Precedent, Principle and Pragmatism: Justice Wilson and the Expansion of Canadian Tort Law
Tort law does not appear to have been a particular area of interest for Bertha Wilson during her years as a law student or in legal practice. But after she was appointed to the bench, some of her best-known judgments both at the Ontario Court of Appeal and at the Supreme Court of Canada were tort decisions (for example, Bhadauria v. Seneca College and Kamloops v. Neilsen), and the y, along with a number of other decisions authored by her, remain staples of the tort law curriculum. Clearly Justice Wilson made an impact on Canadian tort law. This paper focuses squarely on her tort decisions, analyzing the m as a body with a view to determining whether a coherent tort the ory or philosophy underpins the m. at first glance, a thread to connect this body of decisions is elusive; indeed, on the surface, a number of the m appear to contradict one another. For example, based on her Bhadauria judgment in which she boldly created a new tort of discrimination, we might regard Justice Wilson as a tort expansionist. Yet elsewhere, we see her protecting other areas of law from incursion by tort (contract law in Dominion Chain v. Eastern Construction and family law in Frame v. Smith). and in other decisions, she positions herself somewhere between these poles, championing an incremental expansion of tort law where precedent allows and justice demands (for example, in Kamloops and Crocker v. Sundance). But digging deeper into Justice Wilson’s tort decisions, common the mes emerge which link the m to one another and ground the m firmly in the broader context of her judicial work as a whole. In tort as in other areas of law, we find Justice Wilson striving to make decisions that are respectful of the constraints within which she operates as an appellate judge, true to her liberal principles, and responsive to the practical concerns of the parties appearing before her.
"Precedent, Principle and Pragmatism: Justice Wilson and the Expansion of Canadian Tort Law."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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