Precedent, Principle and Pragmatism: Justice Wilson and the Expansion of Canadian Tort Law
Bibliographic record
Abstract
Tort law does not appear to have been a particular area of interest for Bertha Wilson during her years as a law student or in legal practice. But after she was appointed to the bench, some of her best-known judgments both at the Ontario Court of Appeal and at the Supreme Court of Canada were tort decisions (for example, Bhadauria v. Seneca College and Kamloops v. Neilsen), and they, along with a number of other decisions authored by her, remain staples of the tort law curriculum. Clearly Justice Wilson made an impact on Canadian tort law. This paper focuses squarely on her tort decisions, analyzing them as a body with a view to determining whether a coherent tort theory or philosophy underpins them. At first glance, a thread to connect this body of decisions is elusive; indeed, on the surface, a number of them appear to contradict one another. For example, based on her Bhadauria judgment in which she boldly created a new tort of discrimination, we might regard Justice Wilson as a tort expansionist. Yet elsewhere, we see her protecting other areas of law from incursion by tort (contract law in Dominion Chain v. Eastern Construction and family law in Frame v. Smith). And in other decisions, she positions herself somewhere between these poles, championing an incremental expansion of tort law where precedent allows and justice demands (for example, in Kamloops and Crocker v. Sundance). But digging deeper into Justice Wilson’s tort decisions, common themes emerge which link them to one another and ground them firmly in the broader context of her judicial work as a whole. In tort as in other areas of law, we find Justice Wilson striving to make decisions that are respectful of the constraints within which she operates as an appellate judge, true to her liberal principles, and responsive to the practical concerns of the parties appearing before her.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.004 | 0.010 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.002 | 0.002 |
| Science and technology studies | 0.034 | 0.041 |
| Scholarly communication | 0.010 | 0.005 |
| Open science | 0.002 | 0.004 |
| Research integrity | 0.005 | 0.007 |
| Insufficient payload (model declined to judge) | 0.004 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".