McGill University, Faculty of Law

Advanced Common Law Obligations

Winter 2016
Mark Antaki*
I. About This Course
This course invites you to develop your appreciation of the common law tradition by way
of the study of selected texts relating to the private law of obligations. Proximity will
serve as a theme throughout our examination of the contours and reach of tort, contract
and fiduciary obligations in various contexts. The focus of the course will be on the
habits and skills more specifically the ways of speaking and reasoning tied to the
common law tradition. The course ought to allow you to deepen and revisit your previous
study of extracontractual and contractual obligations and of the foundations of Canadian
law.
II. Teaching and Organization of the Classroom
Our classroom time will consist primarily of guided conversations, as well as some
moments of lecturing and exercises. During the guided conversations, I will usually put a
question on the table and ask that you respond directly to that question when you speak.
These conversations will usually require you to have read and struggled with the assigned
readings but not necessarily understood them. The moments of lecturing will
complement but not summarize the assigned readings. Rather, they will serve to frame,
highlight specific aspects of, or address information absent from, the readings. Exercises
will mostly serve to help you articulate your thoughts in written form and emphasize the
importance of listening. During some of our conversations, I will ask you to close your
computers. I will even sometimes ask that you put down pen and paper. Given the
importance of conversation to the class, I will ask you to attend to the ways in which you
take notes and organize your thoughts in writing.
Because learning is always someones learning, I will aim to get to know you
individually and to respond, to the extent possible, to each of you with tailored advice. I
will strive to make ample opportunities for sustained interaction with me outside of class,
whether it be one-on-one or in small groups. I will encourage you to send me samples of
your written work so I can help you find the right words, i.e. pre-articulate, before
assignments are due and exams must be written. When you experience difficulties, I will
often ask you to try to articulate what you think you know before asking a question about
what you think you dont know. I will do this to help you build confidence and to show
you that you must not mistake a feeling of mastery for learning.
As an evaluator, I strive to help you read your own work. In part, this requires judging
you by the standards you set for yourself, e.g. whether you make and support the claims

*

This syllabus is a slightly modified version of Professor Van Praaghs Advanced Common Law
Obligations syllabus. I am grateful for her generosity. I would also like to thank Mireille Fournier for her
help in preparing and revising this syllabus.

you make or whether your argument or text has the style and coherence you attribute to
it. Further, while assignments will also always be evaluated according to standards such
as whether one has answered the question, or whether one is concise, everyone will
answer the question or be concise in a different way. Therefore, my comments will aim to
help you learn to respond to questions precisely and concisely, but in your own way. I
will try to help you identify the habits you need to practice to become better writers.
Please note that the course is organized in terms of units. Each unit will usually involve
the two classes in one week, i.e. both the Monday and Wednesday class. Readings ideally
should be completed by the Monday class in order to allow for a good understanding of
that session, and reviewed for the Wednesday class in preparation for a more in-depth
session. It will always be assumed that all students have gone over all of the weeks
materials with care by Wednesday.
We are fortunate to have a group assistant this year, fourth-year student Mireille Fournier.
III. Course Materials
The course materials will be available on My Courses. Supplementary materials (both
required and recommended) may be assigned during the year. Please speak to me if you
plan to read ahead!
IV. Teaching Hours and Location
We will meet on Mondays and Wednesdays from 16:00 to 17:30 in NCDH 312.
V. Contact Information
I can be reached by e-mail at mark.antaki@mcgill.ca please include ACLO in the
header or by phone at (514) 398-6642. If you have not heard back from me within three
working days, please feel free to send me a gentle reminder.
You may also set up individual or group appointments with me. My office is room 36 in
Old Chancellor Day Hall. I will not be able to stay after class but will be setting up regular
office hours.
Mireille Fournier can be reached at mireille.fournier@mail.mcgill.ca
VI. Method of Evaluation
Evaluation will be tied closely to what we do in class. Assignments will likely emphasize
the importance of careful and attentive reading and not conscious attempts at originality.
A. Participation 25%

The aim of the participation grade is not to bribe you to speak up in class. The participation
component of the class is about your reflexive involvement in your own education, as well
as your helpful involvement in the education of your instructor and classmates.
(i) In-Class Participation
Participating in class is as much about listening as it is about speaking. It is as much about
helpfully querying a classmate or instructor or rearticulating his or her intervention or
pointing others to a neglected passage in an assigned text as it is about saying what you are
dying to say. All of you will have to work on different aspects of your in-class
participation. Some of you will have to work to speak up more, some will have to work on
listening better and speaking less, and so forth.
(ii) Specific In-Class Responsibilities
For each class, one or two of you will be responsible for preparing a five-minute
presentation about what we did together the previous class. Details to follow.
Each of you is also to submit one commentary on a specific unit. A draft of the
commentary will be due by the beginning of the second class of the unit in question. The
final version will be due one week later. Details to follow.
(iii) Dialogue with Instructor About Your Habits
Just as you will be thinking about and working on the way in which you are present and
participate in class, it is important that you attend to your other habits as students, e.g. if
and how you take notes when you read. I invite all of you to initiate conversations among
yourselves - and with me - about what it means to be a student and how you can be better
students. I also welcome conversations with you about how I can be a better teacher.
B. Final Assignment 75%
The final assignment will be released on Wednesday 6 April, which will likely be the day
of our last class. It will be due on Friday 15 April, the last day of classes, by 3PM. Our
classes of Monday 11 and Wednesday 13 April will likely be cancelled so as to allow you
to work on the assignment. I plan to make myself available the week of the 11th.
Details regarding the form of the final assignment and its submission are to follow.
VII. University Statements
a. Academic Integrity
McGill University values academic integrity. Therefore all students must
understand the meaning and consequences of cheating, plagiarism and

other academic offences under the Code of Student Conduct and

Disciplinary Procedures (see http://www.mcgill.ca/integrity for more
information).
Luniversit McGill attache une haute importance lhonntet
acadmique. Il incombe par consquent tous les tudiants de
comprendre ce qui lon entend par tricherie, plagiat et autres infractions
acadmiques, ainsi que les consquences que peuvent avoir de telles
actions, selon le Code de conduite de ltudiant et des procdures
disciplinaires (pour de plus amples renseignements, veuillez consulter le
site www.mcgill.ca/integrity).
Note: As a rule of thumb, remember always to place between quotation marks any
language that is borrowed from someone else, and to include a footnote reference for any
idea borrowed from an outside source.
b. Right to submit in English or French written work that is to be graded
In accord with McGill Universitys Charter of Students Rights, students in this
course have the right to submit in English or in French any written work that is
to be graded. This right applies to all written work that is to be graded, from
one-word answers to dissertations.
Instructors Note: Students writing in French will be entitled to write 10% more words
than those writing in English.
VIII. Topics and Schedule of Classes
Unit
Date

Materials

1
Common Law
Jan 7 Tradition

Nature of the Common Substantive Law of

Law
Obligations
A course in common law
obligations?

Commentary:
-

Marianne Constable, Our Word is Our Bond: How Legal Speech Acts (Stanford:
Stanford University Press, 2014) 47-78 and 151-163 (32 and 11 pages)
Karl N Llewellyn, The Bramble Bush: On Our Law and Its Study (New
York, Oxford University Press, 1951) at 58-69 (12 pages)
AWB Simpson, An Invitation to Law (Oxford: Blackwell, 1988) excerpts (26
pages) (recommended)

2
The Common Law
Jan
Moment?
11-13

Reading ratio decidendi

The neighbour
principle in the tort
of negligence

Case law
-

Donoghue v Stevenson, [1932] AC 56 (42 pages)

McPherson v Buick Motor Co (1916), 217 NY 382, 111 NE 1050 (11 pages)

Commentary:
-

Percy Winfield, Tort Defined, in The Province of the Law of Tort (Cambridge:
University Press, 1931) at 32-39 (8 pages)
David J Ibbetson, A Historical Introduction to the Law of Obligations
(Oxford: Oxford University Press, 1999) at 188-196 (8 pages)

3
Beyond Donoghue? Reasoning by analogy
Jan
18-20

The principle of
proximity

Case law:
-

Hedley Byrne v Heller, [1964] AC 465 [75 pages]

Home Office v Dorset Yacht Co Ltd, [1970] AC 1004 [68 pages]
Anns v Merton London Borough Council, [1978] AC 728 [45 pages]

Commentary:
-

Geoffrey Samuel, Facts and Law in Epistemology and Method in Law

(Aldershot, England: Ashgate, 2003) at 173-200 [33 pages]

4
How close?
Jan
25&27

The Common law Judge

Role and writing

Introduction to
pure economic loss

Case law:
-

Candler v Crane Christmas & Co, [1951] 1 All ER 426 (CA) [43 pages]
Hedley Byrne, supra [75 pages]
Hercules Management v Ernst & Young, [1997] 2 SCR 165 [53 pages doublespaced]

Commentary:
-

5
Feb
1&3

Desmond Manderson, Proximity, Torts and the Soul of Law (Montreal: McGillQueens University Press, 2006) 91-97, Chapter 4 excerpt [7 pages]
Dennis R Klinck, This Other Eden: Lord Denning's Pastoral Vision (1994) 14
Oxford J Legal Stud 25-55 [31 pages]
Richard Posner, Cardozos Judicial Technique in Cardozo: A Study in
Reputation (Chicago: Chicago University Press, 1990) [24 pages]
Proximity and pure Development of the
economic loss
common law

Recovery for
misleading words
and defective
products

Case law:
-

Kamloops v Nielsen, [1984] 2 SCR 2 (adoption of Anns test) [30 pages]

Rivtow Marine Limited v Washington Iron Works, [1974] SCR 1189 [18 pages]
Winnipeg Condominium Corp no 36 v Bird Construction Co, [1995] 1 SCR 85
[48 pages double-spaced]

Commentary:
-

Desmond Manderson, Proximity, Torts and the Soul of Law (Montreal: McGillQueens University Press, 2006) 104-118, Chapter 5 excerpt [15 pages]
Claire LHeureux-Dub, The Dissenting Opinion: Voice of the Future? [25
pages]
Ruth Bader Ginsburg, Remarks on writing separately [8 pages]

6
Proximity and
Feb
Pure Economic
8&10 Loss: Setting
Limits

Overturning past decisions: Divergence among

form and substance
common law
jurisdictions on
proximity and pure
economic loss

Case law:
-

Winnipeg Condominium Corp, supra [48 pages double-spaced]

D. & F. Estates v. Church Commissioners [1989] 1 AC 177 [40 pages]
Murphy v. Brentwood [1991] 1 AC 398 (66 pages)

Commentary:

Carl F. Stychin Dangerous Liaisons: New Developments in the Law of Defective

Premises (1996) 16 Legal Studies 387 [30 pages]
John P. S. McLaren: The Dickson Approach to Liability in Tort in DeLloyd J
Guth (ed.) Brian Dickson at The Supreme Court of Canada 1973-1990
(Winnipeg: Canadian Legal History Project, 1998) [14 pages]

7
Proximity and
Feb
Relational
15&17 Economic Loss

The appeal to policy

Recovery for
economic loss
arising from
relationship

Case law:
-

Canadian National Railway v Norsk Pacific Steamship Co, [1992] 1 SCR 1021
[240 (very!) double-spaced pages]
Bow Valley Husky (Bermuda) Ltd v Saint John Shipbuilding Ltd, [1997] 3 SCR
1210 [67 pages double-spaced]
Cooper v Hobart, [2001] 3 SCR 537 [27 pages]

Commentary:
-

Beverly M McLachlin Evolution of the Law of Private Obligation: The Influence

of Justice La Forest in R Johnson et al, eds, Grald V La Forest at the Supreme
Court of Canada, 1985-1997 (Winnipeg: Canadian Legal History Project, Faculty
of Law, University of Manitoba, 2000) [21 pages]
Karen Crawley & Shauna Van Praagh, Academic Concerns Caring about
Conversation in Canadian Common Law (2011) 34:2 Dalhousie LJ [38 pages]

8
Proximity and
Feb
Relational
22&24 Personal Loss

Rhetoric and persuasion in Recovery for

the common law
psychological loss
arising from
relationship

Case law:
-

Chester v. The Council of the Municipality of Waverley (1939) 62 CLR 1 [15

pages]
Rhodes v Canadian National Railway (1990) 75 DLR (4th) [72 pages double
spaced]

Commentary:
-

Denise Raume, Indignities: Making a place for dignity in modern legal thought
(2002) Queens Law Journal 61 [35 pages]
Honni van Rijswijk, Neighbourly Injuries: Proximity in Tort Law and Virginia
Woolfs Theory of Suffering (2012) 20 Fem Leg Stud 39 [22 pages]
Carl F Stychin, The Vulnerable Subject of Negligence Law (2012) 8 Intl J of
Law in Context 337 [18 pages]

READING WEEK
9
Conflict, Choice
March and Convergence
7&9

The common laws

approach to overlapping
obligations

Concurrent
liability in tort and
contract

Case law:
-

BG Checo International v. BC Hydro and Power Authority [1993] 1 SCR 12 [83

pages double-spaced]
Henderson v. Merrett Syndicates Ltd [1995] 2 AC 145 [63 pages]
White v. Jones [1995] 2 AC 207 [58 pages]
James Andrew Robinson v. P E Jones (Contractors) Ltd. (excerpt) [5 pages]

Commentary:
-

John G. Fleming Tort in a Contractual Matrix (1995) 33 Osgoode Hall L.J. 6613, 670-8 [13 pages]

10
How close?
March Fiduciary
14&16 Obligations in the
Commercial
Context

Fairness and the common

law

The notion of
equity and
constructive trusts

Case law:
-

Lac Minerals Ltd v. International Corona Resources Ltd [1989] 2 SCR 574, 61
DLR (4th) 14 [37 pages]
Banner Homes Group Plc. v. Luff Developments [2000] Ch 372 [31 pages]

Commentary:

Cossman and Hoffstein Disputes Involving Trusts: The Canadian Experience in

(ed) Nedim Peter Vogt Disputes Involving Trusts (Basel: Helbing & Lichtenhahn,
1999) pp 45-50, 74-78 [13 pages] (recommended)
Beverley M. McLachlin The Place of Equity and Equitable Doctrines in the
Contemporary Common Law World: A Canadian Perspective in Donovan W. M.
Waters (ed.) Equity, Fiduciaries and Trusts (Scarborough, Ontario: Carswell,
1993) pp 37-44, 50-53 [8 pages]
Ethan J Leib, Friends as Fiduciaries (2008-2009) 86 Wash U L Rev 665 pp 666668 and 686-697 [17 pages for excerpt, 69 for whole]

11
Fiduciary
March Obligations in
21&23 Professional
Contexts

Tension between
restriction and expansion
of legal categories

Interaction
between fiduciary
duty and
tort/contract

Case law:
-

Norberg v. Wynrib [1992] 2 SCR 226, 92 DLR (4th) 449 [102 pages doublespaced]
Hodgkinson v Simms [1994] 3 SCR 377 [117 pages double-spaced]

Commentary:
-

Sarah Worthington Fiduciaries: When is Self-Denial Obligatory? (1999) 58(3)

Cambridge Law Journal 500-508 [9 pages]
Margaret Isabel Hall, Intuitive Fiduciaries: The Equitable Structure of Family
Life (2002), 19 Can.J.Fam.L. 345 370 [27 pages]

No Class on Monday 28 March

13
Creativity and
March change?
30 and
April
4

Todays common law?

Institutional abuse
and the limitations
of fiduciary duty in
a non-economic
context

Case law:
-

K.M. v. H.M. [1992] 3 SCR 6 [73 pages double-spaced]

A.(C.) v. Critchley (1998) 166 D.L.R. (4th) 475 (B.C.C.A.) [30 pages]
F.S.M. v. Clarke [1999] B.C.J. No.1973 (B.C.S.C.) [45 pages]

Commentary:

D.G. Reaume & P. Macklem, Education for Subordination: Redressing the

Adverse Effects of Residential Schooling, a research paper submitted to Royal
Commission on Aboriginal Peoples (Canada) in For Seven Generations (Ottawa:
Libraxus Inc. CD-ROM, 25 April 1996) cont. [34 pages]
Stephen Waddams, Conclusion: The Concept of Legal Mapping in Dimensions
of Private Law: Categories and Concepts in Anglo-American Reasoning
(Cambridge: Cambridge University Press, 2003) at 222 [12 pages]
Lord Devlin, Judges and Lawmakers [1976] Modern Law Review 1 [17 pages]
Lord Goff, The Future of the Common Law (1997) 46 International and
Comparative Law Quarterly 745 [16 pages]

To Be Announced for Wednesday April 6

10