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“rule” so created was applied far more broadly than its original (mis)conception.
All of which circles back to the original theme: in commercial matters
the courts often use stare decisis and precedent to avoid principled examinations
of important issues even though the application of the precedent leads
to a result that is absurd.
1. Carter v Canada (Attorney General), 2015 SCC 5 at
para 44 Carter.
2. Reference re Same-Sex Marriage, 2004 SCC 79.
3. Carter, supra note 1.
4. R v Morgentaler, 1988 1 SCR 30.
5. Schachter v Canada, 1992 2 SCR 679.
6. For a useful summary of the important cases illustrating
the scope of the impact of the Charter, see Government
of Canada, Department of Justice,
“Examples of Charter-Related Cases”, online:
7. For an interesting argument regarding how the common
law process of argument by analogy developed
in the Court of Common Pleas during the late 13th
and early 14th centuries under Chief Justice Bereford,
see Thomas Lund, The Creation of the Common
Law: The Medieval Year Books Deciphered (Clark,
NJ: Talbot, 2015).
8. 1882 (UK), 45 & 46 Vict, c 61.
9. Chancery Amendment Act, 1858 (UK), 21 & 22 Vict,
10. 1873 (UK), 36 & 37 Vict, c 66.
11. For a comprehensive discussion of stare decisis, see
William F Ehrcke, “Stare Decisis” (1995) 53 Advocate
847. See also the Honourable Martin R Taylor,
QC, “Doing the Right Thing” in Jack Giles, QC, ed,
The Splendour of the Law: Allan McEachern – A Tribute
to a Life in the Law (Toronto: Dundurn Press,
12. 1932 AC 562 (HL).
13. Ironically Stevenson was a small local producer of
soft drinks. The ginger beer (although it actually may
have been another type of soft drink) was served in
the Wellmeadow Café, a short walk from where it
was manufactured. Note that no trial was ever held
and there was no finding that there was a decomposing
snail or any other dead creature in the bottle.
Thus the interesting question of how the shell of a
snail might have passed unaided into the bottle
remains unanswered. The case was apparently settled
after Mr. Stevenson, the manufacturer, died.
14. Of the Court of Session, which is Scotland’s court of
15. 1954 4 DLR 590 (BCSC). CanLII indicates that it has
been referred to 623 times at the time this article was
16. Ibid at 592.
17. Note the use of the “Oxford comma” for clarity. See
Richard Olson, “The Comma: Hook, Line and
Thinker” (2017) 75 Advocate 839.
18. See John Carten Personal Law Corp v British Columbia
(Attorney General) (1997), 40 BCLR (3d) 181
19. 1989 1 WWR 1 (BCCA).
20. Ibid at 3, citing Bell v Cessna Aircraft Company
(1983), 46 BCLR 145 at 148 (CA).
21. See the comment on this point by Holly Brinton &
Peter Senkpiel, Civil Appeal Handbook (Vancouver:
Continuing Legal Education Society of British Columbia,
2002) (loose-leaf) at para 1.19, n 69a
(“Arishenkoff v. British Columbia (2004), 30 B.C.L.R.
(4th) 1, 2004 BCCA 299, per Newbury J.A. at
para. 93. The Court subsequently sat as a division of
five and concluded its earlier decision was wrongly
decided: Arishenkoff v. British Columbia, 2005
BCCA 481 at paras. 18–22 and 45, leave to appeal
refused 2005 S.C.C.A. No. 556 (QL)”). However,
there was no discussion of the Court of Appeal’s
jurisdiction to overrule itself; it just did so.
22. Carter, supra note 1 at para 44.
23. Although occasionally they do. See e.g. Rosas v
Toca, 2018 BCCA 191.
24. An easement may be positive or negative, either prohibiting
the servient tenement from doing something
or permitting the dominant tenement to do something
on the servient tenement.
25. It is enforceable between the original parties as a
26. The “dominant tenement” is the property enjoying
the benefit of the easement or restrictive covenant.
The “servient tenement” is the property subject to the
easement or restrictive covenant.
27. There are some exceptions such as fences and utility
conduits and pipes where exclusive possession is
28. (1996), 17 BCLR (3d) 366, 1996 CanLII 3321
(BCCA) Nordin cited to CanLII.
29. Ibid at para 34.
30. (1885), 29 Ch D 750 Austerberry.
31. Heritage Capital Corp v Equitable Trust Co, 2016
SCC 19 at para 25. The question of whether the rule
should continue does not seem to have been in issue,
as the case involved whether a provision in a statute
32. At this time owners of land abutting public roads
could be responsible for the costs of construction and
maintenance along their frontage.
33. Austerberry, supra note 30 at 750.
34. (2000), 50 OR (3d) 670 (Sup Ct), aff’d (2002), 58
OR (3d) 481 (CA).
35. Ibid at para 15.