Law our mothers wrote

You may have noted that the Macdonald-Laurier Institute, a conservative think tank, recently named the Supreme Court of Canada its “policy maker of the year.” This was an edgy choice, given the Court’s traditional role as an interpreter and applier, not a maker, of the law.

The Court earned this award for its decisions halting federal government initiatives such as proposing an elected Senate and appointing a judge who was not a member of the Quebec Bar. However, I would give the award to the Court for an entirely different reason.

Our courts also develop and refine the common law—the principles established by judges over many years as they reason their way through private disputes. This judge-made law is as much part of our body of law as are the statutes enacted by our governments. Where legislation does not set the rules, we go to the judge-made common law to tell us how to determine, say, the damages payable for breach of contract.

Because the Supreme Court sits at the apex of the judicial pyramid, its rulings create precedents that bind other courts. While all its decisions are important to one degree or another, it has just released a decision in the area of contract law that one journal has labelled the most important in the last 20 years. And it’s for this decision that I would give the Court the award.

The case, Bhasin v. Hrynew, came from Alberta. Bhasin sold the financial products of a company called Canadian American Financial (CAF). Hrynew coveted Bhasin’s business and eventually, with the connivance of CAF, secured it. After Bhasin’s business, (predictably) failed, CAF terminated Bhasin’s contract and gave it to Hrynew instead.

Bhasin sued both of them, claiming they conspired against him, and that CAF, with whom he had the contract, failed to act in good faith. This was good enough for the trial judge, but CAF and Hrynew won their appeal on the basis the contract did not stipulate that CAF must behave in good faith, and there was no general legal obligation to do so apart from the contract itself. Bhasin appealed to the Supreme Court.

Here’s what the Court had to say: “It is time to make the common law…more coherent and more just. The first step is to acknowledge that good faith contractual performance is a general organizing principle of the common law of contract…The second is to recognize that there is a common law duty which applies to all contracts to act honestly in the performance of contractual obligations.”

In my words: When you are making a contract, you must do so without an ulterior motive that would inhibit you from doing your part to make the contract work. And when you perform a contract, you cannot do so deceitfully. This standard is overt judicial policy making in order to clarify the common law.

If you are thinking that you might have heard those words before, you are right. You probably heard them at your mother’s knee. In fact, you can read into the Court’s reasons the sense that it is a little sheepish that it took the common law so long to get to this point. You can almost picture the judges’ mothers eyeing them sternly as they craft their reasons for judgment. My mother could probably have written the decision and come to the same result; although her reasons would have been much, much shorter, on nice colourful stationery, with firm and legible handwriting, a clear return address, and the correct postage stamp aligned at the right angle. And all finished within a couple of days, with very little fuss and bother.

In fact, we should probably be giving our mothers more credit for major developments in the common law, because they are largely based on principles our mothers taught us when we were young and impressionable— long before we attended law school or appeared in court. For instance, over the last couple centuries, the courts have developed maxims that essentially say ‘show us an injustice and we’ll be sure you can do something about it.’ One such maxim: “He who comes into equity must come with clean hands.” Our mothers’ version: “Don’t complain that your sister stole from the cookie jar when you had your hands in the candy drawer.”

By one count, there were over 80,000 lawyers practising in Canada just a few years ago. If my ‘mothers gave us the principles’ theory is right, isn’t that an awful lot of people left to iron out the details? I suppose it is, but look at it this way: most of them at least had mothers.

In any event, let me congratulate the judges of the Supreme Court of Canada on their award. And let me strongly suggest that in their acceptance speeches, they follow the example of Oscar winners—by thanking their mothers.

This week’s column is dedicated to our mothers.

dsimmonds@wellingtontimes.ca