1275 and the Business of Law
A piece in the TimesOnline got me thinking in that rambling, associative sort of way appropriate to the second day of the year. Patrick Hosking’s “The law is now an asset class” introduced me to the notion of litigation “as a separate asset class.” According to Hosking, some investors are financing European lawsuits that look like promising sources of profit. Indeed, a new company, (sadly) called Juridica has raised £80 million for such investments.
As you might expect, the article goes on to mention champerty ((http://en.wikipedia.org/wiki/Champerty)), which, together with the other ancient wrongs of maintenance and barratry, tried to keep some separation between law and business. Of course, this is finally going out the window, as it had to in a system that accepts contingency fees and the fee structure that obtains with respect to class actions.
But this led me to wonder about Ontario law respecting champerty generally — which is where 1275 starts to come in — as a date, not a price. A search for “champerty” in Ontario’s e-Laws Current Consolidated Law turns up only the Class Proceedings Act, 1992, s.33, which, as noted, licenses contingency fees in class actions “despite the Solicitors Act and An Act Respecting Champerty, being chapter 327 of Revised Statutes of Ontario, 1897.” The Solicitors Act permits contingency fees in other actions. And An Act Respecting Champerty? Nowhere to be found, at least not by searching e-Laws. However, a look into the “Table of Unconsolidated and Unrepealed Public Statutes” gives us the citation at least and a direction to “See/voir R.S.O. 1980, Appendix A,” which, of course, can’t be done online.
Here’s a divagation: What a strange catalogue this Table is. It’s reminiscent of the marvelous classification of animals in Borges’ Emporium of Benevolent Knowledge (“…fabulous ones, stray dogs, those included in the present classification, those that tremble as if they were mad…”), for here you’ll find, dusty cheek by fusty jowl: Academy of Medicine, Toronto Act, 1946;An Act respecting Law Fees and Trust Funds; An Act for the settlement of questions between the Governments of Canada and Ontario respecting Indian Lands; An Act relating to the Avenues and Approaches to Queen’s Park, Toronto…
And some pretty heavy-weight statute law as well, because here are, in mention at least:
- An Act respecting Certain Rights and Liberties of the People — a.k.a. the Magna Carta (1215), or a bit of it
- An Act Respecting Uses — a.k.a. the Statute of Uses (1535)
- An Act Respecting Real Property — a.k.a. Quia Emptores (1290)
- An Act concerning Monopolies, and Dispensation with penal laws, etc. — a.k.a. the Statute of Monopolies (1623); and
- An Act Respecting Champerty, a.k.a. the Champerty Act (1275)
— all unrepealed but too unimportant, like the Chartered Shorthand Reporters Act to have their text online?
Google to the rescue. In searching for the Champerty Act on Google, I found the quarry which is indeed on the e-Laws site, but on a page entitled CONFIDENTIAL. I ran a search in Google for similarly titled pages and found the five missing laws just mentioned, all bearing the mysterious title CONFIDENTIAL. Now, it’s probably the case that these are draft pages that were never meant to be found by the public for some reason or other, hence the “confidential” label. Still, it’s almost comic that these most basic legacies of the English heritage of Ontario law should be kept under wraps. It’s also comic I suppose that if the e-Laws folks did want to keep these pages confidential they should have sent a “no-follow” message to Google.
And the Champerty Act? Here it is in full:
R.S.O. 1897, CHAPTER 327
An Act respecting ChampertyHis Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
Definition of Champertors
1. Champertors be they that move pleas and suits, or cause to be moved, either by their own procurement, or by others, and sue them at their proper costs, for to have part of the land in variance, or part of the gains. 33 Edw. I.Champertous agreements void
2. All champertous agreements are forbidden, and invalid. (Added in the Revision of 1897.)
So it’s not at all clear that “moving pleas and suits” will make you any legitimate money here in Ontario. Yet.
The Legislation Act, 2006 (Sched F to the Access to Justice Act, 2006, S.O. 2006 c. 21) repealed a huge number of the previously unconsolidated and unrepealed statutes. Those that are left are listed in s. 98 of the Legislation Act, 2006.
It was a formidable task to decide which old statutes were really dead and which might have a life left in them.
The Champerty Act and the Act respecting certain rights and liberties of the people are mentioned in the list, thus still not repealed.
I do not know why the pages labelled ‘confidential’ are accessible by search via Google, though not by search via e-laws itself. It is possible that those pages are internal versions of Ontario statutes for the use of the Office of Legislative Counsel, which one imagines may well have a good use for a current copy of all legislation in effect in Ontario, even if not consolidated.
It is not completely obvious just what one would have to do to move a statute from the ‘unrepealed’ list to the current consolidated law list. For example, would it need to be translated into French, as are all currently consolidated Ontario statutes, and then would the Legislature have to enact the statute’s French version, as was done for the RSO 1990s and as has been done for all Ontario statutes since that time (and for some before 1990)? Is this a good use of legislative time? (Not that such a bill should be controversial, except for the selection of statutes to consolidate, perhaps.)
Is there a case for making accessible online the unrepealed, unconsolidated statutes (i.e. without formall consolidating them), even if they are not in a form that would be acceptable for a statute enacted today? Under what conditions?
Thanks for the clarification, John. The s.98 in Schedule F you refer to seems to be identical to the table found on the e-Laws site of the unrepealed acts — which makes sense. I hadn’t noticed that column three identifies parts of the acts that remain unrepealed; though in some cases — the Monopoly Act, for example — I’m just referred to the Appendix A of R.S.O 1980, which I don’t think I can find on line.
I notice in a number of places in the Legislation Act that a power is given to an official to put this or that unrepealed act into e-Laws. I hadn’t thought about the delicious task of translating 13th century English into French. Perhaps Norman law French would be the best choice, if it had to be done.
e-Laws should probably have, or point to, a historical documents section, where the text of outmoded but classic laws could be stored for consultation.
The e-Laws site lists the five Imperial statutes in force in Ontario (including the Magna Carta and the Act respecting Champerty) on its “Links” page (since they are not statutes enacted directly by the Legislature). The full texts of those statutes as now in force in Ontario (not every section of the originals) are online and – as the name of the page tells us – are accessible through that page. The texts are no longer marked ‘confidential’, and as one can tell by their presence on the Links page (which is not new), not to mention their legal status in general, should never have been.