Book Review: The Canadian Law of Obligations: Access to Justice

Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.

The Canadian Law of Obligations: Access to Justice. Edited by Hilary Young. Toronto: LexisNexis Canada, 2020. xxx, 255 p. Includes illustrations, bibliographic references, and index. ISBN 9780433505754 (softcover) $130.00. 

Reviewed by Emily Nickerson
Law & Business Librarian
Diana M. Priestly Law Library, University of Victoria
In CLLR 46:2

The Canadian Law of Obligations: Access to Justice is a compilation of nine scholarly legal papers on the law of obligations and the rights and duties that exist between individuals. The book is a product of the second biennial Canadian Law of Obligations conference held at the University of New Brunswick in 2019. This conference brought together legal scholars who presented and discussed how the Canadian law of obligations should evolve, particularly in light of the need for greater access to justice.

The editor, Hilary Young, is an associate professor at the University of New Brunswick’s Faculty of Law and one of the authors of the eleventh edition of Feldthusen and Linden’s Canadian Tort Law. Young served as the organizer of the 2019 conference and undertook the role of selecting and editing the papers in this compilation. Young also features as a co-author of one of the papers in the compilation.

The book is divided into three parts and nine chapters. The three parts are Contract Law, Tort Law, and Property, Procedure, and Unjust Enrichment, and each chapter presents one paper from the conference. For finding tools, the book includes a table of contents and a table of cases. Each paper is between 20–35 pages long and includes an abstract, its own table of contents, and extensive footnotes and bibliographic references. The book contains an index for the full collection of papers. The book is the second volume in The Canadian Law of Obligations series and follows The Canadian Law of Obligations: Private Law for the 21st Century and Beyond, which was published in 2018.

Each paper in the book presents multiple perspectives on seminal and burgeoning topics falling within the law of obligations and puts forth creative considerations for facilitating access to justice such as innovative technologies, the simplification of certain torts, and the rethinking of certain substantive aspects of the law of obligations. An underlying theme throughout the compilation is the idea of pushing boundaries and thinking differently about traditional tort and contract law problems with a lens toward access to justice. Select papers featured in the book address subjects such as unconscionability in clauses used to access adjudicative procedures for disputes; the recent destabilization of the law of unjust enrichment by the Supreme Court of Canada in Moore v Sweet, 2018 SCC 52; and how adverse possession both undermines property law and illuminates its social and communal nature. 

A notable contributor to the book is Angela Swan, who served as the conference’s keynote speaker. Swan is counsel at Aird and Berlis LLP, adjunct professor at Osgoode Hall Law School at York University, and author of the fourth edition of Canadian Contract Law alongside other academic legal works. Swan’s paper falls within and introduces the Contracts part of the book. In her paper, Swan criticizes the formalistic approach to how law practitioners and students begin thinking about a contract law problem. To a certain extent, the paper is drafted for law students and academics. Swan challenges them to approach contract law problems from the point of view of a practicing solicitor and by using a client-centered approach. Litigation and economics are still very much in the background, but the focus is on using the law for an agreement to achieve a beneficial outcome for both parties.

Young’s paper, co-authored with Emily Laidlaw, is one of several papers having a tort focus. It tackles the timely and sensitive topic of creating a new tort for revenge porn as well as developing better laws to fast-track proceedings for the effective de-indexing of websites and the takedowns of non-consensual disclosures of intimate images. Their paper is the result of research funded by the Social Sciences and Humanities Research Council and was written by invitation from the Uniform Law Conference of Canada. 

The final paper is authored by Shannon Salter. Salter serves as the chair of the Civil Resolution Tribunal of British Columbia, Canada’s first online tribunal that resolves small claims, condominium disputes, and motor vehicle disputes. Salter addresses the access to justice crisis in Canada as requiring a fundamental shift away from the needs of judges and lawyers toward the needs of the public. Her article includes interviews with community legal advocates in British Columbia on the court fee waiver process and proposes a 10-part, human-centered design framework that may be adopted by courts and tribunals across Canada. 

Overall, this book serves as a timely addition to the existing body of literature covering contracts, torts, and restitution. The papers in this volume invite readers to challenge the status quo and re-examine current assumptions on how traditional problems relating to contracts, torts, property, unjust enrichment, and civil procedure are addressed. The papers are each written with the underlying intention of reducing barriers present in people’s actual lived experience. 

This book would suit as an addition to an academic library. It is likely to assist researchers seeking to contextualize the application of the law of obligations and would be useful for course readings and class discussions in the area. The book would also suit as an addition to public and private law libraries and the collections of practitioners as it offers new and timely perspectives on traditional private law issues.

Comments

  1. Does anyone else find it outrqgeous that this collection of papers costs $135? It looks really interesting and I’d love to read it, but I think that price is simply nuts. How much of that money goes to the authors and editor? If it is anything like similar projects I’ve been involved in, the answer is zero or close to it.

    Judging from the product page the publisher has not even made an online version available. Can that really still be the case in 2021?! For $135 shouldn’t readers at least get access to a PDF or Ebook along with the hard copy?

    My employer (Windsor Law) would probably pay the $135 if I requested the book for the library. But I’m not going to, because I think the price is exploitative. Instead I’ll look for early drafts online of the parts of the book that interest me, or email the authors and ask for them.

    As an author and editor and reader, I am just about done with the whole exorbitantly-paywalled legal publishing industry. It’s no longer the only game in town. If I were a legal publisher I would be very afraid of CanLii (which is now basically a full-featured, open-access legal publisher) and the rest of the open-access publishing movement.

  2. One of the ironies regarding the pricing of a legal publications is that the price can only increase when consumers of legal information boycott a title because of price. It is a fact that the setting of a price for a legal publication is based on the cost of production and marketing combined with the projected number of purchasers. The more purchasers, the lower the price, and vice versa.

    Purchases of high quality content by law libraries were always the bedrock for publishing legal monographs and treatises in that they ensured cost recovery for the legal publisher and some, if limited, return for the authors and editors. The publisher earned only what was left over, frequently very little.

    Authors and editors have a choice when it comes to choosing a publisher. Many prefer the traditional legal publishers who add significant value to publications through the editing process. For some authors and editors, publication by a traditional legal publishers is seen as an endorsement of the content that is valued by potential purchasers.

    There is no exorbitantly paywalled legal publishing industry. That is a long discredited conspiracy theory. There are and always have been customers who complain about the price. Nothing has really changed. In fact, allowing for inflation, the prices are little different if not much less than before.

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