The Canadian Bar Review

THE PUBLIC LIMITS OF PRIVATE JUSTICE

2025-12-15T05:39:08+00:00

The common law doctrine of public policy remains poorly defined. It has been invoked to produce outcomes distinct from what conventional doctrine would require, but no consensus exists as to the purposes it serves, the factors justifying its intervention, or even the manner of its operation. This paper argues that the best understanding of public policy identifies it as delineating the justifiable boundary between spheres of public and private justice.

This paper accounts for the capacity of public policy to override the demands of private justice without detracting from its essentially private character. Using Rawls’ understanding of the institutional framework justifiable in a liberal democracy and distinguishing between the principles of justice appropriately applicable to political and private relationships, this account theorizes public policy as a barrier preventing private derogation from the basic political structure of liberal democracy. Focusing on contract, this paper proposes that public policy operates in circumstances in which the parties to a particular contract have sought judicial enforcement of private obligations, which, if enforced, would substantively alter the allocation of civic entitlements underpinning liberal democratic society.

This paper also offers a complementary account of the precise effect a declaration of repugnance has on contractual relationships, suggesting that courts should be understood as declining to enforce otherwise valid contracts, rather than declaring parties never to have been bound. On this account, public policy simply permits a court to decline requests that would otherwise set the liberal democratic state against itself.

OF CAR THIEVES, OPTICAL ILLUSIONS, AND SOCIAL HOSTS

2025-12-15T06:26:40+00:00

This article assesses the impact of the Supreme Court of Canada’s decision in Rankin (Rankin’s Garage & Sales) v JJ on subsequent analyses of the duty of care. The majority’s decision, while purporting to apply a “rigorous” analysis of foreseeability, conflates the duty and remoteness elements of the negligence tort and arguably applies a subjective test of what the particular defendant would have foreseen. Subsequently, this has led some appellate courts to apply highly granular tests of foreseeability at the duty stage, concluding that the factual scenarios were “rare” when they are, in fact, relatively common. Should this tendency continue, both the normative role of the duty of care and the precedential value of prior duty decisions will be eroded. Ultimately, this has the potential to prolong litigation, as each new case will provide an opportunity to distinguish the facts as being rare and unforeseeable.

ESTOPPEL WITHOUT REGARD TO EQUITY?

2025-12-15T10:57:10+00:00

Promissory estoppel plays an important role in enabling the enforcement of promises not made for consideration in cases where the promise was intended to and did induce a party to change its position in regard to preexisting legal rights. However, Canadian law on estoppel has been plagued by confusion and misunderstanding. This article addresses the internationally notable absence of an inequity requirement from promissory estoppel in Canada. The requirement’s absence is peculiar, in that estoppel’s very foundation is in equity, and it must assure that its effect is indeed equitable. Drawing on the Supreme Court of Canada’s decision in Trial Lawyers Association of British Columbia v Royal & Sun Alliance Insurance Company of Canada, I show how Canadian law is flawed in the absence of this vital element. I further demonstrate that, in fact, Canada was once a leader on this point before the widely-known opinion about it by Lord Denning in England in 1966. Later, the requirement fell through the cracks as the Supreme Court of Canada lost its grasp on its own precedents, and on the law on estoppel more generally. However, drawing on the older jurisprudence, and scholarship here and abroad, the situation can be rectified by having Canadian law again recognize promissory estoppel’s crucial inequity requirement.

“EQUITY HAS NO PLACE HERE”

2025-12-15T07:07:08+00:00

I discuss an odd use of equity: the granting of equitable remedies to assist authors of tax minimization plans where their plans result in unexpected tax liabilities. Canadian law has in the current century first taken a strikingly liberal approach to granting rescission and rectification to reverse the tax results of failed, mistake-based tax planning, and later switched to an approach far more restrictive than those under UK and US law. I believe the current Canadian approach to be both too permissive and not permissive enough: given the importance of the tax-and-transfer system for providing equalizing redistribution, and the regressive redistributive effects of tax planning, state-funded courts should in general not grant equitable remedies to authors of tax minimization schemes that have met with unexpected tax burdens as a result of tax mistakes. I recognize, however, that tax mistakes can lead to devastating results for taxpayers, and that such mistakes are to be expected given the complexity of our tax law and our acceptance of tax law changes operating retroactively. I therefore suggest that courts retain a power to grant rescission or rectification, as necessary, to eliminate mistake-based tax planning that will reduce a human taxpayer to insolvency if not eliminated, where such elimination is not realistically available in other ways.

MEASURING IMPROVEMENTS IN ACCESS TO JUSTICE

2025-12-15T08:06:05+00:00

Despite a dire need, the justice sector lacks empirical research that evaluates system improvement initiatives. Over a decade has passed since the Canadian Bar Association’s Reaching Equal Justice Report (2013) and Action Committee on Access to Justice in Civil and Family Matters’ Roadmap for Change (2013) called for such research to inform the development of a “person-centered” Canadian justice system. Uptake of coordinated empirical research could advance a culture shift towards normalizing—and embracing—learning from “failure” in justice system design. In Part 1 of this article, we revisit Dr. Jennifer Leitch’s (2013) recommendation that scholars conduct quantitative, qualitative, and mixed-methods empirical research on access to justice (A2J) initiatives. In Part 2, we share a summary of various evaluation models and examples of A2J scholars conducting such work. We conclude in Part 3 by critically reflecting on the methodological rigour of a recent Saskatchewan-led initiative on how to effectively communicate legal information to newcomers. We add to the literature on this topic critical reflection in legal research for improvements to A2J in the hope that others will learn from, and not shy away from, research and critical self-reflection in advancing research. Our aspiration is that other justice stakeholders will follow the same critical reflections of their work to embrace the idea that empirical research need not be perfect to be valuable in this underdeveloped area.

CANDOUR IN JUDICIAL REVIEW PROCEEDINGS IN CANADA

2025-12-15T08:49:14+00:00

To date, Canada knows no ‘duty of candour’ in judicial review proceedings. Such a duty, requiring individuals and government alike to make full and timely disclosure of relevant material, has long existed in other jurisdictions. In this paper, I discuss the potential recognition of a duty of candour in Canadian administrative law. Indeed, I will argue that a principle of candour is already immanent in the Canadian law of judicial review of administrative action. This principle has various manifestations, which I will describe. Building on these manifestations, I will conclude by suggesting that the principle should be recognized by the courts, who should feel comfortable imposing disclosure requirements on administrative decision-makers in judicial review proceedings.

In Part I, I introduce the duty of candour. In Part II, I explain why candour matters by describing how judicial review operates on the basis of a limited record. In Part III, I outline some barriers to the production of a complete record (i.e., a record that would permit a reviewing court to determine whether the decision in question satisfies the standards of administrative law) before, in Part IV describing why the resultant situation is problematic. In Part V, however, I outline the ways in which Canadian courts have managed or circumvented these barriers. These judicial strategies lead me to consider that a principle of candour is already immanent in Canadian law, and I conclude by suggesting that this be made explicit.

“AND TWO COWS TO MY WIFE … SO LONG AS SHE REMAINS MY WIDOW.”

2025-12-15T10:45:14+00:00

This article, part one of a two part project, provides a comprehensive review of the law surrounding marriage conditions in wills in Canada, including the civil law jurisdiction of Quebec, through a quantitative study of nearly every electronically reported Canadian decision involving a marriage clause in a will. It begins with an overview of the history of marriage clauses in the UK, the US and Canada with a detailed review of the Canadian jurisprudence. This study reveals that the application of public policy to most marriage clauses in Canadian wills has remained stagnant since the 18th century, with two notable exceptions. The first involves clauses that condition a gift on discriminatory terms such as the sex, race or religion of a beneficiary’s spouse. When asked to do so, Canadian courts have voided such conditions, beginning in the 1960s. The second is the Province of Quebec where arguably all marriage clauses are now contrary to public order. This article is followed by a companion piece that provides the normative argument as to why all marriage clauses should be considered contrary to public policy in Canada.

LES MODES DE PRÉVENTION ET DE RÈGLEMENT DES DIFFÉRENDS ET L’ÉTAT

2025-12-16T07:41:17+00:00

This article analyzes the application of Section 75 of Quebec's new Code of Civil Procedure (Cpc), in force since 2016, which aims to establish a cultural shift by promoting methods of Dispute Prevention and Resolution (DPR). This reform is a response to a crisis of legitimacy and inaccessibility within the traditional justice system, frequently criticized for its slowness and costs. DPR, in contrast to the adversarial system, is characterized by its consensual nature, flexibility, and its role in restoring dialogue between parties.

Section 1 of the Cpc creates an obligation on private parties to consider DPR. Section 75, however, establishes a notwithstanding regime for the State and its agencies, conferring the State discretionary power (if they consider it advisable). This recourse is constrained by three elements: government regulations on the subject, public interest, and the legal standards set out by law.

The analysis reveals a regulatory void: formal regulations governing DPR are scarce, although they do exist for certain public contracts. The "legal standards," however, encompass public order laws as well as specific agreements, such as those entered with Indigenous communities. Entities under limited State control, such as school boards and municipalities, fall outside the ambit of this notwithstanding regime and are subject to the general obligation of Section 1 of the Cpc. The Quebec Ministry of Justice has not yet implemented a general DPR policy for the Governmental Administration, unlike its federal counterpart.