Period IV: 1980-2000

Probing CN v Norsk Pacific Steamship Co.

Probing Augustus v Gosset

Probing CN v Norsk Pacific Steamship Co.

By Garima Karia, 4L, Faculty of Law, McGill University

CN v Norsk Pacific Steamship Co. concerns extra-contractual recovery for economic loss. This common law case from 1992 was on appeal from the Federal Court of Appeal, and contains three judgements.

The central question in the case was whether a person, A, who contracts for the use of property belonging to another, B, can sue a third person, C, who damages that property for losses resulting from A’s inability to use the property during the period of repair.¹ Justice La Forest named this particular scenario “contractual relational economic loss”, and this concept finds itself at the centre of the comparative law discussion in Norsk.

Briefly, the fact scenario concerns a collision between a barge, which was being towed down the Fraser River by the defendant Norsk’s tug, and the New Westminster Railway Bridge. Atop the bridge was a railway track, to which the crash caused significant damage. While the bridge was closed for repairs, the four railway companies that made use of the bridge were compelled to re-route their traffic to another bridge, resulting in delays for all companies, including CN, which was the principal user of the tracks.² Returning to the framing of the issue above, in this scenario, the issue is whether a duty of care can arise between Norsk (A) and CN

(C) where A negligently damaged the property of B, resulting in a contractual interruption and consequent economic loss to C.³

This case provides a near-ideal case study for understanding and interpreting the notions of “unification”, “diversification”, and “inspiration”, as defined by Professor Rosalie Jukier.⁴ Although the three categories do not map exactly onto the three judgements in this case, they provide a guiding framework, or prism, that will assist in bringing out each opinion’s attitude towards and use of comparative law. Moreover, I explain that Justice La Forest and McLachlin’s opinions also present instances of “intra-tradition” unification, diversification, and inspiration. Like a prism, one may view these meta-uses of comparative methods as light reflecting and refracting through a prism and back.

Before delving into each set of reasons in turn, I will note that this judgement is rich in terms of its overarching comparative approach. While my comment will focus on each judge’s treatment of the civil law in particular, it is worth mentioning that the three authors also make extensive use of British and American common law jurisprudence.⁵

Although unconventional, I will begin my analysis with Justice La Forest’s dissenting opinion, which comes first in the written text as a result of seniority. Justice La Forest, a judge from New Brunswick, attributes his consideration of civil law to his colleagues, writing that he “finds it necessary to enter into some discussion of [the civil law] experience” because Justices McLachlin and Stevenson supported their conclusions with help from the civil law.⁶ Justice La Forest is clear that the civil law does not provide him “as much comfort for his colleagues’ views as they seem to derive from it.”⁷⁸ His colleagues’ opinions, he states, rely on French and Québec civil law’s argument about “the floodgates concern” (an opening up to unlimited liability). He understands Justices McLachlin (who was elevated from the British Columbia Court of Appeal) and Stevenson’s (an Albertan judge) argument to be that because both civilian systems allow for recovery for pure economic loss without breaking down, we should not be deterred by the floodgates argument. Justice La Forest disagrees because his understanding of the economic loss issue is narrower; he argues that the court should not be considering comparative law at the level of generality of “economic loss” but rather a more refined look at what he calls contractual relational economic loss, which he says civilian systems have generally not recognized.⁹ Indeed, in dommage par ricochet situations, “mere créanciers” akin to CN are seldom afforded any recovery¹⁰ and cases in which contractual relational economic loss have been awarded as a result of property damage to a third party are “even more rare”.¹¹ These early points indicate some alignment with the diversification model. However, Justice La Forest goes on to quote Markesinis, who highlights a “remarkable similarity of result” between English and French law in terms of the rarity of recovery in contractual relational economic loss cases,¹² hinting at some degree of alignment with the unification model.

Further signs of alignment with the unification model may be observed in Justice La Forest’s analysis of Québec law. Article 1053 of the CCLC, and Baudoin’s explanation of its implications, imply a trend towards an exclusion of liability, with a key difference being that Québec courts considered causality to be a question of fact.¹³ This difference distinguishes Québec from the French regime, and Justice La Forest spends some time in obiter exploring both civilian traditions’ positions in their own stead (as opposed to for comparative purposes only), and even integrates the German system into his comparative exercise.¹⁴ I would venture to say that this part of his judgement could be categorized as evidencing “intra-tradition” diversification, given the distinctions he makes between French, Québec, and German civil law. Nevertheless, Justice La Forest concludes his foray into civil law with a return to unification, stating that instances of recovery of contractual relational economic loss in Québec, like in the French civilian system, have also been few and far between. Although his bottom line is that neither French nor Québec civil law aid in making distinctions amongst contractual claimants on policy grounds, Justice La Forest does “draw from the civil law experience” in recognizing that the replacement of an exclusionary rule against recovery of pure economic loss with what amounts to a near-de facto bar will not lead to an “opening of the floodgates” situation.¹⁵

Justice McLachlin’s reasons are also rich in terms of its comparative approach. Like Justice La Forest, she dedicates a full stage of her analysis to how other jurisdictions confront the “vexed questions” of the extent to which damages for pure economic loss may be recovered in tort at common law, focusing specifically on the “search for a limiting principle” on such a right in these other jurisdictions.¹⁶ As I will explain below, Justice McLachlin’s reasons are best seen through the prism of unification.

Interestingly, the differences between the reasons of Justice La Forest and Justice McLachlin in Norsk are canvassed best by Justice McLachlin herself in Bow Valley Husky (Bermuda) Ltd. v Saint John Shipbuilding Ltd. She explains that the two reasons parted company on matters of result and methodology. Elaborating on their methodological differences, Justice McLachlin explains that Justice La Forest’s position originated on the basis of a general exclusionary rule whereas she opted for the two-step test for when recovery would be available pursuant to Anns and Kamloops.¹⁷ I would add that another methodological difference between the two sets of reasons is their approach to and consideration of comparative law in arriving at their respective conclusions. In essence, comparative law played a different role, but a role nonetheless, in each judge determining the methodologies described above.

Like Justice La Forest, Justice McLachlin relies heavily on British common law, but she also canvasses Australian and American approaches to recovery in negligence. Where her comparative methodology may be distinguished from Justice La Forest’s is her treatment of civil law. In true “unification” fashion, Justice McLachlin makes use of the civilian tradition to illustrate how its control mechanisms against unlimited loss (the requirements of directness and certainty, i.e. the direct connection test) guard prove that recovery without unlimited liability may be transposed onto the common law tradition.¹⁸ In other words, the “unifying” element here is the possibility of avoiding an opening of the floodgates, despite potentially adopting different methods to ensure as much.

Interestingly, while Justice La Forest’s reasons revealed some degree of intra-civilian diversification, Justice McLachlin’s opinion, when it comes to comparing civilian jurisdictions, is best seen through the lens of unification. She states that the civil law jurisdictions of France and Québec make no distinction between physical and economic damage, citing case law examples from both jurisdictions.¹⁹ She also explains that both Québec and other common law jurisdictions have departed from the narrow exclusionary rule for recovering pure economic loss without an opening of the floodgates – another instance evidencing the possibility of further legal unification.²⁰ Her comparative analysis concludes that every jurisdiction canvassed suggests two things: that economic loss should be recoverable in circumstances not covered by the traditional exclusionary rule, and that the need for some limit on this kind of recovery is “universally recognized”.²¹

Finally, Justice Stevenson’s reasons provide an illustration of the inspiration model at work. Justice Stevenson’s language choice is interesting, and almost sarcastic. He writes that many judges lawyers and jurists seem “extremely concerned about what life would be like after the death of the exclusionary rule… the worst apocalyptic scenarios are feared… the floodgates will be opened and our legal system will collapse. I do not share these fears.”²² One reason Justice Stevenson gives for his lack of fear is that the Supreme Court has the benefit of being the final court of appeal in a country with two legal traditions:

Our two legal traditions are independent and should not be confused. Concepts and solutions found in one tradition should not be imposed on the other tradition. But this does not mean that there is no place for comparative on this Court. The case at bar is a good example of how useful comparative law can be.²³

Justice Stevenson follows his glowing endorsement of the comparative method with a brief but compelling account of French and Québec civil law’s treatment of recovery for pure economic loss, citing Jutras, Tetley, and Markesinis, as La Forest and McLachlin JJ do. He also emphasizes the same point that civilian systems have not been crippled by the presence of this kind of recovery. He calls on the Court itself to use its civilian experience to its advantage, and to “not be frightened by apocalyptic scenarios about life after the rule against the recovery of pure economic loss.”²⁴

To conclude, I would be remiss to not spend some time discussing Bow Valley Husky v Saint John Shipbuilding, a Supreme Court case which revisits contractual relational economic loss some years later.²⁵ Justice McLachlin, writing in dissent (but not on this point), explains that the split decision (i.e. the three different judgements) in Norsk prevented the emergence of a “clear rule” to distinguish between cases where contractual relational economic loss can be recovered and cases where recovery is not possible.²⁶ Thus, she revisits the issue in her judgement in Bow Valley in an effort to bring such a “clear rule” to the fore. Like the judges in Norsk, Justice McLachlin summarizes the civilian position: a lack of differentiation between loss arising from damage of one’s own property and loss arising from damage to the property of another, and a restriction on such recovery on the basis of facts and causal connection.²⁷ Compared to Norsk, comparative law receives far less attention in this case, perhaps because the comparative exercise was done extensively in Norsk, which Justice McLachlin cites extensively. However, it is worth noting that Justice McLachlin continues to adopt a unification-based comparative framework in this case. When discussing the principle of apportionment for non-maritime torts, she states that the principle “is universally accepted in every part of Canada and indeed, around the world… the same holds under the Civil Code of Québec”.²⁸ Similarly, in a discussion of contributory negligence, she writes:

Probing Augustus v Gosset

By Garima Karia, 4L, Faculty of Law, McGill University

Augustus v Gosset explores the extra-contractual obligations issue of compensatory damages for solatium doloris under articles 1053 and 1056 of the Civil Code of Lower Canada (CCLC) (now replaced by article 1457 CCQ) and for loss of life under ss. 1 and 49 of the Québec Charter. This 1996 case originated in Quebec.This case comment will deal primarily with the compensatory damages issue, as its analysis contains the bulk of the decision’s comparative legal commentary.

The appellant brought a civil liability action against Gosset following the death of her 19- year-old son, who was a young Black man named Anthony Griffin. Gosset, a police officer, shot the appellant’s son in the course of a pursuit on foot following Anthony Griffin’s arrest. The trial judge dismissed the appellant’s claim for solatium doloris under arts. 1053 and 1056 because, in his view, this head of damage was not compensable in Québec.¹ The Court of Appeal, although divided on other points, held unanimously that solatium doloris is compensable in Québec civil law, referring to French civil law in its determination on this matter.² Despite its disagreement with the trial judge on the existence of solatium doloris awards in civil law, the Court of Appeal ultimately upheld the trial judge’s award for moral damage to compensate for “injury to feelings caused by the death of a loved one”, which the Court of Appeal took to be “exactly what solatium doloris entails”.³

In a unanimous judgement, Justice L’Heureux-Dubé, a Quebec judge, held that compensation for solatium doloris is available in Québec civil law. She begins her analysis of the issue by providing an extensive comparative law-based obiter, deeming it “interesting, even though the principle is no longer at issue […] to consider the origins of solatium doloris as a recoverable head of damage in Québec civil law”.⁴ Citing Justice Robert Taschereau in Chaput v Romain, she explains that, unlike the common law, the civilian tradition has never denied that an indirect victim may obtain compensation for moral prejudice resulting from another person’s death, so long as the prejudice is proven.⁵ Basing her conclusion on Justice Taschereau’s interpretation of art. 1053 CCLC, she argues that the justification for solatium doloris damages has always existed in the civilian tradition, given the tradition’s long-standing recognition of moral damages. Justice L’Heureux-Dubé differentiates this history from that of the common law

– a history conversely characterized by a general reluctance to compensate for non-economic losses.⁶

Justice L’Heureux-Dubé’s comparative legal methodology frequently reflects a propensity for unification. In cases such as Houle v Canadian National Bank and R v O’Connor, her position has been that the common and civil law, although different in their origins and ethos, often arrive at the same conclusion. In Augustus, however, her comparative analysis seeks to explain away the Court’s prior unification-driven decision-making in favour of a uniquely civilian approach, reflecting more of a diversification-adjacent leaning than is typical of her judgements.

This uncharacteristic approach is best understood through her argument in favour of departing from the Court’s precedent in Canadian Pacific Railway Co. v Robinson. Rendered in 1887, Robinson was a unanimous decision in which the Court refused to award a wife and children of a deceased person any bereavement compensation. Their decision was inspired by a concern for uniformity – the rule of non-recovery for solatium doloris was the standard across Canada – and by the common law’s “traditional reluctance” to compensate for non-economic losses.⁷ Justice L’Heureux-Dubé goes on to explain that Québec judges, including the trial judge, have “mostly followed” Robinson and thus generally refused to grant claims for solatium doloris.⁸ Yet, in quick succession, she adopts the words of Fish J.A., who in the appellate judgement boldly decreed that Robinson is a “historical error” that is “no longer relevant today given the absence of a provision equal to article 1056 CCLC”.⁹ Justice L’Heureux-Dubé supports this position by arguing that, in light of the specificity of the civilian tradition in Québec, French law – rather than English law – should have been followed when the question of solatium doloris was originally decided decades ago. Indeed, French law has always recognized that compensation is available for the moral prejudice which results from the passing of a family member or friend.¹⁰ Thus, while Justice Henri-Elzéar Taschereau looked to the common law for unification purposes in Robinson, Justice L’Heureux-Dubé departs from this staunchly unificatory approach in Gosset, looking instead to the common law to buttress and support her decision.

Taking this departure and distinction one step further, Justice L’Heureux-Dubé proceeds to bolster her position by canvassing the law in Belgium, Scotland, and even a number of common law jurisdictions, such as Australia and the United States, all of which provide compensation for the moral prejudice suffered by third parties due to the death of loved ones.¹¹ Although the right to claim damages for the death of a third party is now provided for by specific statutes in other Canadian common law jurisdictions, Justice L’Heureux-Dubé’s explicit departure from Robinson and its historio-legal underpinnings represents a markedly diversification-driven decision that is atypical of Justice L’Heureux-Dubé’s judicial philosophy.

The judgement’s separate but related discussion of quantum of damages also provides insight into the role of comparative law. Justice L’Heureux-Dubé explains that what “matters most” is that the moral prejudice actually suffered be compensated in full.¹² Historically, because Québec jurisprudence followed Robinson, the amounts award did not reflect restitutio in integrum and were generally quite modest.¹³ As a result, existing jurisprudence is an insufficient guide for future determinations of solatium doloris. To remedy this concern, Justice L’Heureux- Dubé deems it appropriate for the Court to give its views on assessing the quantum of such damages, despite its refusal to grant the appellant leave to appeal the amount of her award specifically. On this point, she points out that in every Canadian province except Quebec, the right to claim damages owing to the death of a third person is governed by statute. ¹⁴ Some of these statutes limit recovery to pecuniary losses, while others, such as Alberta and New Brunswick’s Fatal Accidents Acts, expressly provide for compensation for non-pecuniary losses.¹⁵ Relying on case law from New Brunswick, Justice L’Heureux-Dubé outlines criteria which she believes should factor into the moral prejudice assessment, including the circumstances of the death, the ages of the deceased and the parent, the nature and quality of the relationship between the deceased and the parent, among others.¹⁶ In doing so, Justice L’Heureux-Dubé exhibits her more typical unification-driven comparative method.

1. CN v Norsk Pacific Steamship Co, [1992] 1 SCR 1021 at 1037, 1992 CanLII 105 [Norsk].
2. Ibid at 1040.
3. Ibid at 1046.
4. See Rosalie Jukier, “Canada's Legal Traditions: Sources of Unification, Diversification or Inspiration?” (2018) 11:1 J Civ L Studies 75.
5. Citing cases such as Hedley Byrne & Co v Heller & Partners Ltd, [1964] UKHL 4, AC 465; Robins Dry Dock & Repair Co v Flint, 275 US 303 (1927).
6. See Norsk at 1078.
7. Ibid.
8. The use of the term “comfort” makes subsequent appearances in comparative decisions from the Court. The most notable example is Justice Cromwell’s use of the term in Bhasin v Hrynew, 2014 SCC 71.
9. See Norsk at 1079.

10. Ibid at 1080.
11. Ibid at 1081.
12. Ibid at 1082. La Forest J cites some interesting, conflicting French cases, including one where a soccer club recovered for damages incurred as a result of the death of a star player, and another where recovery was denied to an opera director for the loss caused by an injury to the leading tenor.
13. Ibid at 1083. However, La Forest J goes on to explain that the decision in Morin v Blais, [1977] 1 SCR 570, 1975 CanLII 3.
14. considered the question of causality to constitute a question of law. 14 Ibid at 1084–85.
15. Ibid at 1085–86.

16. Ibid at 1136.
17. Anns v Merton London Borough Council [1977] UKHL 4, [1978] AC 728; Kamloops v Nielsen [1984] 2 SCR 2, 1984 CanLII 21.
18. See Norsk at 1144.
19. Ibid at 1143.
20. Ibid at 1145.
21. Ibid at 1147.
22. Ibid at 1172.
23. Ibid at 1174.
24. Ibid at 1175.
25. See Bow Valley Husky v Saint John Shipbuilding, [1997] 3 SCR 1210, 1997 CanLII 307 [Bow Valley].
26. Ibid at 1240.
27. Ibid.
28. Ibid at 1265. 29 Ibid at 1267–68.
29. Ibid at 1268.
30.  Ibid at 1271.

Footnotes Augustus v Gosset