The Doctrine of Public Policy in Canadian Contract Law

The Doctrine of Public Policy in Canadian Contract Law 139
proper judicial function in relation to public policy is "not to create but to
expound the law."203 However, legal positivism, at least when it is advanced as
an epistemology of the judicial function in relation to public policy, appears
hopelessly facile.2°4 The problem lies in the fact that the judiciary has seen fit
to create new heads of public policy and to abandon those which have become
socially irrelevant. Further, even admitting that positivism may be able to
"explain" the creation of a new class of public policy (such as discrimination)
via the simple extension of a pre-existing one,205 the theory is still incapable of
telling us why certain heads, as, for example, the rule against cohabitation
contracts, have been abandoned. Inasmuch as the positivist theory of public
policy is unable to account for the doctrine's continued evolution and responsiveness,
it is irrelevant whether it is capable of responding to the two abovementioned
criticisms.206 While an acceptance of positivism would lessen some
of the difficulties currently associated with the doctrine, the result would be a
concept of public policy that has no practical ability to humanize the common
law. Although the positivist may succeed in defending the doctrine against its
critics, he or she does so ultimately by destroying it.
The second theory of public policy may be referred to as the "consensus"
mode1.207 This view arises in response to positivism, and is often linked to the
observation that certain heads of public policy have changed in connection with
public policy that they are unlawful, but it is because these things have either been
enacted or assumed to be by the common law unlawful, and not because a judge or court
have a right to declare that such and such things are in his or their view contrary to public
policy. . . [I]n the application of the principles here insisted on. . a judge. . . must find
the facts, and he must decide whether the facts so found do or do not come within the
principles which I have endeavoured to describe — that is, a principle of public policy,
recognised by the law, which the suggested contract is infringing, or is supposed to
infringe."
203 Lloyd, supra note 11 at 145.
204 As Lloyd supra note 11 at 113-14 and 116 notes "[i]n so far as the narrow view insists
on a number of heads of policy it is difficult to see how such an approach is really tenable
at all... [A]ny particular decision on public policy is no more than a decision of fact as
to what the courts at the period regarded as contrary to or in accordance with current
policy, and affords merely a guide to future judges who may be free to decide that with
the passing of the then existing conditions the applicable policy has also undergone a
change."
205 See, e.g., Chitty, supra note 6, at 940.
206 As Winfield, supra note 1 at 95 notes "[the] variability of public policy is a stone in the
edifice of the doctrine, and not a missile to be flung at it. Public policy would be almost
useless without it."
207 This term is derived from Bell, supra note 198, and applied by Buckley, supra note 8 at
para. 6.25. As described by Lloyd, supra note 11 at 125, ". .the judge is expected to
preserve here as elsewhere a high degree of impartiality and to seek, as best he can, to
apply, not his individual moral• conception, but that which his training, background and
knowledge lead him to believe to be what accords with customary morality and the
general conscience of the community."