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The common law is an organic process but one that grows and develops slowly. This blog discusses how and when common law can change.

Evolution or Revolution?

The common law has been developed slowly over time by our courts of justice. It is judge-made law of ancient origin and development. It is evolutionary, not revolutionary. It evolves gradually and changes mostly in reaction to the changing landscape of the broader society it serves.

Judicial support for these assertions is found in the decision of the Supreme Court of Canada (“SCC”) in Watkins v. Olafson where the Chief Justice remarked:

Generally speaking, the judiciary is bound to apply the rules of law found in the legislation and in the precedents. Over time, the law in any given area may change; but the process of change is a slow and incremental one, based largely on the mechanism of extending an existing principle to new circumstances. While it may be that some judges are more activist than others, the courts have generally declined to introduce major and far-reaching changes in the rules hitherto accepted as governing the situation before them.

Why the Slow Pace?

Society is much more complex and fast-changing then it was during the early development of the common law. The judges then were a de facto ruling class and were well familiar with the workings of society and its prevailing norms. Today, judges although every bit as skilled as those in the past, are much less likely to be familiar with societies evolving technology and norms. Further, they are not elected representatives of society. Hence their reluctance and as confirmed by the Chief Justice:

There are sound reasons supporting this judicial reluctance to dramatically recast established rules of law. The court may not be in the best position to assess the deficiencies of the existing law, much less problems which may be associated with the changes it might make. The court has before it a single case; major changes in the law should be predicated on a wider view of how the rule will operate in the broad generality of cases. Moreover, the court may not be in a position to appreciate fully the economic and policy issues underlying the choice it is asked to make. Major changes to the law often involve devising subsidiary rules and procedures relevant to their implementation, a task which is better accomplished through consultation between courts and practitioners than by judicial decree. Finally, and perhaps most importantly, there is the long-established principle that in a constitutional democracy it is the legislature, as the elected branch of government, which should assume the major responsibility for law reform.

Recent Changes

New causes of action capable of providing a remedy, have however emerged in recent years. The duty of honest contractual performance was established in 2014 by the SCC in Bhasin v. Hrynew. The tort of “intrusion upon seclusion” was established in 2012 by the Ontario Court of Appeal (“ONCA”) in Jones v. Tsige. The tort of “breach of confidence” was established by the SCC in Lac Minerals Ltd. V. International Corona Resources Ltd. and Cadbury Schweppes Inc. v. FBI Foods Ltd. and as followed by the Ontario Superior Court of Justice in Doe 464533 v. N.D.

As is evident on a reading of these decisions the “new” causes of actions were not created from thin air but are instead acknowledgements of the emergence and recognition of these civil wrongs from case law in other jurisdictions, legislative enactments, academic writing, and other sound grounding principles and sources. They are more akin to confirmations of existing causes than the wistful creation of new ones.

A Recent Rejection

The ONCA considered the tort of “harassment” in Merrifield v. Canada (Attorney General) and rejected its existence in the common law of Ontario. The tort had been accepted at trial and damages awarded. It was an employment case. However, the ONCA reviewed the cases cited in support of this new tort and concluded that they did not create, or support, the tort’s existence. No foreign judicial authority was provided to support the new tort. Further, no academic writing or policy rationale was made available to support the alleged new cause of action. As a result, its existence was rejected.

The ONCA expressly criticized the creation of new causes of action by courts whenever they thought it convenient or appropriate to do so. That is not how the common law works, nor is it the way the common law should work. The facts of the Merrifield v. Canada (Attorney General) case did not scream out for a remedy as the facts in Jones v. Tsige did. Finally, there was an existing remedy available being the intentional infliction of mental suffering. That is the cause of action that was to be applied.

The ONCA did not shut the door permanently. They merely said the tort of harassment’s emergence or need had not yet been established.

At Milosevic Fiske LLP, we keep abreast of evolving legal developments in the common law and often blog about precedent-setting or otherwise significant decisions. We invite you to read our weekly blogs or to contact our litigation lawyers directly by phone 416-916-1387 or online if you have questions about recent developments in the law.