations under the European Convention on Human Rights. Following the entry into force of the Human Rights Act 1998, which made certain Convention rights actionable in domestic law, UK courts cooled their interest in recalibrating common law review around “rights”; there was no longer any need to do so. However, over the last two years UK public law has entered a state of flux with the Supreme Court showing renewed interest in “righting” or “constitutionalising” common law judicial review, and reasserting the priority of common law review vis-à-vis other public law fields. The paper will first examine the causes of this development. Second, the paper will analyse the dynamics of this new wave of common law constitutionalism. The Justices are far from united as to how the law should develop. Some judges would align human rights law (and EU law) and common law review, but differ in how this should be achieved. One group, enthusiasts of common law constitutionalism, would “level up” common law judicial review, so that its norms and methods largely mirror those under the HRA. Another group would “level down” human rights law, so that its norms and methods largely mirror those in common law review. Others take a more enlightened view, recognising that common law review and human rights law perform different functions and that each field is and ought to be legitimately characterised by its own distinct norms and methods.

Han-Ru Zhou: The Continuing Significance of Dr. Bonham’s Case

Dr Bonham’s Case stands as one of the most iconic cases in the common law world. More than four centuries after Coke CJ famously stated that the common law controls Acts of Parliament, it may yet still help better understand some of the more recent contentious constitutional developments in common law-based systems. In particular, over the past few decades, several national supreme courts have conducted judicial review of legislation on the basis of so-called implied or “unwritten” constitutional principles. As these principles, by definition, are not formally expressed in the national Constitutions, such a use of them runs against the conventional view that the exercise of judicial review must be based on the terms of the Constitution. However, the judicial uses of implied constitutional principles may have a stronger connection with Bonham than it has been assumed so far. Rather than examining Bonham solely for the purpose of determining its original meaning, a question which remains controversial to this day, the significance of Bonham can be (re)conceived by incorporating the historical inquiry into an account of its influence in modern common law-based constitutional systems. Such an account would have been carved out of successive interpretations of Bonham over time in different contexts as constitutions develop and adapt to the relevant changing circumstances. In this respect, Bonham’s significance in modern constitutionalism would also depend on how we will have reappropriated it as other iconic laws and cases can be (and have been) reappropriated likewise by successive generations of jurists.

Panel III
Common Law Concepts on Supreme Courts

Angela Swan (with Jakub Adamski): “The Development of an Obligation to Perform in Good Faith”

In contrast to the law in both civilian legal systems and in the United States, common law courts in Canada and England have had great and surprising difficulty in accepting that a doctrine of good faith performance of contractual obligations could exist.  As one of us has said (and as the Supreme Court noted), “[t]he traditional common law took a kind of perverted pride in the claim that it had no general notion of good faith, as if admitting that the law could be founded in “good faith” would be admitting to the presence of some kind of embarrassing social disease”.  Not far off 30 years to the day after that statement was published, the Supreme Court in Bhasin v. Hrynew finally recognized that there is a “general organizing principle” of good faith performance in Canadian common law.

The paper will explore the path taken by Canadian (and to a much lesser extent) by English courts in coming finally to the position Canada has now reached.  That pattern shows several things, the difficulty courts and commentators have had in seeing the wood for the trees, in having the courage to recognize that what was done does have to be what is always done, and in formulating what may be perceived to be a major change in the law in a way that offers guidance to solicitors, barristers and other courts.

An important aspect of the paper will be an exploration of the extent to which the final acceptance of a duty of good faith performance can be seen as a consequence of statutory changes that have occurred over the last several decades.  In particular, Canadian courts have had to become familiar with the oppression remedy under Canadian Business Corporations Acts which is triggered by conduct “that is oppressive or unfairly prejudicial to” a complainant — surely a description of conduct that is not done in good faith!  Similarly, both in the drafting of legislation like the Securities Acts of the provinces and in the rule- and decision-making powers of provincial Securities Commissions, concepts like “good character” and “conduct unbecoming” have become important tools for imposing on the participants in the securities industry or Canadian capital markets, standards which can clearly be seen as other examples of obligations to perform in good faith.  In short, Canadian court have acquired the habit and have become comfortable in evaluating complex business relations on basis of general standards of conduct and, what is even more important, the business community has accepted this role and the results the courts have reached.

When the common law, statutory and regulatory backgrounds to a case like Bhasin v. Hrynew are examined, the decision can easily be seen to be both unexceptional and the natural consequence of habits of thought and criteria of behaviour now found and applied widely in Canadian law.

The final part of the paper will be an examination of the possibility that an obligation to negotiate in good faith will soon exist.

Bruce Ziff: “The Supreme Court, Fundamental Principles of Property Law, and the Shaping of Aboriginal Title”

Since the enactment of the Constitution Act, 1982, the Supreme Court of Canada docket has largely consisted of public law cases.  There has been a corresponding dearth of private law jurisprudence emanating from the Court, particularly in relation to fundamental property law doctrines. However, the Court has issued a series of landmark rulings concerning Aboriginal title, the most recent being Tsilhqot’in Nation v. BC (2014).  In this paper I address two prominent aspects of the Supreme Court’s approach to those cases. First, it has been repeatedly recited that Aboriginal title is sui generis (unique), so that one must not necessarily assume that conventional common law doctrines apply. Second, with that caution in place, the Supreme Court has on occasion drawn on analogies from the general law of property as a guide to defining the contours of Aboriginal title.

In this paper, I interrogate both of these elements. I argue that the idea that Aboriginal title is sui generis conceptually problematic, and hence of limited value. That is due in part to the fact that in Canadian law there is no firm idea of what constitutes the irreducible core of property rights. As will be shown, the Supreme Court has never engaged that issue in a serious way. In addition, I will demonstrate that the Court’s use of common law property concepts as analogues in the shaping of aspects of Aboriginal title has been flawed. The result has been to obscure not delineate the rights and powers associated with Aboriginal title as well as the basis upon which title can be proven.

Sandy Steel: “Cause and the Courts”

Supreme Courts across the Common Law have been faced with the question of whether any departure should be made from the rule that claimant must prove, on the balance of probabilities, that the defendant’s wrongful conduct was a cause of the claimant’s injury in order to obtain compensation from the defendant for that injury. In this paper, I briefly set out and taxonomise the kind of arguments which have been offered across the Common Law for doing so. Having isolated the most plausible of these arguments, the main part of the paper addresses whether any of them, assuming their validity, face what might be termed ‘institutional’ objections – objections which do not take issue with the validity of the arguments in question, but state that the courts are not appropriate institutions for giving legal effect to them. The paper argues that these objections are not compelling. In doing so I hope to shed light on the following general questions: (I) the extent to which courts should depart from fundamental common law doctrines, (ii) the extent to which the distinction between ‘policy’ and ‘principle’ assists in delimiting the appropriate domain of common law adjudication; (iii) the extent to which likely legislative responses to court decisions should play a role in those decisions.

Steve Hedley: “Restitution in Common Law Supreme Courts”

What is the law of restitution for? Two purposes are frequently mentioned in the literature. To some, the object is to impose some sort of intellectual order on a rather unruly set of liabilities that fall outside the traditionally important categories of private law, such as contract tort and property. To others, the object is to provide justice in some types of cases where the law has not yet caught up with what justice requires. Unfortunately, while these two goals are not actually incompatible with one another, they are certainly often at cross-purposes: it is often hard to square the need to stabilise the law with the need to have it reflect changes in values. A further complicating factor is the relation between restitution and other legal institutions that can be said to have similar goals, such as equity; and their relations with legislatures, which in principle should have the job of keeping the law in line with modern values (and indeed may have a better handle than the courts on what those values actually are) but for many reasons do not always do so, particularly in matters of detail. In this maelstrom of competing values, what is the role of supreme courts in developing the law of restitution?  Different common law supreme courts have struck very different balances here, partly through their own choice, but also partly for reasons outside the courts’ control (such as the type of cases that are brought before them). Ultimately the question is: when should the supreme courts focus on the need for clarity and principle in the law, and when are they entitled to innovate to satisfy their view of fairness?

This content has been updated on 12 August 2016 at 17 h 07 min.