Western Law

TLRG at Inaugural Canadian Law of Obligations Conference

On May 5-6, 2017, three members of Western Law’s Tort Law Research Group, Erika Chamberlain, Jason Neyers, and Zoë Sinel, presented papers at the Canadian Law of Obligations: Innovations, Innovators, and the Next 20 Years at the Peter A. Allard School of Law at the University of British Columbia in Vancouver. The conference honoured the retirement of Professor Joost Blom from UBC’s faculty and was held in recognition of Professor Blom’s contributions to the Canadian law of obligations and legal education.

Professor Chamberlain’s paper, “Explaining Canada’s Penchant for Affirmative Duties of Care,” examined Canadian courts’ innovative stance on affirmative duties over the last five decades, and looked to areas where it might continue to develop in the future. In contrast to other Commonwealth jurisdictions, which have placed greater stress on personal accountability and autonomy, Canadian courts have exhibited a willingness to impose affirmative duties of care, notably, limited duties to rescue, duties with respect to intoxicated persons, and duties of police to warn potential victims. As an indication of the continuation of this expansionist trend, Professor Chamberlain drew attention to a recent Ontario Court of Appeal decision, Paton Estate v OLGC, in which the court refused to rule out the possibility of a duty of care owed by casinos toward problem gamblers. Professor Chamberlain concluded by suggesting that a potential explanation for the distinctiveness of Canada’s approach might be found by locating this area of jurisprudence within Canada’s broader socio-political and legal frameworks.

In his paper, “The Future of the Tort of Deceit,” Professor Neyers took aim at the 2014 Supreme Court of Canada decision, Bruno Appliance and Furniture Inc v Hryniak, wherein the Court omitted a well-accepted element of the tort of deceit: that the defendant intend that the plaintiff rely on his/her false representation. Through a thorough analysis of the law preceding and following Bruno, Professor Neyers convincingly argued that it would be wrong to think that, through this offhand omission, the SCC intended to change the common law tort of deceit. He closed his remarks by encouraging the Supreme Court of Canada to take greater care when summarizing complex bodies of law and practicing lawyers to stop treating the court’s judgments as if they were statutory provisions to be applied independently of the prior jurisprudence of which they form a part.

Professor Sinel presented “Amatory Torts and the Limits of Tort Law.” While in most jurisdictions (including all of Canada), legislation has made the torts obsolete, she suggested that their conceptual availability could function as a useful litmus test for evaluating competing theories of tort law. To the extent that a theory of tort law supports a tort that empowers an aggrieved spouse to sue his/her spouse’s paramour, so much the worse for that theory of tort law. Drawing on an analogy to economic torts, in particular, the tort of interference with contractual (economic) relations and the tort of causing loss by unlawful means, Professor Sinel showed the difficulties leading theories faced in their attempts to exclude the adultery torts. Given the failure of leading theories to provide a coherent and plausible explanation of these torts’ wholesale exclusion, Professor Sinel encouraged renewed attention to the institutional capacities of tort law, specifically, an inquiry into the value(s) that tort law is constitutionally capable of promoting and preserving.

Canadian Law of Obligations 2017 marked the first Canadian conference devoted to the law of obligations. At the conference’s close, it was announced that its second iteration will take place in 2019 at the Faculty of Law at the University of New Brunswick.