Canadian Comparative Law

An Inquiry into the Exchanges between the Civil Law and Common Law in the Supreme Court of Canada

Introduction

The aim of this project, generously funded by a grant from the Law for the Future fund of the Canadian Bar Association, is to conduct a reconnaissance of the exchanges between the civil law and common law in select contemporary and historic decisions of the Supreme Court of Canada. It has involved surveying how the relationship between the two traditions has been conceptualized and enacted at different moments in the Supreme Court’s history. We ask, for example, what are the predominant conversational trends and how have these changed over the near 150-year history of this “bi-jural” institution? What is distinctive about Canadian comparative law/le droit comparé canadien?

The initial impetus for this inquiry stemmed from the différend between the opinions of Justice Nicholas Kasirer and Justice Russell Brown in CM Callow v. Zollinger,[1] and Wastech Services Ltd v Greater Vancouver Sewerage and Drainage District,[2] cases from the common law jurisdictions of Ontario and British Columbia respectively, concerning the law of contracts. According to Kasirer J. “comparison between the common law and civil law as they evolve in Canada is a particularly useful” exercise for the Court. He continues, “[p]rinciples from the common law or the civil law may serve as a ‘source of inspiration’ for the other … [and as an] opportunity for dialogue”.[3] He goes on to demonstrate how the civil law’s contractual requirement of good faith could aid in better interpreting and applying the duty of honesty in the common law of contracts.

By contrast, Brown J. opined that such an exercise is “unnecessary, ill-advised and wholly misplaced”[4]. According to Brown J., the civil law and common law constitute two “massive jigsaw puzzles … [where] the pieces are cut differently so that pieces from one cannot fit (or at least fit easily) into the other”.[5] Hence, to engage in comparison can only lead to confusion and increase the costs of justice. Only where there is a demonstrable ‘gap’ could such an exercise prove helpful or instructive. Anticipating this objection, Kasirer J. pointed to the difficulty of ascertaining the existence of a gap in the law, and is critical of the very notion of the need to find a gap in order to resort to a consideration of the other legal tradition. 

Justice Kasirer’s position may be characterized as ‘polyjural’, while that of Justice Brown is ‘monojural’.[6] However, this dichotomy is not exhaustive. As our research has revealed, there are many different refractions to the ways in which the relations between the two traditions have been conceptualized and expressed over time. In what follows, we hold up a prism to the judgments of the Supreme Court from its inception in 1875 to the present and attempt to describe the multiple refactions. We proceeded by dividing the caselaw into five periods (1875-1910, 1910-1950, 1950-1980, 1980-2000, 2000-2022) and then sought to identify and analyze the leading cases in comparative law Canadian-style for each period. Certain preliminary conclusions can be drawn on the bass of the 10 case studies (two per period). Please see the sidebar for links to the probes for each of these five periods. We hasten to add that these conclusions are provisional at best, for there remains much work to be done with respect to determining the varieties of comparative private law reasoning in the Canadian setting. For a preliminary attempt at sorting out these varieties, please see Rosalie Jukier and David Howes, “Judicial Dialogues in Mixed Jurisdiction Courts: How Civilian and Common Law Judges Converse on Canada’s Supreme Court,” Journal of International and Comparative Law (forthcoming)

The ‘Canadian Compararive Law’ research team was made up of David Howes (of Concordia University and adjunct professor of McGill University) as Principal Investigator, and Professors Rosalie Jukier and Mark Antaki (both of McGill University), and Alexandra Popovici (University of Sherbrooke) and Catherine Valcke (University of Toronto) as co-investigators, as well as five students in the JD/BCL (or “transsystemic”) program at McGill University: Grace Forster, Joseph Ho, Garima Karia, Mario Michas and Andrea Pavaluca, whose case studies follow.