Affiliation:
1. University of Western Ontario, London, Ontario, Canada.
Abstract
This article employs the case study method to investigate the social history of Canadian tort law and litigation after 1945. Its focus is Menow v Jordan House, the stem precedent of the Canadian common law of tavern-keeper liability for intoxicated patrons. The article examines the historical genesis, pleading, and adjudication of this litigation, probing why – in Canada in the late 1960s and early 1970s – the novel tort claim of an ejected intoxicant against a vendor of alcohol not only was imagined, discussed, and commenced but also was won by the plaintiff at three levels of court. The authors argue that the Jordan House lawsuit exemplified a pivotal moment of socio-legal discontinuity in Canada, portending a quarter century of change in three major facets of its tort law system: in the perceptions of lay persons with respect to their private legal rights and obligations; in the personal convictions, social geography, and litigation strategies of Canadian lawyers; and in the formulation of tort doctrine by Canada’s trial and appellate judges. The article is a sub-study of a larger project on the reinvention of tort law and litigation in Canada in the half-century after World War II.
Publisher
University of Toronto Press Inc. (UTPress)
Subject
Law,Sociology and Political Science
Reference275 articles.
1. This is examined in greater depth below. Increased alcohol consumption in Canada in the period correlated strongly with serious and fatal crashes. See generally Ole-Jorgen Skog, 'Alcohol Consumption and Fatal Accidents in Canada, 1950-98' (2003) 98:7 Addiction 883
2. Mats Ramstedt, 'Alcohol Consumption and Alcohol-Related Mortality in Canada, 1950-2000' (2004) 95:2 Can J Public Health 121.
3. This study focuses on the operation of the tort system in the common law provinces of Canada. It will be for other scholars to examine similar questions in the unique context of Quebec.
4. In this view, ‘disputes are not things: they are social constructs’ with social histories. See William Felstiner, Richard Abel & Austin Sarat, ‘The Emergence and Transformation of Disputes: Naming, Blaming and Claiming’ (1981) 15:3–4 Law & Soc’y Rev 631 at 631.
5. For a sample of Canadian historical scholarship on private law in the late nineteenth and twentieth centuries, see WE Brett Code, 'The Salt Men of Goderich in Ontario's Court of Chancery: Ontario Salt Co. v. Merchants Salt Co. and the Judicial Enforcement of Combinations' (1993) 38 McGill LJ 517