To: Lewis N Klar <>
Matthew Harrington <>
Date: 25/02/2015 07:57:27 UTC
Subject: Re: Civilising the Common Law
Attachments: Edinburgh University charitable status

Briefly on this one: it is most likely a case of post hoc sed non propter hoc (West Wing fans will spot the allusion, I hope). In my recollections there is no reference in Grant v Tortstar to Quebec or civilian ideas. It is based squarely on Reynolds v Times Newspapers (England), which itself borrowed heavily from Lange v ABC (Australia). A couple of years ago I did some research on the Australian origins of responsible journalism and traced it back to parliamentary debates surrounding the Defamation (Amendment) Act 1909 in NSW. No hint of civilian thinking anywhere along the way, I seem to remember. 

What is very interesting in Reynolds is that it was originally conceived of as a form of qualified privilege. But QP emerged historically as one (objective) way of rebutting the presumption of (subjective) malice. So, what the defence seemed to say, at least at first, is that when you publish to the world at large the way you rebut the presumption of malice is, inter alia, by proving you tried reasonably hard to get it right, even though in the end you didn’t. What is fascinating is that the very same story happened in France a century earlier. Liability in (criminal) defamation was originally based on presumed animus iniuriandi, like the rest of the civilian tradition - which means the accused had to prove ‘good faith’ to get off the hook. But, by the turn of C20 it seems, courts had interpreted good faith as entailing ‘caution’ on the journalist’s part. I.e. again you rebut malice by proving diligence in fact-finding: the very same idea you will find almost 100 years later in Reynolds. Yet no visible borrowing whatsoever that I could identify there either. Post hoc…



Eric Descheemaeker (Dr)
Lecturer in European Private Law 

School of Law
University of Edinburgh
Old College
South Bridge
Edinburgh EH8 9YL (UK)

Tel: +44 (0)131 650 2054
Fax: +44 (0)131 650 2005

From: Lewis N Klar <>
Date: Tue, 24 Feb 2015 13:09:16 -0700
To: Matthew Harrington <>
Cc: "" <>
Subject: Re: Civilising the Common Law

You might consider the new  defamation common law defence of "responsible communication on a matter of public interest" as an example of this "trend". Traditionally being "responsible" or "reasonable" did not exonerate a defamer from liability for defamation at common law, unlike the civil law's "fault" requirement for liability in defamation.  Now being "responsible" is a defence in the context of mattes of public interest, even if the material is false and defamatory and not protected by one of the other defences. A small example, perhaps, but it might be useful to note it.

Lewis Klar

On Tue, Feb 24, 2015 at 12:59 PM, Harrington Matthew P. <> wrote:

Dear Colleagues


I am working on a short piece, in which I take the position that the Canada Supreme Court has begun to import concepts of the civil law into the private law of contract and tort, or at least expand common law rules in directions that might reflect civil law values.  At present, it’s very skeletal.  I see this tendency, for example, in Bhasin where, in my view, the court adopts a view of good faith that fits nicely in the civil law, but is something of a development in the common law.  (I know some of you disagree with this view.)


I`m wondering if others see a similar trend? Or is this mountain out of molehill?


Best regards.



Matthew P. Harrington


Faculté de droit

Université de Montréal

Montréal, Québec




Lewis N. Klar, Q.C.,
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