An Open-Access Teaching Q&A With UBC Law Professor Samuel Beswick, Editor of Tort Law: Cases and Commentaries

Samuel Beswick is an assistant professor at the University of British Columbia Peter A. Allard School of Law. His primary scholarly interests are in the areas of torts, unjust enrichment, limitations, and remedies. Last year, Professor Beswick reached out to CanLII to discuss a new casebook and syllabus he was designing for his 1L Torts class. He wanted to create a teaching resource that would utilize CanLII’s online functionality and be freely accessible to students and professors. Last August, CanLII published the First Edition of his casebook. Now, we are thrilled to be able to share the Second Edition of Tort Law: Cases and Commentaries. In this Q&A with Professor Beswick, we discuss the development of his open-access casebook on CanLII and the impact it has had on his class and beyond.

“Uncle Dave / Kayak” coursebook cover image © Lauren Sansregret. The coursebook’s cover image is by one of Professor Beswick’s 1L students, whose works are viewable on Instagram (@sansregretlauren) and at https://sansregretart.wordpress.com/. 

Q: Professor Beswick, what was your motivation for developing your own casebook and why did you choose to publish it open access?

A: I got inspired after I created my own syllabus and in-house casebook for a course on Restitution. The reason I made that resource was that the Canadian law of unjust enrichment has been developing rapidly and there was no up-to-date casebook on the subject. For my Torts course there were a number of recent and foreign cases that I wanted to teach but that did not appear in the existing casebooks. So I decided to create my own. A colleague forwarded me CanLII’s call for book proposals. I was quite keen to compile something that could be freely shared, searched, and printed, that allowed for innovative design and content, and that could be easily updated. I reached out to you and I got to work.

Q: What teaching goals did you have in mind for the casebook?

A: There were two main themes I wanted the casebook to explore: the rule of law principle of equality under law and the judicial method of comparative common law reasoning. The casebook begins with A.V. Dicey’s famous passage outlining the equality principle: the idea that in common law systems public officials are, and ought to be, governed by the same laws that govern ordinary people (§1.1.1). The casebook explores this principle through many cases involving claims brought against police officers and other government officials. Teaching these cases last year lent to some wonderful class discussions (and exam answers) on both whether we should want tort law to apply equally to everyone, and whether/how tort law in practice falls short of holding public officials to account.

The comparative law theme is particularly close to my heart. My legal career began in New Zealand, after which I studied in the United States, practiced and taught law in England, and I now teach at a Canadian law school. My research and teaching is shaped by these experiences. One-third of the world’s population lives in a common law jurisdiction. A unique strength of the common law judicial method is that when judges encounter a novel argument they can and do look to how other jurisdictions have responded to the issue. I wanted students to see how judges here and abroad use foreign precedents in their reasoning. There are some fantastic cases from India (§2.2.2) and Hong Kong (§2.3.3) in the casebook that demonstrate attentive judicial dialogue between jurisdictions.

The casebook’s preface highlights other notable illustrations of these themes: the High Court of Australia’s judgment in Binsaris v. Northern Territory (§2.2.4) recognising incarcerated indigenous youths’ claims of unlawful battery by prison officers; the Supreme Court of Canada’s judgment in R v. Le (§2.4.4) addressing police racial profiling, trespass, and false imprisonment; the opinion dissenting from the Supreme Court of the United States’ denial of certiorari in Baxter v. Bracey (§6.6.9.2) concerning the US doctrine of qualified immunity from tort liability for government officers; and the Ontario Court of Appeal’s judgment in Cloud v. Canada (§19.7.2) certifying a class action of First Nations residential school survivors’ claims in negligence, battery, and assault.

Q: How is your casebook different from a conventional physical casebook?

A: There are differences in the type of content that this casebook has and doesn’t have. There is much less commentary than a conventional casebook and no notes and questions. It does not try to address topics exhaustively. The casebook is predominantly comprised of curated and edited cases and statutes, which are interspersed with snippets of articles and other scholarship. Instead of placing my own commentary within the casebook, my research assistant, Maddison Zapach, and I created a package of open-access multiple-choice quizzes, which draw on the casebook content and include our thoughts and questions. I also created several online guided exam answer exercises designed to help students learn to structure their analysis of exam-style tort questions.

A feature of the casebook that I found really paid off in the classroom was that it ‘follows’ cases through chapters. In curating the content I purposely sought out cases that address several points of tort law and edited them so that they reappear in different topics. The idea was to build up in-depth understanding of judgments over a term while minimizing the amount of ‘new’ cases students must learn. So, for example, different passages from Fitzpatrick v. Orwin, 2012 ONSC 3492 appear at seven distinct points in the casebook; Lu v. Shen, 2020 BCSC 490 appears in five different chapters. Hyperlinked cross-references connect the case extracts to each other across the casebook.

Another design decision was to arrange the negligence topic into two major blocks. Chapters 13 to 17 step through the five elements of the tort of negligence using landmark cases that are relatively uncomplex. Chapter 19 then explores how judges have grappled with those seemingly straightforward elements in over a dozen distinct “Difficult Categories of Negligence”. This means that students encounter conceptually difficult topics such as pure economic loss, the public authority ‘core policy’ versus ‘operational’ distinction, and residential schools litigation, with a good grasp of the basic structure of the tort. It also gives professors flexibility to pick and choose which difficult topics to cover in their syllabi.

Publishing the casebook with CanLII meant other features could be incorporated, such as:

• Judgment text and legislation references automatically hyperlinked to full-text versions hosted on CanLII and other open-access platforms;
• Links to further relevant materials on each topic, such as podcasts , videos , blogs , news , articles , and books .

The casebook is designed with flexibility in mind. Sections can be skipped over to suit different syllabi, or individual sections can be assigned as reading alongside instructors’ own course materials. It is free and useable in multiple formats: on CanLII’s online platform, as a PDF which can be printed in whole or in part into a physical coursebook, and in ePub format.

Q: The First Edition was the most accessed commentary document on CanLII in the last quarter of 2021 (Oct 1 – Dec 31) and first quarter of 2022 (Jan 1 – Mar 31) based on unique views metrics. This is a huge accomplishment and helps illustrate that the impact of this casebook has reached far beyond one classroom. What can you tell us about the user experience of this casebook from the student’s perspective?

A: I’m obviously biased, but from my teaching perspective I had so much fun leading my class through this material. Overlaying the other pedagogical goals I’ve mentioned, I just tried to pack the casebook with fascinating and relevant cases. I think the students enjoyed that. They certainly appreciated it being open-access. Anonymous feedback I received from two students was that “The online coursebook is very handy and accessible. The explanatory notes in the quizzes provide useful distillation of the material we’ve covered.” and “Very clear and easy to understand. Favorite course book for me.” I hope my class enjoyed learning from it as much as I enjoyed teaching it.

Q: What changes have you made in the Second Edition?

A: Teaching from the First Edition last year, I realized a bunch of case extracts were far too long (sorry, class!). So I re-edited all of the cases down to fit what I think is a manageable reading load.

The Second Edition incorporates a number of significant cases that came out this past year, including:

• Li v. Barber, 2022 CanLII 13686 (ON SC) (nuisance injunction against Ottawa truckers’ horn-blowing–a pointed illustration of tort law as civil recourse);
• R. v. Tim, 2022 SCC 12 (whether mistake of law excuses wrongful police arrest);
• Minister for the Environment v. Sharma [2022] FCAFC 35 and Smith v. Fonterra Co-Operative Group Limited [2021] NZCA 552 (claims in negligence and nuisance over climate change);
• Nelson (City) v. Marchi, 2021 SCC 41 (city’s duty of care over snow clearing and the policy/operational distinction);
• Armstrong v. Ward, 2021 SCC 1 (the standard of a reasonably prudent surgeon);
• Caplan v. Atas, 2021 ONSC 670 (the torts of defamation and harassment);
• ES v. Shillington, 2021 ABQB 739 (the tort of public disclosure of private information);
• Grant Thornton v. New Brunswick, 2021 SCC 31 (the limitation principle of discoverability).

The casebook also has several new chapters and sections, including an expanded chapter on defamation and harassment, a new section on tort law’s relationship with the Charter, including Francis v. Ontario, 2021 ONCA 197 and Canada v. Whaling, 2022 FCA 37 (prisoners’ claims for public law damages), and a section on tort law’s relationship with indigenous dispute resolution systems and principles, including Anderson v. Alberta, 2022 SCC 6 (the principle of reconciliation of indigenous and settler peoples).

Q: What have you learned from this experience?

A: I have developed an academic interest in open-access pedagogy. That was not something I expected going into this project. Since putting out the casebook other professors have reached out to me to discuss how they can create open-access materials for their courses. I love these discussions. I think we are at the precipice of an open-access revolution in Canadian legal education. I’m excited to be presenting on that subject this summer at the Canadian Law of Obligations conference, a Canadian Association of Law Teachers workshop, and the Australasian Law Academics Association conference. I’m looking forward to engaging with colleagues on the benefits of open-access publishing and to learning how others are innovating with their teaching resources.

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Thank you to Professor Beswick for seeing the potential in sharing his casebook on CanLII and collaborating on this post. We appreciate you making this important contribution to the website for the benefit of students and legal researchers!