Kerry Sun (University of Oxford, Faculty of Law, Students ; University of Oxford, Merton College, Students) & Stéphane Sérafin (University of Ottawa – Common Law Section) have posted The Nominalism of the New Nominate Torts (Supreme Court Law Review, 2nd Series, 2024) on SSRN. Here is the abstract:
Within the past three years, trial courts in Canada have purported to recognise several new nominate torts: “internet harassment”, “harassment” simpliciter, “public disclosure of private facts”, and “family violence”. In this paper, we critique the judicial methodology underlying the creation of these new nominate torts, arguing that the reasoning proffered in these decisions is at variance with the rule of law. Specifically, we contend that what unites these instances of judicial law-making is a “nominalist” outlook on tort law that emphasises labels over substance, thereby undermining the rational coherence of the law and the concomitant requirement that like cases be treated alike. We advance a substantive critique of the new nominate torts, arguing that their development was unnecessary in light of a proper grounding in tort principles and existing causes of action. Ultimately, the adoption of this nominalist judicial methodology represents a troubling trend of judicial activism in private law.