Precedent, Principle and Pragmatism: Justice Wilson and the Expansion of Canadian Tort Law

Supreme Court Law Review, Vol. 41, pp. 131-160, 2008

16 Pages Posted: 23 Apr 2010 Last revised: 7 May 2010

See all articles by Kate Sutherland

Kate Sutherland

York University - Osgoode Hall Law School

Date Written: 2008

Abstract

This article focuses on Justice Bertha Wilson’s tort decisions, analysing them as a body with a view to determining whether a coherent tort theory or philosophy underpins them. At first glance, a thread to connect this body of decisions is elusive; indeed, on the surface, a number of them 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 such contract and family law from incursion by tort. And in other decisions, for example on duty of care in negligence, she positions herself somewhere between these poles, championing an incremental expansion of tort law where precedent allows and justice demands. But digging deeper into Justice Wilson’s tort decisions, common themes emerge which link them to one another and ground them 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 operated as an appellate judge, true to her liberal principles, and responsive to the practical concerns of the parties appearing before her.

Keywords: Justice Bertha Wilson, Judges, Judicial Decisions, Precedent, Tort Law, Tort Theory, Liberalism

Suggested Citation

Sutherland, Kate, Precedent, Principle and Pragmatism: Justice Wilson and the Expansion of Canadian Tort Law (2008). Supreme Court Law Review, Vol. 41, pp. 131-160, 2008, Available at SSRN: https://ssrn.com/abstract=1594350

Kate Sutherland (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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