The Supreme Court of Canada, in its 2001 decision in Cooper v Hobart, refined the test in Canadian common law for establishing a duty of care in the tort of negligence. Although aware of the complexities and ongoing challenges of the “duty of care” concept, the Supreme Court openly labelled these concerns as “academic.” This article confirms these concerns as “academic,” but insists that this label underlines their centrality not only to an understanding of the tort of negligence but to the nature and form of common law reasoning. By pointing to errors in the Supreme Court of Canada’s judgment — errors of using the wrong word, naming the wrong judge, confusing the structure of the duty of care inquiry, and omitting an important precedent case — the authors identify failures in the four principal activities of the common law: placing, naming, identifying, and remembering. They suggest that the image, sounds, and fluctuation of “conversation” capture the method of common law — its linking of past to future through imperfect yet evocative analogical reasoning — and affirm the importance of paying attention to the meaning of words, the names of judges, the structure of questions, and the importance of history.
Crawley, Karen and Van Praagh, Shauna, ‘Academic Concerns’ – Caring About Conversation in Canadian Common Law (September 1, 2011). Dalhousie Law Journal Vol. 34, No 2, pp 405-442, Fall 2011.