Canada: Hail To The Chief: McLachlin C.J.C. Becomes Canada’s Longest-Serving Chief Justice

Next month marks the bicentennial of the birth of Sir William Johnstone Ritchie, one of the first judges appointed to the Supreme Court of Canada and Chief Justice from 1879 to 1892. Why are we thinking about him this week? Until today, he was the longest serving Chief Justice of Canada. That title now belongs to Chief Justice Beverley McLachlin, who has held the position since January 7, 2000. Having served on the Court for nearly a quarter century – most of that time as Chief Justice – her impressive legacy to date includes the development of the law in a wide and varied range of areas. She has also used her position to forge a remarkable degree of consensus on the Court and to publicly highlight important issues facing the administration of justice.

To celebrate this historic milestone, Canadian Appeals Monitor has taken a look at McLachlin C.J.C.'s jurisprudential legacy to date – both before and after her appointment as Chief Justice – and identified 10 key cases in which she has had a direct and lasting role in shaping the law as it applies to Canadian businesses and professions. Her judgments in these areas rarely receive the attention of the media, who tend to focus instead upon her important decisions regarding constitutional and criminal issues. However, as demonstrated by the cases below, McLachlin C.J.C. has also had a profound influence upon the development of the private law.

Norsk and Bow Valley

The recovery of pure economic loss in negligence is one of the most controversial and difficult subjects in the law of torts.  As Cardozo J. famously remarked in Ultramares Corp. v. Touche, 255 N.Y. 170 (1931), such cases, more than any other, create the potential for "liability in an indeterminate amount for an indeterminate time to an indeterminate class".  In Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021, McLachlin J. (as she then was) laid the groundwork for a principled approach to this area, by rejecting an automatic exclusionary rule for pure economic loss and holding instead that the controlling concept is "proximity", broadly defined.  While the position taken by McLachlin J. in Norsk differed from that of La Forest J. (who would have imposed a presumptive exclusionary rule for contractual relational economic loss), she later unified the two approaches in Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210.  The resulting rule – that recovery for contractual relational economic loss is presumptively excluded in the absence of a categorical exception, subject to the recognition of a new exception based on policy reasons – has been applied by the Supreme Court ever since: see, e.g., Martel Building Ltd. v. Canada, [2000] 2 S.C.R. 860 and Design Services Ltd. v. Canada, [2008] 1 S.C.R. 737.

Cooper and Edwards

As Norsk and Bow Valley suggest, one of the areas in which the Chief Justice's contribution to the development of private law has been most notable is her work on the duty of care and how it should be applied to novel negligence claims.  In November 2001, the Court released two unanimous companion judgments – Cooper v. Hobart, [2001] 3 S.C.R. 537 and Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562 – in which the Chief Justice and Major J. put "a gloss" on Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), "revisited" the Anns test and provided guidance on the proper role of policy considerations in assessing tort liability and "proximity."  The Chief Justice elaborated upon these ideas in later judgments – notably Childs v. Desormeaux, [2006] 1 S.C.R. 643, Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129 and R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45 – and has consistently been the driving force behind the Court's clarification of these important concepts.

Resurfice and Clements

Two appropriate companions to the Chief Justice's judgments in Cooper and Edwards are decisions in which she clarified the causation standard to be applied in negligence claims.  Her unanimous judgment in Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333 confirmed that the but-for test is a "fundamental rule" that "has never been displaced."  This was in the face of considerable confusion caused by arguments that the "material contribution" test represented a new, more relaxed approach to causation.  The Chief Justice returned to this issue in Clements v. Clements, [2012] 2 S.C.R. 181, where her majority judgment clarified that a "material contribution" approach to causation is appropriate in rare cases involving multiple tortfeasors if the negligence of the defendants is the but-for cause of the plaintiff's loss, but the plaintiff cannot show that one particular defendant was the likely cause.

BG Checo

In addition to torts, the Chief Justice has made several significant contributions to the law of contracts.  Perhaps her most notable judgment in this regard is BG Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12, where she delivered joint majority reasons with La Forest J. that greatly simplified the rules for when a plaintiff can sue in both tort and contract for conduct that gives rise to concurrent liability in each.  The BG Checo approach – that the right to bring concurrent claims exists in any case where the contract does not clearly indicate otherwise – stands as an important affirmation of the primacy of private ordering.  McLachlin J.'s judgment in BG Checo is also noteworthy for its pragmatic approach to reconciling inconsistencies in different parts of an agreement, and for clarifying the different measures of damages in contract and tort.  It joins a long line of other contract cases authored or co-authored by the Chief Justice,in fields as diverse as insurance, partnership, joint ventures and employment law: see, e.g., Nichols v. American Home Assurance Co., [1990] 1 S.C.R. 801, Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 S.C.R. 252, Continental Bank Leasing Corp. v. Canada, [1998] 2 S.C.R. 298, Fidler v. Sun Life Assurance Co. Of Canada, [2006] 2 S.C.R. 3, Jedfro Investments (U.S.A.) Ltd v. Jacyk, [2007] 3 S.C.R. 679, and RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc., [2008] 3 S.C.R. 79.

Dutton, Hollick and Rumley

Perhaps no decisions of the Chief Justice have had a greater impact upon businesses than the seminal class actions trilogy of Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 SCR 534, Hollick v. Toronto (City), [2001] 3 SCR 158 and Rumley v. British Columbia, [2001] 3 SCR 184.  These cases have come to define the test for certifying class actions in Canadian provinces outside Quebec.  Virtually all of the foundational concepts in class certification – the "plain and obvious" standard for whether the pleading discloses a cause of action, the requirement for a "colourable claim" and a "rational connection" between the proposed class and the common issues, the two-part test for preferability, the focus upon access to justice, judicial economy and behaviour modification, the notion of "systemic" liability, and above all, "the curious requirement of 'some basis in fact'" (as Justice Cullity has called it) – can be traced to these unanimous decisions by McLachlin C.J.C. It is difficult to identify another area of the law in which a single Canadian judge has had so much influence.

Honourable Mentions

Not surprisingly, our efforts to compile a "top ten" list of the Chief Justice's decisions led to much discussion and debate given the wide array of contenders.  Some particularly notable judgments that were not included in our list are:

  • Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, which unanimously revisted the "bright line" conflicts rule for lawyers and their clients;
  • Grant v. Torstar Corp., [2009] 3 S.C.R. 640, which modified the traditional law of defamation to recognize the defence of "responsible communication";
  • Canada Trustco. Mortgage Company v. Canada, [2005] 2 S.C.R. 601, written with Major J., which offered a unanimous (and then-unprecedented) interpretation of the general anti-avoidance rule (GAAR) under the Income Tax Act;
  • Wallace v. United Grain Growers, [1997] 3 S.C.R. 701, an influential dissenting judgment which dealt with the relevant factors in the calculation of wrongful dismissal damages and the existence of an implied duty of good faith in employment termination; and
  • Peel (Regional Municipality) v. Canada, [1992] 3 S.C.R. 762, which reconciled the "principled" and "categorical" approaches to restitution, and defined the nature of "benefit" in the test for unjust enrichment.

Having often publicly reiterated her desire to serve until reaching the age of mandatory retirement, the story of the Chief Justice's ultimate legacy on the Court remains to be told.  It is clear, however, that the media's understandable focus on her contributions to the development of public law in Canada tells only half of the story, and overlooks an important and lasting part of her contribution to Canada's commercial and professional life.

To view original article, please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions