BOOK REVIEWS
CHRONIQUE BIBLIOGRAPHIQUE
Raymond A. Landry & Ernest Caparros, eds, Essays on the Civil Codes of
Quebec and St Lucia. Ottawa: University of Ottawa Press, 1984. Pp. xii,
400 [$29.001. Reviewed by P.P.C. Haanappel.*
Between 1879 and 1882, the then-British colony of St Lucia, an island
in the West Indies, received slightly modified versions of the English texts
of Quebec’s Civil Code and Code of Civil Procedure, of 1866 and 1867
respectively, as domestic legislation. What Quebec and St Lucia, which are
otherwise distant and very different territories, had in common, and still
have in common today, is a similar colonial background: originally, they
were French colonies governed by French law, and later they were British
colonies where French civil law survived, notwithstanding the change in
“colonial masters”.
The “exportation”, in the late 1870s and early 1880s, of the young
Quebec Codes to the island of St Lucia was in very large measure the result
of the efforts of two men: James Armstrong and William Des Voeux. Mr
Armstrong was a lawyer from Sorel, Quebec, who had become Chief Justice
of St Lucia. Mr Des Voeux, the island’s Administrator, had received his
legal training at Osgoode Hall in Toronto.1 Besides colonial links of a legal
nature, there were thus, at the time of St Lucia’s codification, also close
personal links between Quebec and St Lucia in the form of the Quebec
lawyer and the Ontario barrister. The latter, while at Osgoode Hall, had
passed a comprehensive examination of civil law.2
For a period of one hundred years after St Lucia’s codification, there
existed hardly any legal relations between the island and Quebec. During
that period, the civil law of both jurisdictions was subjected to considerable
common law influence, although much more so in St Lucia than in Quebec.
Pursuant to The Laws of Saint-Lucia (Reform and Revision) Ordinance of
1954, large chunks of English law, particularly in the fields of contracts,
“Associate Dean (Academic), Faculty of Law, McGill University.
1R.A. Landry, “Foreword” in R.A. Landry & E. Caparros, eds, Essays on the Civil Codes of
Quebec and St Lucia (Ottawa: University of Ottawa Press, 1984) ix at ix.
2N.J.O. Liverpool, “The History and Development of the Saint Lucia Civil Code” in Landry
& Caparros, ibid., 303 at 331 n. 83.
@McGill Law Journal 1985
Revue de droit de McGill
1985]
CHRONIQUE BIBLIOGRAPHIQUE
torts and trusts, were introduced into the St Lucia Civil Code, in part through
incorporation by reference. 3
After more than one hundred years, the civil law in both jurisdictions
is at a crossroads. Quebec, where the civil law has clearly survived, is re-
codifying. But St Lucian lawyers are examining how much civil law is left
in the island, especially after the Civil Code amendments of the 1950s,
whether it is worth retaining, and if so, whether some of the common law
influence should be undone. It is in this context that two seminars were
held, in 1983-84, on the civil law of Quebec and St Lucia. The book under
review contains a selection of papers presented at these seminars. The first
seminar was held at the Chateau Montebello (Quebec), the second at the
St Lucian Hotel in Castries (St Lucia). The seminars were organized under
the auspices of an ongoing exchange programme between the Faculty of
Law of the University of the West Indies (Barbados) and the Faculty of Law
of the University of Ottawa. All the seminar papers were presented in Eng-
lish. Part I of the book contains the papers presented at the second seminar,
while Part II reproduces four of the papers presented at the first seminar.
These latter four papers were previously published.4
Part I of the book is organized around six panel topics: the evolution
of the Civil Codes of Quebec and St Lucia; evidence in civil and commercial
law; the notarial system; the law of prescription; the law of successions; and
a comparison between statutory law and a civil code. With the exception
of the last panel, panel subjects were discussed by two lawyers, one from
Quebec and the other from St Lucia or elsewhere in the West Indies. The
last panel subject was discussed by five lawyers, all from Quebec. (It should
be noted that Quebec lawyers, in the sense used here, includes lawyers from
the Civil Law Section of the Faculty of Law of the University of Ottawa.)
As mentioned earlier, Part II of the book contains four papers. Three of
them deal with St Lucian law and one with Quebec law.
Most of the papers contain an overview of legal developments in either
Quebec or St Lucia. Some go beyond that and compare aspects of Quebec
and St Lucian law. This is the case especially in Dean Landry’s paper5 on
prescription and in Professor Belleau’s paper 6 on civil procedure. A few –
particularly interesting ones to which more attention will be devoted later
3A. Lewis, “Official Opening of Conference” in Landry & Caparros, supra, note 1, 9 at 13-
4. 4See (1983) 14 R.G.D. 373-446.
5R.A. Landry & F. Lefebvre-Landry, “Prescription as a Mode of Acquiring Property: Myth
and Reality” in Landry & Caparros, supra, note 1, 125.
6C. Belleau, “The Law of Civil Procedure in the Province of Quebec with Special Reference
to the Field of Execution of Judgments as Compared with the St Lucia Experience” in Landry
& Caparros, supra, note 1, 265.
McGILL LAW JOURNAL
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transcend even this bilateral comparative approach and examine the two
–
jurisdictions’ laws in the context of a general comparison of civil and com-
mon law, and civilian and common law methodology.
The remainder of this book review will be devoted to a discussion of
a number of the papers submitted by St Lucian or other West Indian authors.
This is not to downgrade the papers submitted by Quebec authors; rather,
for most readers the papers on St Lucian law open up as yet unexplored
juridical horizons. Two things, nevertheless, should be said about the papers
on the various aspects of Quebec law. First, since they are in English, they
are accessible to a wider public than is usually the case with publications
on Quebec civil law which, of course, are mostly in French. In fact, all of
the Quebec academic contributors to the Essays (Professors J.-L. Baudouin,
A. Bisson, G. Bri6re, E. Caparros, L. Ducharme, Y. Duplessis, R.A. Landry,
A. Larouche and L. Perret) publish only occasionally in English. Second,
the publications on Quebec civil law do not break new ground, as they were
written, understandably, in a context where lawyers from different juris-
dictions familiarize each other with their respective legal systems.
In his opening speech at the second seminar on the Civil Codes of
Quebec and St Lucia, 7 Sir Allen Lewis, Governor General of St Lucia, set
out a number of factors which have contributed to the decline of the civil
law on the island. In 1916, St Lucia adopted a Commercial Code based on
English codifying Acts. Previously, commercial matters had been governed
by Part Four of the St Lucia Civil Code, albeit already with considerable
common law influence. In 1940, the Royal Court of St Lucia was abolished
and replaced by a Supreme Court shared by the other British Windward
and Leeward Islands. On all these other islands, the common law was in
force – civil law did not survive in the originally Spanish colony of Trinidad
and the new Court’s judges were all English-trained. In 1946, The Legal
–
Practitioners Ordinance substituted the English Law Society’s examinations
for local St Lucian examinations, with the result that prospective lawyers
began to concentrate more on English common law than on St Lucian civil
law. In fact, from then until the establishment of the Faculty of Law of the
University of the West Indies at Barbados in the 1970s, most St Lucian
lawyers studied law in England. (A legal qualification received from a ci-
vilian jurisdiction does not suffice for the practice of law in St Lucia.8 ) The
large-scale introduction of English private law in the 1950s has already been
mentioned. 9 The developments of the 1940s and 1950s must be seen in the
7Lewis, supra, note 3.
8N.J.O. Liverpool, “The Law of Succession in St Lucia” in Landry & Caparros, supra, note
1, 191 at 214 n. 80.
9See supra, note 3 and accompanying text.
19851
BOOK REVIEWS
light of the eventually unsuccessful movement towards a Federation of the
West Indies.
Another factor mentioned in the Governor General’s speech was the
Castries Fire of 1948 which, amongst other things, destroyed the local law
library.’ 0 Legal works lost in the fire were not replaced. Yet another factor,
referred to by several authors in the book, is that over the generations St
Lucian lawyers gradually lost fluency in French, thereby hampering access
to original French legal sources. Although the Creole dialect of French has
not altogether vanished in St Lucia, the official language is English; the Codes
are in English only and legal proceedings in St Lucia have been in the English
language since 1842,1″ that is, even before codification. St Lucia thus shares
a linguistic access barrier to original French legal sources with other civilian
jurisdictions like Louisiana.
“The Viability of the Civilist Tradition in St Lucia”’12 is examined by
K.D. Anthony of the Faculty of Law of the University of the West Indies.
He starts by stating that, as in Quebec, the civilist tradition in St Lucia only
applies to the field of “property and civil rights”. 13 Following V.E Floissac, 14
he portrays St Lucia’s civil law as “a fascinating blend of Quebec, French,
English and indigenous law”.’ 5 In some detail, Anthony describes the leg-
islative reforms of the St Lucia Civil Code in the 1950s. He writes: “Im-
portation was achieved in some cases by codifying common law principles
into the Code, while in others, by introducing within the body of the Code
open reception provisions to allow for the entry of English law.”‘ 6 These
“open reception provisions” constitute the “incorporation by reference”
method referred to earlier. An excellent example is article 917A of the St
Lucia Civil Code, as amended. It provides:
917A. Subject to the provisions of this article [i.e., subject to stated excep-
tions] … the law of England … relating to contracts, quasi-contracts and torts
shall mutatis mutandis extend to this Colony [i.e., St Lucia], and the pro-
visions of articles … of this Code shall as far as practicable be construed
accordingly; and the … articles shall cease to be construed in accordance
with the law of Lower Canada or the “Coutume de Paris” … . Where a
conflict exists between the law of England and the express provisions of [the]
Code … the … Code … shall prevail. 17
‘0Lewis, supra, note 3 at 13.
“Liverpool, supra, note 2 at 325.
12K.D. Anthony, “The Viability of the Civilist Tradition in St Lucia: A Tentative Appraisal”
in Landry & Caparros, supra, note 1, 33.
13Ibid. at 37.
14V.F. Floissac, “The Interpretation of the Civil Code of Saint Lucia” in Landry & Caparros,
supra, note 1, 339 at 340.
‘5Anthony, supra, note 12 at 41.
I6Ibid, at 49.
17Civil Code of St Lucia, 1957, Laws of St Lucia, title 33, c. 242.
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[Vol. 31
Here is an indeed exceptional legislative method: existing Civil Code
provisions are maintained in force, while a body of imported law is super-
imposed upon them covering the same subjects, but from a different source
and with a different content. In case of conflict, the Code prevails. Obviously,
the question arises as to how much original civil law has been preserved in
such areas as contracts, torts and quasi-contracts. The question is difficult
to answer for a number of reasons, including the small corpus of decided
cases. But when one looks at the overall effects of the legislative reforms of
the 1950s, it appears that the only area of civil law which has escaped large-
scale common law influence is the law of property. 18 From a sociological
point of view, Anthony draws the conclusion that some civilian tradition
in St Lucia has survived, but only “by default”. 19 He mentions the lack of
loyalty of newly-trained lawyers to the civilian tradition 20 and the alienation
of the average St Lucian (St Lucia has a population of only 124,000) from
the legal system 2′ as factors which militate against the survival of the civil
law. Yet the civil law has to some extent survived, if for no other reason
than that successive generations of St Lucian lawyers have become accul-
turated to it, and because there has never been any serious, comprehensive
law reform in St Lucia. All the reforms have been piecemeal. 22
Anthony devotes considerable attention to the methodology employed
to decide cases in purely civilian, purely common law and mixed or hybrid
jurisdictions. In doing so, he uses comparative sources from an interesting
variety of jurisdictions. In his summary of sources of law used by judges
in mixed jurisdictions in order to arrive at decisions, he cites doctrine (learned
writings) ahead of jurisprudence (decided cases). 23 One wonders whether,
apart from the applicability or non-applicability of the doctrine of stare
decisis, this approach is correct. It seems that, in practice, previous juris-
prudence may be a more important source of inspiration to judges than
doctrine. Anthony does concede that, in St Lucia at least, jurisprudence is
a more important source than doctrine, especially given that jurisdiction’s
dearth of civilian doctrine. 24 Anthony’s major conclusion is that St Lucia
should either convert totally to the common law or “pursue hybridism as
an end in itself”.25 If the latter path is chosen, he asserts that the process
of assimilation with the common law must be controlled or reversed, the
18Anthony, supra, note 12 at 54.
19Ibid. at 59.
20Ibid. at 58.
21Ibid. at 59.
221bid.
23Ibid. at 66.
24Ibid. at 60-1 and 71.
25Ibid. at 72.
1985]
CHRONIQUE BIBLIOGRAPHIQUE
1950s amendments to the Civil Code re-examined, and closer relations with
other mixed jurisdictions created.
In the end, the choice of which road to follow will be a political one.26
Not mentioned by Anthony, but relevant in a political context is the im-
portance attached by St Lucia’s politicians to historical roots and to links
with neighbouring islands. The Federation of the West Indies did not prove
viable, but close links with neighbouring former British colonies, now in-
dependent, remain important. Equally important, however, may be the links
with nearby French jurisdictions. St Lucia’s closest and largest neighbour,
for instance, is civilian Martinique, a French dpartement d’outre-mer. An-
thony points out that, where hybridism has been pursued “as a permanent
feature of the legal process”, 27 one requirement is local doctrine. In this
context, it is surprising that he downgrades the role of the Faculty of Law
of the University of the West Indies.28 It seems that if local doctrine is to
be built up, this Faculty should play a central role, notwithstanding the fact
that it serves mainly common law jurisdictions.
Anthony’s paper is interesting and challenging. It is not always easy,
though, to follow the author’s train of thought. To some extent the paper
lacks clarity and a systematic approach.
In “The History and Development of the Saint Lucia Civil Code”, 29
Professor Liverpool (of the Faculty of Law at Cave Hill, Barbados) deals
with the events leading up to the St Lucian codification in 1879. During
the seventeenth and eighteenth centuries, St Lucia changed hands between
the British and the French several times. For most of that period, however,
it was French territory. It was only in 1814, by the Treaty of Paris, that it
ultimately reverted to British rule, under the express condition that French
civil law would remain in force. 30 Liverpool devotes considerable attention
to the English doctrine of reception of the law of the parent state in settled
or occupied territories, and in conquered and ceded territories, and the
application of this doctrine to St Lucia. 3′
While the Treaty of Paris confirmed the maintenance of civil law in St
Lucia, the civil law in question was French civil law as it stood in 1803,
the last time the island was conquered by the British.32 The law included
the Coutume de Paris, Royal French Ordinances, Edicts and Declarations,
26Ibid. at 42.
27Ibid.
281bid. at 58 and 61.
29Liverpool, supra, note 2.
30Ibid. at 308.
31Ibid. at 308-13.
32Ibid. at 308.
McGILL LAW JOURNAL
[Vol. 31
and laws relating to colonial matters, published in the Code de la Martinique,
but not the Code Napoleon. Colonial courts also had recourse to Roman
law and French authors, in particular Pothier.33
In great detail, Liverpool describes the period between 1814 and 1879,
when the St Lucia Civil Code came into force. This period was characterized
mainly by uncertainty about which laws were in force and the gradual an-
glicization of law and legal procedure. As mentioned earlier, English became
the language of St Lucia’s courts in 1842 and eventually the Civil Code,
adopted through the efforts of Armstrong and Des Voeux, was promulgated
in English only.
V.F Floissac, President of the St Lucia Bar, writes on “The Interpre-
tation of the Civil Code of Saint Lucia”. 34 He stresses the statutory character
of the Code,35 and sets out its French, Quebec, English and indigenous
sources.36 Among the interpretation rules discussed by Floissac is the “ju-
dicial precedent rule”, 37 frequently applied in St Lucia, especially prior to
the Civil Code amendments of the 1950s. Articles in the Code, derived from
the Quebec Code and expressing Quebec or French law, would be interpreted
by reference to Quebec decisions; articles derived from English law, by
reference to English decisions. The amendments of the 1950s have led to
their own interpretation questions.38 For instance, the importation of Eng-
lish law into the Civil Code has been interpreted so as to comprise both the
common law and statutory law. Furthermore, there is authority for the
proposition that the importation of English law into the Civil Code may
have “ambulatory effect”, in other words, comprise English law both prior
to and subsequent to the 1950s amendments. 39 In his conclusion, Floissac
hails hybridism. He states:
Our Civil Code acquired and retained the French law of real property. It would
be lamentable if the complicated English law of real property were ever sub-
stituted for the simple system we inherited from France through Quebec….
On the other hand, we have adopted the English commercial law. We cannot
regret having done so. 40
The last contribution to the Essays is that of Andrew Huxley.4’ Huxley
is a Lecturer at the University of the West Indies, and his piece is entitled
33Ibid. at 315.
34Floissac, supra, note 14.
351bid. at 340.
36Ibid. at 340-7.
37Ibid. at 354-5.
38Ibid. at 355-9.
39Ibid. at 358.
40Ibid. at 359.
41A. Huxley, “How Hybrid Is Saint Lucian Law?” in Landry & Caparros, supra, note 1, 371.
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“How Hybrid Is Saint Lucian Law?” He addresses a number of questions
on the effects of the Civil Code amendments of the 1950s, including whether
or not the reception of English law provisions is ambulatory. 42 He indicates
two important reasons why many of these questions are as yet unanswered:
inadequate law reporting and the paucity of decided cases in a small and
“only averagely litigious” jurisdiction like St Lucia.43 In concluding, he
writes:
My posing of some unanswered questions about the 1957 changes is by no
means to be taken as implied criticism … . [It] reflect[s] only the regrets of
one comparative lawyer that he could not have been born two hundred years
later in time to see the mature fruits of St Lucia’s experiment in hybridization. 44
Essays on the Civil Codes of Quebec and St Lucia (accompanied by a
Table of Cases, an Index of Treaties and Statutes and a General Index) makes
interesting reading for the civilian, the comparatist and the legal historian.
The civilian obtains an overview –
of legal developments in two originally civilian jurisdictions. The compar-
atist is acquainted with the special problem of “mixed” jurisdictions, be it
sources of law, language or otherwise. In this context it must be noted, of
course, that Quebec is infinitely closer to being a “pure” civilian jurisdiction
than is St Lucia. Finally, the legal historian is offered an example of how
civil codes and codes of civil procedure have spread throughout the civilian
world, in the case of St Lucia by a combination of voluntary adoption of
foreign codes 45 and close colonial and personal contacts.
in English, which is relatively rare –
42Ibid. at 373-6.
431bid. at 372.
4aIbid. at 376.
4
5it is interesting to note –
although it is not mentioned in the book under review –
that
these are not the only foreign legal codes adopted in St Lucia. In 1920, St Lucia enacted a code
of criminal law and procedure patterned after the Criminal Codes of Bermuda, St Vincent, the
Transvaal and, indeed, Canada. See Note, “The Criminal Code of St Lucia” (1921) 3 J. Comp.
Leg’n & Int’l L325-6.
William F Foster, Real Estate Agency Law. Toronto: Carswell, 1984. Pp.
xliii, 272 [$42.50]. Reviewed by G.H.L. Fridman.*
The author of this book, a Professor at McGill University’s Faculty of
Law, has performed a useful service for practitioners of law and real estate
agents alike. He has filled the need for a comprehensive, specialized work
dealing with the particular issues involved in the law relating to an impor-
tant, everyday commercial activity. Real estate agents, or brokers as they
are sometimes called, belong to the legal genus “agent”. Hence the general
common law of agency applies to them and regulates their relations both
with those who employ them (whether such employers be vendors or pur-
chasers of realty) and with strangers to that relationship. There are certain
special problems, however, associated with this species of agent. In Canada,
unlike in England (notwithstanding the passage at Westminster of the Estate
AgentsAct 19791), there is legislation in all the common law provinces which
determines what such agents can do, and how they are to exercise their
calling, as well as the kinds of people who can become real estate agents.
Such legislation complicates any account of real estate agency, and makes
its discussion more than a mere recital of the general law. This is one area
of the law of agency that compels any author to engage in a detailed con-
sideration of statutory language and the way it has been interpreted and
applied by the courts.
The task of presenting this amalgam of common law and statute is
carried out admirably by Professor Foster. He has given a clear account
which successfully analyses both the common law and the statutory re-
quirements. Each of the seven chapters is well-constructed, written in
straightforward language that is easy to understand and to digest. References
in the footnotes are strictly to the authorities, namely decisions, statutory
provisions and the occasional textbook or periodical article. This is not one
of those books that relegates the discussion of vital matters to lengthy,
complex and usually indigestible footnotes, covering more than one page
each. Important issues are dealt with in the text, which is precisely where
they should be considered. Moreover, the author has not hesitated to subject
leading decisions to more detailed analysis and discussion where it is nec-
essary to do so for the better comprehension of the points being explained,
and to critical comment where this is called for by the nature of the decision.
In some contexts, for example the effect of the expiration of the agency
*Of the Faculty of Law, University of Western Ontario.
‘(U.K.), 1979, c. 38.
@McGill Law Journal 1985
Revue de droit de McGill
19851
CHRONIQUE BIBLIOGRAPHIQUE
agreement,2 the statutory provisions dealing with the expiry date of an agree-
ment,3 or contracts by unregistered brokers and salesmen, 4 the author uses
hypothetical examples to illustrate the various possibilities and to clarify
the common law or statutory position. Where relevant, a comparative ap-
proach to the different provincial statutes is employed, exposing their dif-
fering treatments of the same issue or problem, such as the definition of
“real estate ‘ 5 and statutory prerequisites to an action for commission. 6
An exposition of this kind is informative and helpful. It provides more
than a mere simplistic account of the common law and the relevant statutes,
offering anyone giving legal advice, preparing an argument for litigation or
trying to understand what can or cannot be done by a real estate agent
sufficient background to enable the task at hand to be completed. In other
words, in addition to serving as a “handbook” for lawyers and real estate
agents, it is a full-fledged analytical account that goes in depth into some
of the more egregious, perhaps even unsolved, problems of the law.
The question of privity is one such problem. 7 The nature of exclusive
contracts of agency is another.8 To a degree these two matters are related,
at least in so far as they affect the notion of consideration. They are dealt
with at different points in the book, and apropos different issues, viz. the
creation of the contract of agency and the right of the real estate broker to
remuneration respectively, because they fit more tightly into those particular
contexts. But they both involve, albeit in distinct ways, the troublesome
question of consideration. In these two sections the learned author dem-
onstrates his ability to explain and expound on decisions and theories, and
to relate the general law of contract and its difficulties to the special problems
of real estate agency. In both instances there are statements that can be
made with the confidence and certainty that are derived from decisions by
courts of some authority, and there are more tentative statements that can
be supported, if at all, only by arguments drawn from analogous decisions
or areas of law. Professor Foster is careful not to be dogmatic. He makes
his suggestions and is prepared to substantiate them. It is legitimate, even
desirable, for a writer to make suggestions in this way as to what the law
should be, or can rationally be interpreted to mean; it would be going a
stretch too far, however, for an author to present his view of a given area
of the law as being the only correct one intellectually, if not indeed divinely
2W.F. Foster, Real Estate Agency Law (Toronto: Carswell, 1984) at 108-15.
3lbid. at 56-61.
41bid. at 69-75.
5lbid. at 14-6.
6Ibid. at 102-5.
7lbid. at 42-50.
8 bid. at 166-74.
McGILL LAW JOURNAL
[Vol. 31
inspired. Happily, the author is not so foolhardy as to attempt to impose
his view of the law on his readers in such a forceful manner.
The idea that unites the discussion of privity and exclusivity is the
claim that the contract of agency between a principal and a real estate broker
is a unilateral contract, defined by the author as “a promise by the former
to pay the latter a reward on the occurrence of a specified event but which
event the latter is under no obligation to try to bring about”. 9 This is mooted
as the solution to the problem of consideration in connection with the
requirement of privity between broker and principal (as illustrated in Lead-
ing Investments Ltd v. New Forest Investments Ltd’O). It is also put forward
as the explanation of exclusive agency contracts.” The suggestion is not
novel; it was discussed as early as 1975, in an article by Murdoch on which
Professor Foster relies heavily.’ 2 There is certainly great attraction in this
idea. It affords an explanation of some of the ambiguities inherent in the
principal-agent relationship, all of which are fully discussed by the author.
It is intellectually satisfying: the application of the increasingly useful con-
cept of “unilateral contracts”, in the context of agency, makes sense in terms
of technical legal analysis. Emotionally, though, if one may speak in such
terms, it leaves much to be desired. Does the average householder (or po-
tential purchaser of a house) consider that his broker is not bound to do
anything (albeit at the cost of earning no commission)? Or does he under-
stand by the signing of the appropriate documents that he, the principal,
has really engaged someone, in a contractual sense, to perform some act,
viz. the sale or purchase of a house? If the latter is the case, as I venture to
suggest it may well be, there is a great divergence between legal theory and
practical reality, which I am sure many commentators would deplore, even
if they are not members of the “realist” school ofjurisprudents.
What this illustrates is that it is difficult to approach the concept and
problems of real estate agency from a “philosophical” point of view. The
whole area is too rooted in the practical everyday necessities of life to lend
itself to schematic theoretical considerations. Take, as another example, the
question of causation. For a broker to earn his commission he must establish
that he was the “effective cause” of the happening of the event upon which
his commission is earned. 13 What is “effective cause”? This cannot be an-
swered in the abstract. It only emerges after a detailed examination of the
many decisions in which the issue has been raised and resolved quoad hoc.
One may attempt to categorize the different potential situations, as the
9lbid. at 49.
10(1981), 34 O.R. (2d) 175, 126 D.L.R. (3d) 75 (C.A.).
IFoster, supra, note 2 at 170-4.
‘2J.R. Murdoch, “The Nature of Estate Agency” (1975) 91 L.Q. Rev. 357.
‘3Foster, supra, note 2 at 149-58.
1985]
BOOK REVIEWS
learned author does. In the end, however, it all comes down to a listing, in
some kind of order or systematic account, of the various possibilities. No
doubt this is as it should be. Courts should not be bound by any formal
rules as to causation, whether culled from science, philosophy or history.
Judges are dealing with practical problems and questions of policy; this is
especially so in the area of real estate agency where legislatures have inter-
vened to protect vendors and purchasers who employ such agents. They
must therefore be free to do “justice” having regard to the circumstances
and relative situations of the parties.
An interesting area of the law, which is explored by the author in Chap-
ter 6, relates to the duties owed by a real estate broker to third parties, that
is, those other than his principal. The statutes contain important provi-
sions.14 Since no contract regulates the relations between broker and third
party, it is to the law of tort that an injured party must look for a remedy.
Fraud has long been a basis for liability. Only since 1963, however, when
the House of Lords issued its ruling in Hedley Byrne,15 has it been possible
for a third party to seek compensation where he cannot prove fraud, but
could establish negligence on the part of the broker. The proliferation of
reported decisions since 196316 testifies to the growth in importance of this
type of liability, and the extent to which real estate brokers may ignore the
interests of those to whom they are not contractually bound. Curiously, the
author does not consider the potential liability of the principal for fraud or
negligence on the part of his agent, although he does mention the conse-
quences of the principal’s having to pay damages to such a third party in
terms of the broker’s liability to the principal. Yet in the law of agency, the
potential vicarious liability of the principal is an important aspect of the
whole relationship.
Enough has been said to indicate that this work is an important and
welcome addition to the library of any real estate lawyer or real estate agent.
It is informative and clear. The student of the law of agency would also do
well to acquire a copy, since it will enlighten him on the problems of applying
the general law of agency in the particular context of real estate transactions,
for the rules of agency as they have developed over the centuries do not
always fit such transactions conveniently and easily.
14These provisions are outlined ibid. at 248-9.
15Hedley Byrne & Co. v. Heller & Partners Ltd (1963), [1964] A.C. 465, [1963] 2 All E.R.
575 (H.L.).
16These decisions are considered in Foster, supra, note 2 at 243-6.
Robert F. Reid & Richard E. Holland, Advocacy: Views from the Bench.
Aurora, Ontario: Canada Law Book, 1984. Pp. xii, 164 [$25.00]. Reviewed
by Barry Landy.*
It has often been observed that basic skills of advocacy are not well
taught by law schools. There are several reasons why this is so, not the least
of which would appear to be that the subject matter is one which requires
first-hand training, experience and a certain cunning which only develops
with time and “hands-on” practice.
Here then is a new book on the subject. Advocacy: Views from the Bench
is written by two Justices of the Supreme Court of Ontario, Robert F Reid
and Richard E. Holland, and is concerned with the practice as well as the
customs and traditions which prevail in that Court. Aimed primarily at the
young attorney just beginning his career in the trial bar, this volume contains
certain universal truths for trial lawyers presented in a humorous and en-
tertaining manner.
Advocacy comprises two Parts. Part I, prepared by Mr Justice Reid, is
entitled “Do’s and Don’ts for Advocates”. Part II, prepared by Mr Justice
Holland, is entitled “The Advocate at Trial”.
One difficulty with any book written by two people is that the reader
is apt to conclude that he has read two different works. This the authors
concede in their foreword, acknowledging that there is an “unsettling dif-
ference in both the style and the tone of the two parts”.’ Unfortunately,
they are not able to smooth over this difference completely, giving the book
a slightly disjointed tone.
Part I is generally witty and anecdotal. A case in point is the discussion
of personal appearance, where one reads of anxious clients being represented
by a sloppily-dressed lawyer who “looks as if, while shaving, he suddenly
remembered he was in court that morning and already late”. 2 Other attor-
neys, somewhat more concerned about their attire,
do not simply fling their gowns over their arm; they sling them over their
shoulder in a zippered plastic bag embellished with the name of the clothing
shop where they bought their last suit of clothes. Some favour air-line bags.
The least fastidious, or the most hurried, it is hard to tell, actually carry their
gown in a green plastic garbage bag. I say “actually” to mean I have witnessed
‘Of the Bar of Quebec. Me Landy practises in the area of commercial litigation.
IR.E Reid & R.E. Holland, Advocacy: Views from the Bench (Aurora, Ont.: Canada Law
21bid. at 53.
Book, 1984) at x.
McGill Law Journal 1985
Revue de droit de McGill
1985]
CHRONIQUE BIBLIOGRAPHIQUE
that and know it to be true. I would not otherwise have believed it. Does a
lawyer who is capable of carrying his gown to court in a green garbage bag
have any idea what that says about him? Does he think that will inspire con-
fidence in his professional ability in anyone but his mother?3
At another point, we are treated to an engaging discussion on how the
advocate’s personal mannerisms can seriously interfere with his effective-
ness in court:
For a judge to make a comment upon even the most irritating mannerisms is
probably rare. For the most part judges just sit patiently trying to ignore them,
and to follow the evidence or the argument. Some are not easy to ignore. One
counsel, exceptionally talented in other ways, had a curious habit of reacting
to questions from the Bench by holding up his hand like an imitation pistol,
with forefinger pointed and thumb cocked, aiming it at the judge and saying,
“Chuff, Chuff,” as if firing. Another able counsel is known to some as “the
finger” from his habit of fixing judges with a glittering eye and pointing men-
acingly at them, as one might at a pet dog to emphasize one’s demand to be
obeyed.
I think few people could continue to concentrate objectively on the evi-
dence or the argument while this kind of thing is going on, and, as I have said
before, it is useful to keep in mind that judges are people. 4
Law schools do not teach personal appearance or offer courses concerning
courtroom demeanour, and while some might quibble that such topics are
best left to a primer on elementary etiquette, Mr Justice Reid has provided
some valuable insights for those who seek to practise before law courts and
administrative boards.
Part II of Advocacy, written by Mr Justice Holland, is more serious
than Part I in both tone and content. Mr Justice Holland discusses the role
of the advocate in a civil trial in six brief chapters entitled “Paper”, “Open-
ing”, “Examination-in-Chief’, “Cross-Examination”, “Re-Examination” and
“Closing”. With the exception of the chapter covering the opening address,
which is not relevant from a Quebec civil law perspective, many valuable
points are presented. For example, in the chapter entitled “Paper”, he stresses
the importance of knowing how to organize one’s exhibits effectively, pre-
paring a dated and indexed chronology of facts, and keeping a trial book
containing both the written pleadings and a book or books of authorities.
The chapter on cross-examination is particularly well-written. Mr Jus-
tice Holland sets out certain rules which he feels are essential to any good
cross-examination:
3Ibid. at 53-4.
4Ibid. at 72-3.
McGILL LAW JOURNAL
[Vol. 31
PRIMARY RULES
1. Prepare your cross-examination carefully.
2. Always lead. Ask “closed” questions; never ask an “open” question.
3. Make your point and switch to another or stop.
SECONDARY RULES
1. Try to start well and end well.
2. Use simple language with short questions.
3. Do not ask a question unless you have a very good idea of the answer.
4. Do not get into arguments with the witness: keep your temper.
5. Be aware of the value of the “surprise” question.
6. Do not “pass a witness”. 5
Each rule is then succinctly discussed and explained in a simple but illus-
trative manner.
Other writers have made essentially the same points on cross-exami-
nation as Mr Justice Holland. The celebrated American trial lawyer F Lee
Bailey, for instance, in his “how-to-do-it” manual entitled To Be a Trial
Lawyer,6 has offered similar lessons. Preparation is essential; cross-exami-
nation should be avoided unless it is absolutely necessary; the lawyer should
always lead and never argue with the witness; he should make his point and
switch to another topic: these are the key points that Advocacy attempts to
drive home. While Mr Justice Holland has not purported to write the de-
finitive treatise on the subject of cross-examination, he has provided a help-
ful introduction to the subject.
In conclusion, this book is entertaining, informative and imparts many
useful lessons in a painless way regarding the role of the trial lawyer. It is
recommended to all who hope to embark upon this most difficult –
or
should I say most trying –
profession.
51bid. at 136.
6EL. Bailey, To Be a Trial Lawyer (New York. John Wiley & Sons, 1985).
