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Probing 笔补耻锄茅 v Gauvin and Chaput v Romain: Case Context and Comparative Reasoning in the Supreme Court of Canada

By Grace Forster, 2L, Faculty of Law, 看片视频 University

The Supreme Court of Canada (SCC) is unique among final courts of appeal due to its bijural nature. Nine judges are responsible for deciding cases rooted in the common or civil law tradition, posing methodological challenges for judges trained more thoroughly in one legal system or the other. However, the SCC鈥檚 bijural structure also creates numerous opportunities for comparative reasoning. Although certain scholars have explored the use of comparative reasoning within the SCC, they have tended to focus on providing a broader overview.¹ As such the approaches of individual justices in found in specific cases remain available to identify patterns or variations in individual methodologies.

This probe focuses on the differing approaches to comparative reasoning of Justice Robert Taschereau and Justice Kellock in two cases in the early 1950s:² 笔补耻锄茅 v Gauvin and Chaput v Romain. In addition to coming in close succession, these cases are both appeals from the Court of Appeal of Qu茅bec, varied or overturned by the Supreme Court. Both also engage with the correct interpretation of Quebec legislation, the Architects Act and the Magistrate鈥檚 Privilege Act, respectively. Finally, both Kellock and Taschereau JJ provide reasons in each case, but their respective approaches to comparative analysis are not consistent between the two cases. As such, they are fruitful sources to get a snapshot of comparative reasoning in the Supreme Court.

The 1950s is an exciting period for the study of comparative reasoning for several reasons. First and foremost, it represents a period of structural and historical change in the Supreme Court of Canada. In 1949, the Supreme Court became the highest appeals court in Canada after appeals were eliminated to the Judicial Committee of the Privy Council (JCPC).³ The bench was also increased from seven to nine judges, meaning at least three judges were trained in civil law rather than two. This allowed civil law judges to constitute the majority of the bench for the first time, as a quorum was five judges.

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The elimination of appeals to the JCPC also reignited ongoing concerns about biculturalism and bilingualism, reflected in a comprehensive study of 鈥淭he Supreme Court of Canada as a Bilingual and Bicultural Institution鈥� commissioned as part of the Royal Commission on Bilingualism and Biculturalism.⁴ One of the points of interest was the court鈥檚 treatment of the dualism of common law and civil law and the potential for 鈥渓arge-scale infiltration of common- law principles into Quebec鈥檚 civil law.鈥�⁵ The study also identified the increasing number of cases since 1949 that involved 鈥減otentially bi-cultural issues鈥� including family relationships, morals, religious beliefs, education and civil liberties.鈥�⁶

笔补耻锄茅 v Gauvin and Chaput v Romain are cases that engage with some of these areas and provide an opportunity to examine how two Supreme Court Justices reasoned in the face of these pressures. In a review of Supreme Court cases between 1950 and 1980 that engaged with comparative reasoning, both were among the top ten most significant cases of the seventy-five identified with comparative aspects.

笔补耻锄茅 v Gauvin is a private law case that intermingles with issues of public regulation. It concerns a civil engineer who undertook to prepare plans and specifications and supervise the erection of a building for the appellants. Said engineer claimed for disbursements and fees after the appellant refused to pay on the basis that the Architects Act, RSQ 1941 c 272, barred a civil engineer鈥檚 preparation of plans and specifications. The Court of Appeal maintained the civil engineer鈥檚 action.

Five justices heard the case. Three were from common law provinces: Kellock, Estey and Cartwright JJ, while two were civilian judges from Qu茅bec: Taschereau and Fauteux JJ. Cartwright J sided with Taschereau and Fauteux JJ to allow the appeal in part, with Rand and Kellock JJ dissenting. The majority found that the contract for plans and specifications was voided by virtue of the Architects Act but found that the engineer could recover for the contract to supervise the work, as it was severable from the agreement to prepare the plans and was not in breach of the statute.⁷ In contrast, Rand and Kellock JJ agreed that the Architects Act voided the contract and did not feel the supervisory clause was severable from the broader agreement.⁸

Although Kellock J and Taschereau J came to opposing conclusions, they highlighted similarities between doctrinal principles in common law and civil law. Justice Taschereau began by citing various Qu茅bec cases that indicate that the Architects Act is a statute of public nature that can nullify contracts made in violation of it.⁹ He then turned to whether the supervision agreement was severable from the broader contract. He cites the doctrine of severability as described in Larombi猫re (Th茅orie des Obligations) and Dalloz, Jurisprudence G茅n茅rale, which states:

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Lorsqu'une vente valable et une vente nulle ont 茅迟茅 faites par le m锚me acte, mais sans lien n茅cessaire entre elles, l'acte est valable pour une partie et nulle pour l'autre.¹⁰

He then notes that English doctrine seems similar to French authorities, citing Putsman v Taylor and Pickering v Ilfracombe.¹¹ Given that this case strictly concerns Qu茅bec legislation and the severability of a term in a contract in Qu茅bec, there is no apparent need to mention common law doctrine. However, Justice Taschereau includes it, likely because the wording in the common law cases facilitates his conclusion. This choice demonstrates a degree of comfort with comparative reasoning where civil and common law legal principles clearly overlap.

The main distinction between Kellock and Tascherau JJ鈥檚 approach to comparison, in this case, is that Kellock J cites a wider variety of common law jurisprudence earlier in his judgement. He refers to Putsman v Taylor to highlight that for the promise to supervise the erection of the building to be enforceable, 鈥渋t must be on the face of the document a separate promise 鈥� independent of the performance of any promises which the promisor may have made.鈥�¹² However, he also introduces the US case Armstrong v Toler to utilize the following quotation:

I understand the rule, as now clearly settled, to be, that where the contract grows immediately out of, and is connected with, an illegal or immoral act, a Court of Justice will not lend its aid to enforce it.¹³

He also cites the same passage as Taschereau J in Dalloz but uses it to support his conclusion that the supervision agreement was 鈥渘ecessarily linked鈥� to the void agreement to prepare the construction plans. As such, Kellock J found it not to be a separate promise, and, therefore, unenforceable.¹⁴

Based on their reasons in 笔补耻锄茅 v Gauvin, Kellock and Taschereau JJ鈥檚 approaches to comparative reasoning are only subtly distinguishable. Both seem comfortable relying on English and French doctrine in private law cases in Qu茅bec, where the principles are substantially similar. The Qu茅bec or French law is considered primary given that it is a Qu茅bec case; however, reference to the common law is regarded as a helpful supplement. Kellock J does rely earlier and more heavily on a variety of comparative jurisprudence than Justice Taschereau to make his opposing conclusions, but they are primarily supported by the same sources as Taschereau J (Putsman v Taylor and Dalloz). It is understandable that Kellock would be more comfortable using common law comparisons as he hails from Ontario. However, the reasons of Justice Taschereau, who hails from Qu茅bec, do not demonstrate concern that this use of common law references will taint or lead to undue infiltration of common law principles into the civil law.

Chaput v Romain is the first of a trilogy of significant Supreme Court Cases upholding Jehovah鈥檚 Witnesses鈥� claims against Qu茅bec authorities.¹⁵ It concerns respondent members of the provincial police, who broke up an orderly meeting of Jehovah鈥檚 Witnesses in the appellant鈥檚 house. They seized a Bible, some hymns and booklets on religious subjects. The entry and seizure were made without a warrant, and no charge was laid against any participants. The seized items were not returned, and the appellant took action against the police officers for damages and the value of the articles seized. The trial court held that the officers acted in good faith and were relieved of responsibility due to statutory privileges under the Magistrate鈥檚 Privilege Act. The Court of Appeal confirmed the trial judge鈥檚 decision, but the Supreme Court ultimately allowed the action and assessed damages at $2000.¹⁶ Taschereau J and Kellock J came to the same conclusion in their reasons, entitling the appellant to $2000 in moral damages. However, they did so via very different approaches to comparative law.

Taschereau J entrenches his decision exclusively in civil law. He notes that the Qu茅bec statute 芦 n鈥檈xcusent en aucune mani猫re la responsabilit茅 d茅lictuelle ou quasi-d茅lictuelle qui r茅sulte de l鈥檃rticle 1053 du Code Civil. 禄¹⁷ As the officers鈥� actions were not in good faith and the Act does not provide immunity against delicts or quasi-delicts, Taschereau J concludes that the Magistrate鈥檚 Privilege Act cannot excuse the respondent police. Taschereau J also exclusively uses Qu茅bec jurisprudence to state that the authors of delicts or quasi-delicts are not punished, instead providing compensation to the victim.¹⁸ He cites French doctrine to establish that there is a prejudice suffered when extra patrimonial rights like freedom of expression are infringed and to confirm that the defendants cannot invoke as a defence that they were following the orders of a superior.¹⁹

Despite reaching functionally the same result as Taschereau J, Kellock J roots his analysis in a different interpretation of the law. Rather than turning to civil law, Kellock J argues that the common law must be used to interpret laws concerning police privilege. Specifically, in considering the Magistrate鈥檚 Privilege Act, he states:

It is therefore clear that this statute was enacted having in view the background of English common law and not the civil law, subject to such statute law as had the force of law in Canada鈥�Questions which concern the relation of the subject to the administration of justice in its broadest sense are part of the public law and therefore governed by the law of England and not by that of France.

This perspective leads Kellock J to focus initially on common law jurisprudence to interpret said Act. Kellock J affirms that the officers are missing the 鈥済ood faith鈥� requirement of section 7 of the Magistrate鈥檚 Privilege Act and cannot benefit from its protections.²⁰ Kellock J cites Hermann v Seneschal as establishing the requirement for good faith as a 鈥渂one fide belief in the state of facts which, had they existed, would have justified him in acting as he did.鈥�²¹ He then turns to Cann v Clipperton to clarify that 鈥渁 person would not be protected 鈥榠f he has not some ground in reason to connect his own act with the statutory provision.鈥欌��²² He does cite two Qu茅bec cases, Trudeau v Kennedy and Lachance v Casault, but merely to confirm the principles outlined in the common law analysis.²³

In rejecting the possibility of awarding punitive damages, Kellock J does rely on article 1053 of the civil code as governing the scope of damages recoverable for the damage caused by another鈥檚 fault.²⁴ However, Kellock also notes that 鈥渋n a case to which the [Magistrate鈥檚 Privilege Act] is applicable, the right to recover 鈥� authorizes an award of common law damages.鈥�²⁵ He carefully highlights that both the civil code and the Magistrate鈥檚 Privilege Act 鈥渉ave stood side-by-side since the enactment of the Code in 1866.鈥�²⁶

Both Tascherau J and Kellock J utilize comparative law in Chaput v Romain in ways that differ from their reasoning in 笔补耻锄茅 v Gauvin. Given that the civil law is paramount in Qu茅bec, Taschereau strongly resists using the common law to decide this case or to decide on damages. His reasons demonstrate a much more defensive understanding of the civil law that seeks to keep the common and civil law much more separate than in 笔补耻锄茅 v Gauvin. A strong example of this is found in his discussion of damages, where he states, 芦 [I]l existe quand m锚me non pas un droit des dommages punitifs ou exemplaires, que la loi de Qu茅bec ne conna卯t pas, mais certainement un droit des dommages moraux. 禄²⁷ Mentions of common law principles are to assert their inapplicability rather than noting any similarities. Taschereau J chooses not to discuss the common law approach to 鈥渂onne foi鈥� as a comparative exercise or to support his approach to the relevant legal questions.

In contrast, Kellock J chooses to focus on the common law; however, much like Taschereau J, it is to protect the paramountcy of one legal system. His discussions of the history of the Magistrate鈥檚 Privilege Act are not to contrast common law legislation with legislation created in Qu茅bec but rather to dismiss the interpretive importance of the civil law in this case. This is more reminiscent of the early assimilationist tendencies in the Supreme Court, in which the Supreme Court sought to ensure Qu茅bec law was consistent with the law of the other Common Law provinces, often at the expense of the Quebec civil law principles.²⁸

Taschereau J and Kellock J鈥檚 use of comparative reasoning in these two cases is different but not necessarily inconsistent. The perceived differences can be explained by the subject matter of each case and the social context that is particularly applicable to Chaput v Romain. 笔补耻锄茅 v Gauvin was a contracts case that involved the applicability of a particular public statute to specific professions (architecture and engineering). It was not an issue of broad public interest nor particularly politically controversial. Therefore, Taschereau J most likely felt more comfortable noting common law doctrine supporting his perspective. It is unlikely that anyone would be concerned about an affront to the civil law in this area, as the principle was the same as in common law, and Taschereau J highlighted the civil law. Notably, the comparison concerned a general principle, severability, not the interpretation of public legislation, the Architect鈥檚 Act.

In contrast, Chaput v Romain involved a sensitive political issue in Qu茅bec. It was one of several cases heard by the Supreme Court that involved clashes between Jehovah鈥檚 Witnesses and the Roman Catholic majority resulting in controversial 鈥渕easures adopted by Qu茅bec authorities to curtail the activities of Jehovah鈥檚 Witnesses.鈥�²⁹ Interestingly, Chaput v Romain is the only of these cases in which Justice Taschereau sided with the majority in condemnation of the government鈥檚 (or public actor鈥檚) actions.³⁰ In the other cases, Taschereau and the other judges from Qu茅bec tended to 鈥渟how a positive interest in finding constitutional support for the measures adopted by the Qu茅bec authorities.鈥︹��³¹

Given the perceived threats posed by Jehovah鈥檚 Witnesses to Qu茅bec culture and legal authority, Justice Taschereau had all the more incentive to root his decisions uniquely in the civil law and move away from the common law. Given the egregiousness of the police officers鈥� actions, finding a compelling legal argument for siding against the plaintiff would have been challenging. However, Justice Taschereau would not want to inflame tensions further by rooting his judgement in common law principles, which could undermine the legitimacy of the decision in certain circles.

By Grace Forster, 2L, Faculty of Law, 看片视频 University

The 1976 Supreme Court judgement Harrison v Carswell has primarily attracted academic commentary for the creative approach to common law trespass advocated for by Laskin CJ in his dissent.¹ However Carswell is also notable for Laskin CJ鈥檚 unique use of comparative reasoning to civil law to support an evolution of the common law. This probe will explore how Laskin CJ鈥檚 dissent interweaves values developed in his labour law career with comparative legal reasoning, an approach that anticipates Kasirer J鈥檚 reasons in the 21^st- Century Supreme Court decision CM Callow v Zollinger.² Carswell is thus a herald of the modern treatment of comparative reasoning and an important link in the evolution of bijuralism in the Supreme Court.³

Carswell concerns an employee of a tenant of a store in a shopping centre who participated in a lawful strike and then picketed peacefully on the sidewalk in front of the tenant鈥檚 store.⁴ She was subsequently charged with four charges under the Petty Trespass Act. The convictions were quashed by the Manitoba Court of Appeal and appealed by the shopping centre owner to the Supreme Court, where the majority allowed the appeal and restored Carswell鈥檚 convictions. They did so based on precedent in R v Peters, which confirmed that an owner with sufficient possession of the common areas of their property can invoke the remedy of trespass.⁵

Laskin CJ鈥檚 dissent centred on his concerns over the majority鈥檚 鈥渕echanical deference to stare decisis 鈥︹�� referring to R v Peters.⁶ R v Peters was an Ontario Court of Appeal case upheld by the Supreme Court, in which the writ of trespass was invoked against a protester at a shopping centre who advocated boycotting the selling of California grapes.⁷ The majority felt that the circumstances were sufficiently similar to make R v Peters binding.⁸ However, Laskin condemns the invocation of 鈥渁n ancient doctrine, in this case, trespass鈥�in a new setting to suppress a lawful activity supported both by legislation and by a well-understood legislative policy.鈥�⁹ He feels that the labour law aspects of this case distinguish it in fact and law to the extent that R v Peters is not a controlling authority.¹⁰

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Instead, Laskin CJ frames R v Peters as one of the competing positions on the issues that the Court must examine. If R v Peters favours consistency in the availability of common law remedies, then Laskin CJ seeks to inject a contrasting public policy approach. Specifically, he questions the wisdom of applying trespass protections for private residences to shopping centres so that the owner may order any public member to leave when there is no 鈥減roper reason in that member鈥檚 conduct or activities to justify the order鈥�¹¹ He states that when a member of the public uses amenities like a sidewalk or parking areas of a shopping centre, there is no challenge to the owner鈥檚 title, possession or privacy as other members of the public continue to use the property.¹² Invoking trespass in this case remedies a legal but not an actual injury, possibly at the expense of a genuine public interest in an individual being on said property, as in the case of a legal strike.¹³

As a result of this analysis, Laskin CJ states that 鈥渢he present case involves a search for an appropriate legal framework for new social facts which show up the inaptness of an old doctrine.鈥�¹⁴ This new framework would recognize the picketer鈥檚 entitlement to remain in public areas, an entitlement that stems from her 鈥渉aving an interest, sanctioned by the law, in pursuing legitimate claims against her employer through the peaceful picketing in furtherance of a lawful strike.鈥�¹⁵ As a source of 鈥渋nspiration鈥� for the new legal framework that meets these circumstances, Laskin CJ turns to Qu茅bec civil law.¹⁶

Laskin CJ states that 鈥渢he civil law doctrine of abusive exercise of rights provides an apt analogue for the present case.鈥�¹⁷ He notes its applicability comes from embracing a 鈥渂alancing of rights, a consideration of the relativity of rights involving advertence to social purposes as well as to personal advantage.鈥�¹⁸ As described by Moyse, the abuse of rights doctrine requires one to accept that an act 鈥渃an entirely conform to the law while being judged contrary to 鈥榣aw鈥� in terms of a scheme of social organization with a particular purpose.鈥�¹⁹ Where an individual 鈥渆xercises a right asocially鈥� in a way that disrupts the rights of others, the abuse of rights doctrine allows the Court to recognize and censure its use.²⁰

The approach underlying the abuse of rights doctrine is amenable to the modern, social- forward approach to common law principles that Laskin CJ seeks to implement. It allows Laskin CJ to consider the picketer as having 鈥渃ause for complaint against interference with her.鈥�²¹ In contrast, 鈥渢he shopping centre owner has no overriding or even co-equal interest to serve in intervening in the labour dispute.鈥� This in combination with the fact that the picketer is not interfering with any substantial interests, leads Laskin CJ to censure the shopping centre owner鈥檚 invocation of trespass.²²

To those familiar with Laskin CJ鈥檚 professional history, his flexible, social-oriented approach to competing labour and private rights is unsurprising. Laskin began publishing on labour law in 1937 with an article entitled 鈥淧icketing: A comparison of certain Canadian and American doctrines.鈥�²³ In this work, 鈥渉is specific focus was the failure of the common law to recognize the interests of organized labour in the context of picketing disputes.鈥�²⁴ His approach in this article, extending into his role as an arbitrator and judge, conceptualized law 鈥減rimarily as a system of duties, involving the proper recognition of the interests of others as a necessary limitation upon self-interest.鈥�²⁵

Harrison v Carswell provided a perfect opportunity to espouse the perspectives Justice Laskin developed early in his career. It involved a picketing case in which a 鈥榗reative鈥� legal solution was needed to recognize the interests of 鈥榦rganized labour.鈥� However, the fact that he turned to an example of a civil law principle to support his creative solution is much more unusual. Justice Laskin鈥檚 legal education was firmly rooted in the Common Law, having received a BA in law from the University of Toronto, a MA and LLB from Osgoode Hall and an LLM from Harvard Law School.²⁶ He was not known for focusing on comparative law and 鈥渘ever took any particular interest in Qu茅bec.鈥�²⁷ Although Laskin occasionally used comparative reasoning throughout his tenure, he typically confined it to noting similar legal principles between the common and civil law.²⁸ His approach in Harrison v Carswell was unusual enough for Phillip Girard to speculate that it was, in fact, fellow justice Beetz J who suggested the reference to the civil law.²⁹

Whether Laskin CJ originated the civil law comparison or it came from a collaborative dialogue, it provides an early example of what Jukier terms 鈥渢he inspiration model鈥� of common and civil law reasoning.³⁰ This involves the comparative use of references to Canada鈥檚 two legal systems not to assimilate the civil law into the common law but to clarify and supplement the Court鈥檚 understanding of legal concepts. Such an approach became much more common in the 21^st Century, and was explained by Justice Kasirer in CM Callow v Zollinger.³¹

In Callow, to support their argument of the breach of expanded duty of honest performance in contracts found in the common law, the appellants referenced 鈥渢he theory of the abuse of contractual rights set forth in arts. 6, 7 and 1375 of the .鈥�³² After lauding the value of this comparison in the specific case, Kasirer refers to the SCC鈥檚 ongoing approach to comparative bijural reasoning, stating:

Mindful no doubt of its unique vantage point, which offers an occasion to observe developments in both the common law and the civil law in its work, this Court has often drawn on this country鈥檚 bijural environment to inform its decisions, principally in private law appeals. While this practice has varied over time and has been most prevalent in civil law cases in which common law authorities are considered the influence of bijuralism is not and need not be confined to appeals from Quebec or to matters relating to federal legislation.³³

Laskin CJ鈥檚 reasons in Harrison provide a crystal clear example of the approach espoused by Kasirer J. He utilizes a bijural analysis in an appeal from a common law province to resolve a legal problem addressed in civil law, an example in the Supreme Court鈥檚 reasons of a reference to the civil law as inspiration for changing the law in a common law jurisdiction.³⁴

Furthermore, both Laskin CJ and Kasirer J root their comparison in the same civil law doctrine, the abuse of rights.³⁵ However, Kasirer J fails to note Carswell in his judgment in Callow as an example of the court drawing on its bijural environment, perhaps indicating the extent to which these reasons have been overlooked as an important revolutionary example of comparative reasoning.

Laskin CJ鈥檚 reasons in Harrison v Carswell has been recognized as a demonstration of Laskin CJ鈥檚 sociological, balancing approach to labour law in which Laskin sought to develop the common law in order to better recognize the interests of workers instead of prioritizing capital.³⁶ However, Harrison v Carswell is also a unique approach to comparative reasoning. Laskin CJ鈥檚 reference to the abuse of rights doctrine in the civil law helps clarify his approach to the balancing of the picketer鈥檚 rights and that of the shopkeeper. It helps him advocate for a public focused limit to theoretical property rights, and demonstrates his legal ideology rooted in social purpose and common sense reasoning. It aligns clearly with the approach advocated for by Justice Kasirer in CM Callow and is therefore a perhaps overlooked model for 21^st-Century bijural reasoning in the Supreme Court.

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1. Harrison v Carswell, [1976] 2 SCR 200, 1975 CanLII 160 [Carswell]; See e.g.. Philip Girard, Bora Laskin: Bringing Law to Life, (Toronto: University of Toronto Press, 2005) 454 鈥� 57; David Beatty & Brian Languille, 鈥淏ora Laskin and Labour Law: From Vision to Legacy鈥� (1985) 35:4 U Toronto LJ 672 at 712.
2. CM Callow Inc v Zollinger, 2020 SCC 45 [Callow].
3. See memo by Mario
4. See Carswell, supra note 1 at 200.
5. See ibid, citing Regina v Peters [1971], 17 DLR (3d) 128 at 202, 1971 CanLII 1141.
6. See Carswell, supra note 1 at 202.
7. See ibid at 203鈥�04.
8. See ibid at 200鈥�01.
9. See ibid at 202.

10. See ibid at 205.
11. See ibid at 207.
12. See ibid at 208.
13. See ibid.
14. See ibid at 209.
15. Ibid.
16. See Rosalie Jukier, 鈥淐anada鈥檚 Legal Traditions: Sources of Unification, Diversification, or Inspiration?鈥� (2018) 11:3 Can Bar Rev 75.
17. See Carswell, supra note 1 at 209.
18. Ibid.
19. Pierre-Emmanuel Moyse, 鈥淟鈥檃bus de droit : l鈥檃nt茅norme 鈥� Partie 1鈥� (2012) 57:4 看片视频 LJ 859 at 868 [translated by author].
20. Ibid at 866.
21. See Carswell, supra note 1 at 209.

21. Ibid.
22. Bora Laskin, 鈥淧icketing: A comparison of certain Canadian and American doctrines鈥� (1937) 15:1 Can Bar Rev 10.
23. Beatty & Lagille, supra note 1 at 678.
24. Bora Laskin, 鈥淐ollective bargaining and individual rights鈥� (1963) 6:1 Can Bar J at 278.
25. See Supreme Court of Canada, The Supreme Court of Canada and its Justices (Ottawa: Dundern Group and the Supreme Court of Canada, 2000) at 66.
26. Girard, supra note 1 at 180.
27. See MacDonald et al v Vapor Canada Ltd, [1977] 2 SCR 134 at 150鈥�151, 1976 CanLII 181; Guardian v听Victoria Tire Sales, [1979] 2 SCR 849 at 852, 855, 1979 CanLII 234; Robinson v Countrywide Factors [1978] 1 SCR 753 at 775-776, 1977 CanLII 175.
28. See Girard, supra note 1 at 457.
29. See Jukier, supra note 16 at 94.

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30. Callow, supra note 2.
31. Ibid at para 56.
32. Ibid at para 58.
33. Based on a survey on comparative law cases between 1876 and 2022. See probe by Mario.
34. Although Harrison involved abuse of property rights and Callow abuse of contractual rights.
35. See Beatty & Languile, supra note 1.

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