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To understand common law contract doctrinal research methodology, one must first understand how contract doctrine came into existence and its enduring relevance. Historically, the common law was derived from judgments that focused upon proof of particularized facts and their fit to established writs. Contract doctrine emerged as a product of the Industrial Revolution's transformation of commercial and labor practices, the creation of new forms of property, and the new economic and social theories that shaped political discourse. In this chapter, the rise of common law contract doctrine is first described, and its enduring relevance to today's common law is articulated. This lays the foundation for an exploration into research methodology through three distinct examples: the incremental development by the Supreme Court of Canada of a doctrine of good faith performance in contract law; the interaction between legislature and courts in modifying contract doctrine concerning liability for innocent misrepresentations; and the place of party autonomy in correcting aberrant court decisions that are not in keeping with commercial realities. Through these examples, this chapter demonstrates how the common law navigates between the Scylla of certainty and the Charybdis of flexibility to keep common law contract doctrine relevant, but within what common law courts are constitutionally and legitimately able to do.
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This paper explores from a Canadian perspective the awarding of damages for non-pecuniary losses that arise in commercial settings and asks the question whether there is any useful function performed by such awards. It is difficult to find cases that support such awards and thus if they are to be awarded, it will be advancing damages for non-pecuniary losses in a new direction. To justify such a movement, I suggest that the any development should be measured by two concepts: legitimacy - what is it that courts can legitimately do, and coherence - how does the award fit into a coherent and predictable legal system.I argue that from a purely compensation point of view, awarding compensation for a loss that is incommensurable does not make much sense. Only if the justification is vindication, deterrence or punishment is there merit in awarding more than compensation, but then, courts or legislatures should develop separate criteria to add quantification and to meet the standards of legitimacy and coherence.
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The print edition The Law of Trusts, 3rd Edition, includes a PDF ebook. Look for your PIN code card inside the front cover. The Law of Trusts, 3rd Edition, edited by Mark R. Gillen and Faye Woodman, traces the development of resulting and constructive trusts to reflect a uniquely Canadian approach. Written by leading scholars in the field, this comprehensive casebook situates the law of trusts in context for its readers, yet extends beyond the normal scope to discuss specialized topics such as unjust enrichment, taxation, and succession planning. The third edition has been updated and expanded to include a new chapter on the Quebec trust. An overview of the taxation of trusts and beneficiaries has been added to make the subject matter more accessible, and an updated chapter on fiduciary obligations references the Galambos and Elder Advocates cases to reflect the clarified approach adopted by the SCC.
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Remedies: Cases and Materials, 8th Edition is a comprehensive casebook that covers recent developments in both the law of damages assessment and the granting of equitable remedies. This publication examines all areas of remedies law in Canada, including damages, injunctions, specific performance, and equitable relief. Coming into its eighth edition, Remedies has become a reliable resource, providing updated case reports alongside detailed academic commentary. This edition was written by leading authorities on remedies, each of whom offer their expertise in specific areas. It also reviews recent Supreme Court of Canada cases and outlines how these decisions impact the law of remedies in Canada.
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