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Hail to the Chief: McLachlin C.J.C. Becomes Canada’s Longest-Serving Chief Justice

Posted in Class Actions, Contracts, Features, Torts
Brandon KainElder Marques

Next month marks the bicentennial of the birth of Sir William Johnstone Ritchie, one of the first judges appointed to the Supreme Court of Canada and Chief Justice from 1879 to 1892. Why are we thinking about him this week? Until today, he was the longest serving Chief Justice of Canada. That title now belongs to Chief Justice Beverley McLachlin, who has held the position since January 7, 2000. Having served on the Court for nearly a quarter century – most of that time as Chief Justice – her impressive legacy to date includes the development of the law in a wide and varied range of areas. She has also used her position to forge a remarkable degree of consensus on the Court and to publicly highlight important issues facing the administration of justice.

To celebrate this historic milestone, Canadian Appeals Monitor has taken a look at McLachlin C.J.C.’s jurisprudential legacy to date – both before and after her appointment as Chief Justice – and identified 10 key cases in which she has had a direct and lasting role in shaping the law as it applies to Canadian businesses and professions. Her judgments in these areas rarely receive the attention of the media, who tend to focus instead upon her important decisions regarding constitutional and criminal issues. However, as demonstrated by the cases below, McLachlin C.J.C. has also had a profound influence upon the development of the private law.

Norsk and Bow Valley

The recovery of pure economic loss in negligence is one of the most controversial and difficult subjects in the law of torts.  As Cardozo J. famously remarked in Ultramares Corp. v. Touche, 255 N.Y. 170 (1931), such cases, more than any other, create the potential for “liability in an indeterminate amount for an indeterminate time to an indeterminate class”.  In Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021, McLachlin J. (as she then was) laid the groundwork for a principled approach to this area, by rejecting an automatic exclusionary rule for pure economic loss and holding instead that the controlling concept is “proximity”, broadly defined.  While the position taken by McLachlin J. in Norsk differed from that of La Forest J. (who would have imposed a presumptive exclusionary rule for contractual relational economic loss), she later unified the two approaches in Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210.  The resulting rule – that recovery for contractual relational economic loss is presumptively excluded in the absence of a categorical exception, subject to the recognition of a new exception based on policy reasons – has been applied by the Supreme Court ever since: see, e.g., Martel Building Ltd. v. Canada, [2000] 2 S.C.R. 860 and Design Services Ltd. v. Canada, [2008] 1 S.C.R. 737.

 Cooper and Edwards

As Norsk and Bow Valley suggest, one of the areas in which the Chief Justice’s contribution to the development of private law has been most notable is her work on the duty of care and how it should be applied to novel negligence claims.  In November 2001, the Court released two unanimous companion judgments – Cooper v. Hobart, [2001] 3 S.C.R. 537 and Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562 – in which the Chief Justice and Major J. put “a gloss” on Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), “revisited” the Anns test and provided guidance on the proper role of policy considerations in assessing tort liability and “proximity.”  The Chief Justice elaborated upon these ideas in later judgments – notably Childs v. Desormeaux, [2006] 1 S.C.R. 643, Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129 and R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45 – and has consistently been the driving force behind the Court’s clarification of these important concepts.

Resurfice and Clements

Two appropriate companions to the Chief Justice’s judgments in Cooper and Edwards are decisions in which she clarified the causation standard to be applied in negligence claims.  Her unanimous judgment in Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333 confirmed that the but-for test is a “fundamental rule” that “has never been displaced.”  This was in the face of considerable confusion caused by arguments that the “material contribution” test represented a new, more relaxed approach to causation.  The Chief Justice returned to this issue in Clements v. Clements, [2012] 2 S.C.R. 181, where her majority judgment clarified that a “material contribution” approach to causation is appropriate in rare cases involving multiple tortfeasors if the negligence of the defendants is the but-for cause of the plaintiff’s loss, but the plaintiff cannot show that one particular defendant was the likely cause.

BG Checo

In addition to torts, the Chief Justice has made several significant contributions to the law of contracts.  Perhaps her most notable judgment in this regard is BG Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12, where she delivered joint majority reasons with La Forest J. that greatly simplified the rules for when a plaintiff can sue in both tort and contract for conduct that gives rise to concurrent liability in each.  The BG Checo approach – that the right to bring concurrent claims exists in any case where the contract does not clearly indicate otherwise – stands as an important affirmation of the primacy of private ordering.  McLachlin J.’s judgment in BG Checo is also noteworthy for its pragmatic approach to reconciling inconsistencies in different parts of an agreement, and for clarifying the different measures of damages in contract and tort.  It joins a long line of other contract cases authored or co-authored by the Chief Justice,in fields as diverse as insurance, partnership, joint ventures and employment law: see, e.g., Nichols v. American Home Assurance Co., [1990] 1 S.C.R. 801, Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 S.C.R. 252, Continental Bank Leasing Corp. v. Canada, [1998] 2 S.C.R. 298, Fidler v. Sun Life Assurance Co. Of Canada, [2006] 2 S.C.R. 3, Jedfro Investments (U.S.A.) Ltd v. Jacyk, [2007] 3 S.C.R. 679, and RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc., [2008] 3 S.C.R. 79.

Dutton, Hollick and Rumley

Perhaps no decisions of the Chief Justice have had a greater impact upon businesses than the seminal class actions trilogy of Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 SCR 534, Hollick v. Toronto (City), [2001] 3 SCR 158 and Rumley v. British Columbia, [2001] 3 SCR 184.  These cases have come to define the test for certifying class actions in Canadian provinces outside Quebec.  Virtually all of the foundational concepts in class certification – the “plain and obvious” standard for whether the pleading discloses a cause of action, the requirement for a “colourable claim” and a “rational connection” between the proposed class and the common issues, the two-part test for preferability, the focus upon access to justice, judicial economy and behaviour modification, the notion of “systemic” liability, and above all, “the curious requirement of ‘some basis in fact’” (as Justice Cullity has called it) – can be traced to these unanimous decisions by McLachlin C.J.C. It is difficult to identify another area of the law in which a single Canadian judge has had so much influence.

Honourable Mentions

Not surprisingly, our efforts to compile a “top ten” list of the Chief Justice’s decisions led to much discussion and debate given the wide array of contenders.  Some particularly notable judgments that were not included in our list are:

  • Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, which unanimously revisited the “bright line” conflicts rule for lawyers and their clients;
  • Grant v. Torstar Corp., [2009] 3 S.C.R. 640, which modified the traditional law of defamation to recognize the defence of “responsible communication”;
  • Canada Trustco. Mortgage Company v. Canada, [2005] 2 S.C.R. 601, written with Major J., which offered a unanimous (and then-unprecedented) interpretation of the general anti-avoidance rule (GAAR) under the Income Tax Act;
  • Wallace v. United Grain Growers, [1997] 3 S.C.R. 701, an influential dissenting judgment which dealt with the relevant factors in the calculation of wrongful dismissal damages and the existence of an implied duty of good faith in employment termination; and
  • Peel (Regional Municipality) v. Canada, [1992] 3 S.C.R. 762, which reconciled the “principled” and “categorical” approaches to restitution, and defined the nature of “benefit” in the test for unjust enrichment.

Having often publicly reiterated her desire to serve until reaching the age of mandatory retirement, the story of the Chief Justice’s ultimate legacy on the Court remains to be told.  It is clear, however, that the media’s understandable focus on her contributions to the development of public law in Canada tells only half of the story, and overlooks an important and lasting part of her contribution to Canada’s commercial and professional life.