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Canada’s Common Law: Why is it so important?

Canada’s Common Law: Why is it so important?

Posted by justis1 | 17 April 2015

Information about Canadian case law? online legal research servicesRecently I was reading that Justice Cory Gilmore, of the Ontario Superior Court, may have set precedent when he declared a power to strike provisions from a will because of the deceased person’s racist beliefs, even if the will contained no racist language. This got me thinking about whether this precedent could soon make its way to the courtrooms of England and Wales.

But first let’s briefly explore how Canada came into being.

A spot of history

Canada has not had the easiest of journeys to becoming the country we know today. It has been the site of fierce battles, both on the fields and in the courtroom, being fought over by the UK, France and the United States in claims over its territory.

The modern territory of Canada is the result of the Treaty of Paris in 1763, which saw Canada and most of New France ceded to Britain and the Treaty of Paris 1783 which ceded the territories south of the Great Lakes to the United States.

The bi-jurist legal system came with the Quebec Act 1774 that re-established the French language and civil law in the new Province of Quebec, and the British North America Act 1867 (BNAA) that established Canada was to have a constitution “similar in Principle to that of the United Kingdom”.

To this day it remains a Commonwealth country, one that has a distinct culture and heritage derived from outside influences and those of the First Nations, Inuits and Métis.

This makes its case law all the more interesting to read, and also important for the development of the common law and therefore practitioners in places such as the Caribbean, England and Australia, among other Commonwealth countries.

Cases in point

“Pollution is always unlawful and, in itself, constitutes a nuisance.” So said the court in Groat v. Edmonton (City) [1928] S.C.R. 522, an important case recognising that common law actions such as nuisance can be tools of environmental protection.

Groat, the owner of a downstream riparian area, sued the City of Alberta in nuisance for the pollution to a stream caused by discharge from the municipal storm sewer. While a riparian proprietor has a right to drain his or her land, it may not be exercised to the “injury and damage of the riparian proprietor below” and is no defence to an action for polluting the water in a stream. Groat succeeded and subsequently the City had to abate the nuisance within two years.

Henrietta Muir Edwards and Others v Attorney-General for Canada and Others [1930] 1 A.C. 124 is perhaps one of the most important triumphs in Canadian case law for female equality.

The case was brought by the “Famous Five”, a collection of five female women’s rights activists and reformers, who fought to have women recognised as “persons” under section 24 of the British North America Act 1867 (BNAA).

Absurd as it seems nowadays, one of the litigants, Emily Murphy, was unable to be a candidate for a seat in the Senate as she was not considered a person. Then Prime Minister, Sir Robert Borden, claimed that the BNAA using “persons” as the plural, with “he” referring to the singular, restricted its meaning to members of the male sex only.

In the Supreme Court, as Edwards v AG [1928] S.C.R. 276, the Justices upheld the law as it stood that women were not eligible to be senators.

Influence of the Privy Council

The Judicial Committee of the Privy Council did not approve of the decision in Edwards and overturned the decision, in turn making Canadian legal history.

They considered that the Act’s provisions had to be given a liberal interpretation, requiring the Act to be read in light of developments within the Canadian legislature, the so-called “living tree doctrine” of constitutional interpretation.

While women had not been expressly excluded from public office, the term “persons” was imputed to mean “men”, hence the use of “he” in the singular. The custom of excluding women from public office could however become tradition, remaining unchallenged long after it had lost its original purpose, but it did not have to be.

As Lord Sankey LC said in his decision “[t]he exclusion of women from all public offices is a relic of days more barbarous than ours”, so “to those who ask why the word [“persons”] should include females the obvious answer is why should it not?”.

A fitting end to the case came when Emily Murphy defied expectations and became the first female magistrate in Canada. This was followed, less than a year later, with Cairine Reay Mackay Wilson’s appointment to the Senate—the first woman to achieve this.

More recent cases

Another leading decision comes in the form of Quebec v Blaikie (No. 1) [1979] 2 S.C.R. on the language rights in the Constitution Act 1867.

Quebec’s Charter of the French Language, mandating that provincial laws must only be enacted in French, violated section 133 of the Act. The Supreme Court held that the Acts of the Parliament of Canada and of the legislature of Quebec “shall be printed and published” in English and French.

The Charter declaring that “only the French text of the statutes and regulations is official”, excluding those English versions that were printed and published by the civil administration, was incompatible with the Court’s finding that all subordinate statutes are regarded as being laws and thus both the English and French versions have official status. The restrictions were ultra vires the Legislative Assembly of Quebec.

In another case on culture, the appellants in Mississaugas of Scugog Island First Nation v National Automobile, Aerospace, Transportation and General Workers Union of Canada and Others (AG for Canada and AG for Ontario intervening) [2007] ONCA 814 relied on claims to right for self-government.

The appellants claimed that under its aboriginal and treaty rights, confirmed in section 35 of the Constitution Act 1982, it could create its own labour code for its union and therefore displace the Ontario Labour Relations Act that applied to the workers.

In its decision the court found (i) no evidence of aboriginal practice, custom or tradition supporting the right to enact a labour relations code, (ii) even if the court were to accept the characterisation of the right as “an aboriginal practice to regulate work activities and access to aboriginal lands” it could not be said to be integral to their distinctive culture, and finally (iii) they failed to establish reasonable continuity between the pre-contact practice, custom or tradition and the contemporary claim.

Although the appeal was dismissed, the question the court had to answer, as to whether Mississaugas had the legal right to enact its own code of labour law to govern collective bargaining in respect of a Casino owned by them on reserved lands, was important as it is rather rare for cases to be brought on claims to aboriginal rights to self-government.


Without the influence of Canadian law, it is worth contemplating where we would be with the development of the common law. The same could be said for Scots law too, given the importance of Donoghue v Stevenson [1932] UKHL 100 and other cases from Scotland. The common law is reliant on the decisions of courts around the Commonwealth in order for it to flourish and grow. This means that the law in Australia, for example, can be persuasive in England and Wales. As has been the case with decisions of the Judicial Committee of the Privy Council (JCPC) on appeal from Australian (or other domestic Commonwealth) courts, such as the famous Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (Wagon Mound) (No. 2) [1967] 1 AC 617 on the reasonable man and the test for duty of care.

The vanguard of the common law, the JCPC was (and still is) a rather controversial body, to say the least. Undoubtedly it has brought uniformity to the application of the common law in the countries of the Commonwealth’s legal systems, it is just unfortunate that this can appear to be rather arbitrary way at times.

Or the decision before the Ontario Superior Court of Justice, one of the busiest trial courts in the world, could be used before judges in other common law jurisdictions. And that is the beauty of this interconnected system of laws. It encourages some degree of uniformity across a plethora of countries that have adopted a certain model of law.

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