As to (i), it is true, as Lionel Smith points out, that Wilson J in Air Canada v BC was cautious as to whether the question properly arose, but she did indicate that she was "in complete agreement with what [La Forest J] ha[d] to say on this subject, and were it necessary for [her] to do so in order to dispose of this case, I would support the minority view expressed by Dickson J in" Nepean v Ontario Hydro. Headcounting, though not ratio, this obiter surely counts more in favour than against, perhaps then 3½ votes in favour of abrogation, and certainly generates the culture against the rule of which Duncan Sheehan wrote. In any event, as David Mullan - and then Lionel Smith - pointed out, Wilson J joined a clear majority on the point in Canadian Pacific v BC, and the combination of the two cases has, at least from the outside looking in, removed the mistake of law bar from Canadian law.

As to (ii) and (iii): first, I think that the headcounting is properly applicable in respect of both of them, and second, it is not entirely clear to me from La Forest J's treatment of the issues whether they are in fact the same thing. I do not think that they are, nor do I think that La Forest J thought so. In Murphy v AG [1982] IR 241 (SC), the Irish Supreme Court allowed a taxpayer to have restitution of taxes paid pursuant to an unconstitutional statute; the unjust factor was duress (duress colore offici), and it was subject to the defence of change of position (which operated in respect of potential plaintiffs other than those in the instant case). A significant policy factor justifying the defence of change of position on the facts was the fiscal chaos argument which attracted La Forest J in Air Canada. But Henchy J for the majority simply bolstered his application of the change of position defence by reference to the policy. He neither equated them, nor allowed the policy to generate a special defence. With La Forest J, I think that the policy bolstered the defence of passing on, and *also* generated a special defence.

If (ii) [the defence of passing on] and (iii) [the special defence generated by the fiscal chaos policy] are properly separable and separated, then, it becomes possible to put Re Eurig in proper context. As I read the extracts provided by Mitchell McInnes, Major J seems to reject the special defence generated by the fiscal chaos policy. This in turn might remove one prop in favour of the passing on defence, but if the special defence and the passing on defence are separate, the rejection of the policy does not necessarily entail the rejection of the passing on defence [in much the same way as the defence of change of position is independently secure, even if the particular policies underlying it in the specific context of Murphy v AG would also fall with Re Eurig]. There might be other problems with the defence which entail its rejection but that is another story.

So, my point is this: even if Eurig continues the Peel softening (of which Steven Elliot reminded us) of the policy defence, and ultimately removes the policy from the law, other defences such as change of position and passing on might have been justified in a specific case on the basis of the policy, but the abrogation of the policy does not of necessity carry with it the abrogation of the defences such as change of position or passing on.

Is there anything in any of this ?

Best

Eoin

EOIN O'DELL
Barrister, Lecturer in Law

Trinity College
Dublin 2
Ireland

ph (+ 353 - 1) 608 1178
fax (+ 353 - 1) 677 0449

Live Long and Prosper !!
(All opinions are personal; no legal responsibility whatsoever is accepted.)