BOOK REVIEWS
LIVRES NOUVEAUX
Canadian Tort Law, by Allen M. Linden, Toronto: Buttenvorths, 1977.
Pp.ix, 623.
The avowed aim of the author is to record the achievements of
the Canadian courts in the law of torts. He rightly informs us that
much Canadian development has taken place in this area and pro-
claims his mission to tell “a story that needs to be told” (p.vii). At
the same time he -delivers what can only be described as a back-
handed compliment to the Canadian judiciary, past and present,
when he observes that, as a race, they are growing “more literate”
(p.vii).
The author’s aim is not an easy one to accomplish. He has to
record Canadian achievements and yet he must not ignore the fact
that Canadian jurisprudence is deeply rooted still in the common
law tradition, for fear of presenting a distorted picture of the law.
“In recent years,” he tells us, “the common law has lost much of its
universality” (p.vii). If by that he means that modem Canadian
courts are less likely to follow English decisions blindly, he is
happily and undoubtedly correct. But the statement does not hold
true if one addresses oneself to the frontier areas of negligence
liability, negligent misstatement, economic loss, government liability,
unborn children and medical liability, to name a few examples,
where kEnglish, American, Canadian, Australian and New Zealand
decisions have a ready currency in other jurisdictions. A failure to
take account of actual and potential cross-fertilisation does less
than justice to the organic complexity of the law of torts in the
twentieth century.
The author’s field of inquiry is “Canadian Tort Law.” At least,
that is what the spine of the book tells us, with corroboration
coming from the title page. Nor is there anything in the author’s
preface to alter the impression thus created. Sterne’s novel Tris-
tram Shandy tells us very little about its eponymous hero and Pro-
fessor Linden’s inaptly named book leaves almost as much unsaid
about the subjects of his study, namely Canadian torts. This book
has nothing to say about the following subjects: privacy (apart
from a footnote to the effect that it is beyond the scope of his
inquiry), occupiers’ liability, vicarious liability, defamation, liability
for animals, nuisance, trespass to land, conversion, detinue, trespass
1978]
BOOK REVIEWS – LIVRES NOUVEAUX
to chattels, conspiracy, intimidation, interference with contractual
relations, injurious falsehood, damages and fatal accidents claims,
passing off, interference with domestic relations, deceit and mali-
cious prosecution. Very little is said about limitations and hardly
anything about joint and concurrent tortfeasors. How this book can
properly be described by author and publisher as “Canadian Tort
Law” is hard to see. These omissions sometimes detrimentally
affect the author’s treatment of certain areas. He attempts to
describe negligent misstatement without reference to the tort of
deceit or the doctrine of fiduciary relations. A failure to reveal
that the -progenitors of the rule in Rylands v. Fletcher’ were nuisance
and cattle trespass results in a distorted treatment of that subject.
Space could have been found for a treatment of other topics.
The material on failure to act and nonfeasance is too long, likewise
custom. Sixty-three pages are taken up with a discussion of breach
of statutory duty, with the author going into the kind of extensive
and repetitive detail that one expects to see in a practitioner’s book.
In sharp relief stands Professor Linden’s discussion of the unborn
child –
less than one and a half pages in which all of the funda-
mental questions are evaded. He makes no comment, for example,
on the judicial assumption that a prenatal injury produces damage
only on the birth of the child.
Although the author is prepared to criticise individual decisions,
frequently in forthright terms, and in one case an American writer
(for his “undistinguished and incomplete article” (p.419)), this
book is generally short on criticism and analysis. A few examples
will suffice.
First, he quotes extensively Rand J. in Cook v. Lewis2 and yet
makes no comment on the proposition that the (possibly) negligent
actors did a separate wrong to the injured plaintiff “in relation
to his remedial right of making … proof”3 of negligence.
Secondly, at page 415, referring to the British Columbia Supreme
Court decision in Houle v. B.C. Hydro and Power Authority,4 he
states:
It is apparently possible, however, for a jury to apportion negligence
10 per cent to the defendant, 15 per cent to the plaintiff and 75 per cent
to no one.
1 (1868) L.R. 3 H.L. 330; [1866] L.R. 1 Ex. 265.
2 [1951] S.C.R. 830.
3 Ibid., 832.
4 (1972) 29 D.L.R. (3d) 510.
McGILL LAW JOURNAL
[Vol. 24
Can “no one” be sued as co-defendant or joined by a third party
notice? The author makes no comment on, and essays no explanation
of, this extraordinary decision.
Thirdly, he suggests, without citing authority, that a battery
can be committed by an indirect, intentional act. Later, he lends his
support to the Supreme Court’s misguided historicism” in reversing
the burden of proof of fault in cases of “force directly applied to”
the plaintiff. Why the incidence of the burden of proof of fault in
trespass actions should vary according to whether force is applied
directly or indirectly, the author does not say. Neither does he
criticise the injustice of the decision in Hollebone v. Barnard,6
where the defendant in a negligent trespass action was denied the
benefit of apportionment legislation, nor the incongruity of re-
versing the burden of proof in Larin v. Goshen.7
The book contains a number of blemishes which diminish its
reliability. The following are examples:
First, at page 92, in his discussion of the epicene reasonable
person, he states:
There is even a case which, in another context, imported the concept
of a “humane” person, but it is likely that this standard would be
considered too hard on defendants to be generally applied at present,
although that may change in the coming years (p.92).
The case referred to is Southern Portland Cement v. Cooper” and
the unspecified context is occupiers’ liability to trespassers but
the clear implication is that the standard somehow exceeds that of
the reasonable man.
Secondly, Professor Linden states (p.220, 260) that the burden
of proof of negligence is reversed in the case of injury caused by a
dangerous product. This statement is in no way qualified and is
supported by reference to only one decision, Ives v. ClareY A reading
of that case reveals that the Ontario judge based himself on a
perverse reading of the Privy Council decision in Dominion Natural
Gas v. Collins and Perkins.0
Thirdly, liability for wild and vicious domestic animals is mis-
leadingly assimilated to Rylands v. Fletcher” liability (p.453).
5 Supra, note 2.
6 [1954] O.R. 236 (H.C.).
7 (1975) 56 D.L.R. (3d) 719 (N.S.S.C.).
8 (1974) 2 W.L.R. 152 (P.C.).
9 [1971] 1 O.R. 417′ (H.C.).
10 [1909] A.C. 640 (P.C.).
11 Supra, note 1.
19781
BOOK REVIEWS – LIVRES NOUVEAUX
The author’s chapter on negligent misstatement is a particular
disappointment. As stated above, there is no reference to deceit and
the doctrine of fiduciary relations. He does not even breathe the
words “special relationship.” Nor does he analyse the idea of
assumption of responsibility which is present with varying emphasis
in all the speeches in Hedley Byrne v. Heller.12 He does, however,
refer to Lord Denning’s attack on the idea in Minister of Housing
v. Sharp where his Lordship’s reference to voluntary assumption
of responsibility emerges in the text as voluntary assumption of
risk (p.386). It is hardly surprising, therefore, that Professor Linden
refers to an “imposed” duty (p.383) in Hedley Byrne 4 and that he
fails to appreciate the significance of the disclaimer clause. In
their Lordships’ collective opinion, the disclaimer clause did not
exclude a duty raised by reasonable foreseeability; rather, it negated
the very assumption of responsibility by the defendants in the first
place. The author’s judgment of the case as a “confusing dictum”
[sic] (p.383) is singularly inapt.
Perhaps the book’s major shortcoming is its insufficient clarity
of purpose. Professor Linden has set out to write a text but has
produced something more like a tract. The book is written in a
thoroughly tendentious way and is dominated by the author’s
apparent desire to see the burden of proof of fault reversed when-
ever and however possible, with a liberal admixture of strict
liability thrown in from time to time. In the process, the author
fails to give an account of the organic development of tort law. His
temporal points of reference are the present and future only, and
the dividing line between the two is not always as clear as it
should be.
Finally, the author has a tendency to recite case after case in a
mechanical fashion and uses too many and too lengthy quotations,
some of which are remarkably trite and do not bear repetition. It
is difficult to see what market this book serves.
Michael G. Bridge*
12 [1964] A.C. 465 (H.L.).
13 (1970) 2 Q.B. 223.
14 Supra, note 12.
* Associate Professor, Faculty of Law, McGill University.
McGILL LAW JOURNAL
[Vol. 24
Canadian Environmental Law, by Robert T. Franson and Alastair R.
Lucas, Toronto: Butterworths, 1976. 6 volumes. ($275.00*).
Professors Franson and Lucas have obviously devoted consider-
able effort to producing this six-volume loose-leaf service dealing
with Canadian environmental law. Following a tradition pattern in
this sort of enterprise, the first volume is devoted to a statement of
the law together with a digest of cases. Volumes 2 to 6 contain
major statutes and regulations on environmental law from all Ca-
nadian jurisdictions. Volume 6 also contains an index.
On examining a publication of this type –
For those with purely regional interests, the publishers do offer
the possibility of purchasing certain volumes only. These regional
packages include volumes 1 and 6 (Statement of the law, federal
statutes and index) and the volume containing the pertinent provin-
cial statutes and regulations. For purposes of this review, the pub-
lishers have provided volumes 1 and 5 only (volume 5 containing
the provincial statutes and regulations of the Atlantic provinces
and Quebec). Consequently, only volumes 1 and 5 will be assessed.
and their number
in recent years has increased tremendously –
one must never lose
sight of the market for which it is intended. As this service appears
to be intended for practising lawyers the review has been prepared
with that thought in mind. On the whole, Franson and Lucas have
done a masterful job in collating material and in drafting the state-
ment of law. The latter effort is certainly the more difficult for it
requires the authors to be selective in their choice of subject
matter, concise and yet thorough in its presentation. My chief
reservations relate not so much to their effort as to the pitfalls
inherent in the subject they have chosen.
Unlike mining law, oil and gas law or tax law, all of which have
been the object of similar publications by the same publishers,
environmental law is not an easy field to define. Calling it “that body
of law aimed principally at protecting the environment”‘ is not very
1 Franson and Lucas, Canadian Environmental Law (1976), vol.1, [1], 201.
* The full service bears the kind of price tag that serves to identify the
public for whom
is intended: practising lawyers and their corporate
clients. Low-budget environmental protection groups are obviously not in
the publisher’s market and this is deplorable. It is also out-of-reach for law
students, many law professors and those concerned members of the public
who have been largely responsible for the growth of environmental law.
it
19781
BOOK REVIEWS – LIVRES NOUVEAUX
helpful as this includes too wide a range of human activity. To keep
the subject manageable, the authors have been forced to pare this
broad definition down to a few specific headings: air and water
pollution, litter and solid waste disposal, noise, pesticides and con-
taminants. On the way, a number of topics have of necessity been
left aside or worse, given a cursory and superficial treatment. These
include urban and regional planning, heritage legislation and the
workplace environment. Soil conservation in such key industries
as forestry, mining and agriculture is also largely ignored for two
stated reasons: first, legislation in these areas is largely aimed at
specific industries and second, “there is simply too much to in-
clude”Y However valid these reasons may be, they leave the reader
with the distinct impression that there is much of environmental
law which has not been entrapped within the covers of volume 1.
The difficulty which the authors have in defining environmental
law is reflected throughout the service, especially in the selection of
statutes and regulations published in volumes 2 to 6. There is a
certain lack of uniformity from one jurisdiction to another which
leads one to suspect that many statutes were selected by the relation-
ship which the title, rather than the content, bore to the authors’
definition of environmental law. As a result, many environmental
provisions contained in statutes dealing with other matters have
been left out. This has led, in the case of Quebec, to the omission
of the Watercourses Act,3 the provisions of the Cultural Property Act
dealing with natural districts,4 the provisions of the Roads Act dealing
with roadside dumps,5 the so-called “reserve of three chains”6 and
provisions of municipal enabling statutes dealing with environ-
mental matters7 It is also surprising that the various provincial
2 Ibid., vol.1, [1.4], 205.
– R.S.Q. 1964, c.84.
4S.Q. 1972, c.19, ss.45 to 50 and the Regulation respecting historic and
natural districts, Q.O.G. 1973, Part 2.
BR.S.Q. 1964, c.133, ss.25a – 25e (am. by An Act respecting roadside dumps
and old car dumps, S.Q. 1965, c.48; am. by Transport Department Act, S.Q.
1972, c.54).
0GLands and Forests Act, R.S.Q. 1964, c.92, s.41a (am. by Wild Life Con-
servation Act, S.Q. 1969, c.58, s.83.
7One example would be s.426(ld) of the Cities and Towns Act, R.S.Q. 1964,
c.193 (am. by S.Q. 1974, c.46, s.1; am. by S.Q. 1975, c.66, s.14) which enables
municipalities to prevent for a temporary period of twelve months the
demolition of an immoveable identified as cultural property or as within
an area which might appropriately be designed as an historic or natural
district. A similar provision is to be found in the Municipal Code, art.392f
(am. by S.Q. 1974, c.46, s.1; am. by S.Q. 1975, c.82, s.22).
McGILL LAW JOURNAL
[Vol. 24
parks statutes have been left out’ while space is devoted to such
esoteric curios as the Quebec Artificial Inducement of Rain Act and
Tree Protection Act.9
The chapter on constitutional law underlines the difficulties
of doing justice to a broad, inadequately-defined topic in sufficient
depth to enable the practising lawyer to solve specific problems. To
attain this goal, the authors are compelled to cover almost every
area of constitutional law as it might hypothetically relate to
environmental law. In general, the discussion attains a high level
and represents a masterful synthesis of the topic, but practising
lawyers faced with complex constitutional litigation in the environ-
mental field should not expect to find more in the service than the
starting point for their research. That the authors have achieved
this much is to their credit and far overshadows any specific cri-
ticisms which may be directed against the text.
The short development on the problem of interjurisdictional
immunity is one example of inadequate treatment of a major cons-
titutional problem.’ The immunity doctrine has important environ-
mental implications with respect to the application of provincial
legislation to federal Crown lands. Yet there is no specific dis-
cussion of this aspect of the doctrine and some major references are
omitted.” There are also a number of cases on the subject which
it would have been useful to cite.12
The discussion of the spending power offers a welcome con-
trast. The authors are careful to point out the limits to the federal
spending power which the cases have hinted at and some writers
have blissfully ignored. Some weight might be added to the authors’
position by reference to an article which develops more fully some
of their arguments. 13
8 1n the case of Quebec, the new Parks Act would certainly deserve to be
classified as environmental legislation: S.Q. 1977, c.56 (Bill 19).
9 S.Q. 1970, c.28 and R.S.Q. 1964, c.95.
‘0DSupra, note 1, vol.1, [2.7.3], 271-272.
11 LaForest, Natural Resources and Public Property under the Canadian
Constitution (1969); Garant, Contribution & l’dtude du statut juridique de
l’administration gouvernementale (1972) 50 Can.Bar Rev. 50; Gibson, The
“Federal Enclave” Fallacy in Canadian Constitutional Law (1976)
14 Alta
L.Rev. 167.
12Adro Club de Montrdal v. Montreal North [1972] C.S. 695; Re Orangeville
Airport Ltd and Caledon (1976) 66 D.L.R. (3d) 610 (Ont. C.A.).
13 Dupont, Le pouvoir de ddpenser du gouvernement fdddral: “A Dead
Issue”? (1967) C.de D.; U.B.C.L.Rev. 69.
1978]
BOOK REVIEWS – LIVRES NOUVEAUX
After analyzing the Interprovincial Cooperatives decision, 4 Fran-
son and Lucas conclude that federal jurisdiction over air is even
clearer “in light of the speed with which the air crosses the whole
of the country”. 5 This undocumented statement is of dubious
validity and certainly cannot be made to flow from a careful reading
of the Interprovincial Cooperatives decision. Constitutional juris-
diction over air pollution is a complex problem, as some writers
have ably demonstrated. 6
The part of the constitutional law chapter devoted to an over-
view of federal-provincial jurisdiction ([2.8]) should either be ex-
panded or dropped as in its present form it is too superficial and
incomplete to be of any real use to practising lawyers. How can
one do justice to the jurisdictional issues in the field of planning
in one fifteen-line paragraph? Inevitably certain major points are
omitted when the authors state that federal jurisdiction must be
based on the spending power or the power over census and statis-
tics. What about the general power (planning jurisdiction over the
National Capital Area)’ 1 or ancillary powers (federal expropriation
powers) ?18
One final note on the constitutional law chapter applies equally
well to other parts of the study as will be pointed out below. Fran-
son and Lucas seem to be largely unaware of the very considerable
body of legal literature in the French language dealing with their
subject. In the field of constitutional law as it relates to the envi-
ronment, it is my view that some of the best in-depth research on
the subject in recent years has been published in the French lan-
guage. 9 It is highly likely that Franson and Lucas’ oversight is more
14Interprovincial Co-operatives Ltd v. R (1975) 53 D.L.R. (3d) 321 (S.C.C.).
35 Supra, note 1, vol.1, [2.4.9], 266.
‘0 Alh6riti~re, Les probl~mes constitutionnels de la lutte contre la pollution
de l’espace atmosphdrique au Canada (1972) 50 Can.Bar Rev. 561.
17 Munro v. National Capital Commission [1966] S.C.R. 663.
18 See generally, Lajoie, Expropriation et f~dralisme au Canada (1972).
19 See, e.g., Alh6riti~re’s doctoral thesis, La gestion des eaux en droit cons-
titutionnel canadien (1976), Editeur officiel du Qu6bec, and by the same
author, La compdtence fddrale sur les p~cheries et la lutte contre la pollu-
tion des eaux (1972), 13 C.de D. 53; Eldments pour une 6tude comparative des
dix organismes provinciaux au Canada charggs de mener la lutte contre La
pollution des eaux, 3 R.G.D. 280; L’Ecuyer, Les dimensions nationales et la
gestion de l’eau (1972) 13 C.de D. 231. On water law generally, including consti-
tutional aspects, there is the comprehensive study by the Centre de recher-
che en droit public (C.R.D.P.), Le droit qudbdeois de l’eau (1976) 2 vols., Qu6-
bee, Ministare des Richesses naturelles.
McGILL LAW JOURNAL
[Vol. 24
due to the language barrier than to any conscious manifestation of
what Chief Justice Jules Desch~nes of the Quebec Superior Court
has called “judicial separatism”, but nonetheless this cannot serve
as an excuse for depriving English-speaking lawyers with a reading
knowledge of French of access to this important body of literature.
There is also no excuse for not locating the French-language law
review articles as they are all indexed under the appropriate English
subject headings in the Index to Canadian Legal Periodical Litera-
ture.
The chapter on civil liability for environmental damage is ex-
tremely well done and the authors are once again to be congratulat-
ed on a readable and thorough analysis. The chapter’s major defect
is that it will be of little or no use to Quebec lawyers as private law
in that province is based on civil law and not on common law. In all
fairness, it would have been proper for Franson and Lucas to warn
readers in the opening lines of the chapter that the law stated there-
in is that of the nine common-law jurisdictions in Canada. In this
respect, however, the authors stand in good company because most
private law treatises dealing with the common-law jurisdictions in
Canada forego this caveat.
In fact the civil law and common law systems differ consider-
ably in the area of liability for environmental damage, if not always
in the result at least in the legal categories and channels which must
be followed to reach that result. Thus responsibility for environ-
mental damage in the civil law will flow from three broad headings:
fault (art. 1053 C.C.), abuse of neighbourhood rights and duties and
legal servitudes (art. 501 C.C. et seq.). A separate treatment of these
headings in the law of Quebec would have been most valuable to
lawyers faced with problems to solve under Quebec law. 0
In the section devoted to injunctions, the reader is left with the
impression that the remedy is generally available against polluting
industries. Later on, in the section on statutory modifications,
no mention is made of the fact that in some jurisdictions the remedy
of injunction against polluting industries has been barred by legisla-
20See generally: Baudouin, La responsabilitd civile dilictuelle (1973);
Kenniff, Le contr6le public de l’utilisation du sol et des ressources en droit
qudbdcois – I (1975) C.de D. 763, 818-828; Hdtu et Piette, Le droit de l’envi-
ronnement au Qudbec (1976) 36 R.du B. 621; Htu, L’application de la thdorie
des troubles de voisinage au droit de l’environnernent du Qudbec (1977) 23
McGill L.I. 281.
19781
BOOK REVIEWS – LIVRES NOUVEAUX
tion.’ Such a legislative bar was immediately enacted in Ontario, for
example, to remedy the effects of the landmark decision in K.V.P.
Co. v. McKie.22 The statement that possible economic hardship to
the defendant in injunction proceedings is not generally regarded
by the courts as relevant 3 is thus misleading in jurisdictions where
remedial legislation has either barred injunction proceedings or
instructed the courts to balance the impact of granting an injunction
on the economic situation of the defendant and the community. Nor
do Franson and Lucas draw any distinction between interlocutory
and permanent injunctions as to the application of the “balancing
of equities” rule. In some Quebec cases which are not beyond cri-
ticism, the courts have gone as far as to refuse an interlocutory
injunction on the grounds that the balance of equities lay in favour
of the economic interests of the community in keeping jobs, against
the environmental interests of those affected by the polluting in-
dustry 24
The section on ground water25 in the chapter on civil liability also
fails to do justice to the civil law of Quebec. Moreover, the later
section on statutory modification with respect to Quebec does not
make much sense and contains several glaring errors of such mag-
nitude that the best one can do in a short commentary of this
nature is to refer the authors to the literature. 6 Suffice it to men-
tion two points here. First, the law of Quebec distinguishes between
springs which belong outright to the surface owner who is free to
dispose of them as he sees fit (art.502 C.C.), and underground water
which is regulated by a permit system.2 7 The second point is that
the authors’ statement that no general provision vesting ownership
and right to use of water in the crown is contradicted by article
21Under the Quebec Cities and Towns Act, where an industry has been
operating in a municipality for more than five years and has been authorized
to operate by municipal by-law: R.S.Q. 1964, c.193, s.427(18). Such a by-law
cannot subsequently be repealed! For similar provisions in Ontario, see
Estrin, Annual Survey of Canadian Law – Part II – Environmental Law (1975)
7 Ott.L.Rev. 397, 401-402.
22 [1949] S.C.R. 698; The KVP Company Limited Act, S.O. 1950, c.33.
23 Supra, note 1, vol.1, [3.8.2], 376.
24 Beaulieu v. Brique Citadelle Ltde [1971] C.S. 181. See also Grandes-Ber-
geronnes v. Guay [1976] C.A. 230.
25 Supra, note 1, vol.1, [3.9.2], [3.9.4.9], 381-382, 389.
26 See especially: Le droit qudbdcois de l’eau, supra, note 19; Bouffard, Trai-
td du domaine (1921) chs.4 and 5.
2 Mining Act, S.Q. 1965, c.34, s.190-194; Regulations concerning Under-
ground Waters, (1967) 99 Q.O.G., 2921 (no 18, 6/5/1967). Quebec Revised Re-
gulations 1972, 3-019.
McGILL LAW JOURNAL
[Vol. 24
400 C.C. Finally, Franson and Lucas’ statement that there is no
substantial difference between the common law and civil law with
respect to riparian rights is not supported by the cases and authors
cited in the footnote.”‘ Once again the authors have confused some
similarity in result with an identity of legal system, thereby ignoring
the impact on the Quebec legal system of the old French law in
force prior to the Conquest and the seigniorial land grant system
which was not abolished until 1854.
A final remark on the chapter dealing with civil liability con-
cerns references to the relator action.29 This remedy has had a
chequered history in the law of Quebec and has only recently been
revived in environmental litigation.30 It is also worth pointing out
that the McWhirter case31 has been overruled by the House of Lords
in Gouriet v. Union of Post Office Workers22
In the chapter devoted to air and water pollution control, Fran-
son and Lucas provide a thorough description and a careful analysis
of the principal statutes and regulations dealing with this area of
environmental law. With few exceptions, they suceed in avoiding
the main pitfalls of such an enterprise, in the form of unconscious
omissions and cursory descriptions.
Without wishing to dwell on the difficulty of finding a satisfac-
tory definition of environmental law, one must underscore that the
authors’ continuing quest for such a definition is in part reflected
in this chapter. Some federal material dealing with toxic substances
in the workplace is included, although no such provincial material
is canvassed.3 3 Provincial parks legislation is also referred to, al-
though none of the statutes are included in later volumes .These are
minor points and perhaps serve to highlight the complexity of the
subject rather than any defect in its treatment.
In the authors’ description of the federal Clean Air Act,3 4 no
mention is made of the definition of “ambient air”, although the
28 See especially, Brun, “Le droit qudbdcois et l’eau (1663-1969)”
in Le terri-
toire du Qudbec (1974), 149-203; Bouffard, supra, note 26, ch.4; Le droit qud-
bdcois de l’eau, supra, note 19, 149-213.
29 Supra, note 1, vol.1, [3.1.1.2], 355.
30 Giroux, L’int~r~t ez poursuivre et la protection de ‘environnement en droit
qu~bdcois et canadien (1977) 23 McGillL.J. 292; P6pin, L’intgrgt &i poursuivre
en droit public canadien (1975) 6 R.D.U.S. 3.
31 McWhirter v. Independent Broadcasting Authority [1973] 2 W.L.R. 344,
1 All E.R. 689 (C.A.).
32 [1977] 3 W.L.R. 300, 3 All E.R. 70 (H.L.).
33 Supra, note 1, vol.1, [4.2.1.3.3], 471. See also ibid., [6.3.3], 744.
34 Supra, note 1, vol.1, [4.2.1.1], 466-470.
1978]
BOOK REVIEWS -LIVRES NOUVEAUX
definitions of “air contaminant” and “air pollution” are given. One
would have thought that the definition of “ambient air” should have
been included as it fixes the scope of application of the Act by ex-
cluding from its ambit, air within a structure such as a factory or
in an underground space such as a mine.
The section on Quebec law in this chapter has been considerably
improved by the issue of the second supplement in March 1977.
References have been added to some of the literature and cases,
and important distinctions have now been made, such as that
between the two general municipal enabling statutes. Much is still
missing but the authors are to be commended for having improved
the section considerably. It is unfortunate that the improvement
in content should be marred by an inordinately high number of typo-
graphical errors.
The presentation of the statutory material in volume 5 is well-
organized, thus facilitating consultation. An examination of the
supplements also reveals that amendments and new statutory mat-
erial are issued promptly. My specific comments on the content are
limited to the Quebec material. The Quebec (Revised) Statutory
Regulations referred to on occasion 35 are a private consolidation
without any -legal status. As many unauthorized changes were made
in the original regulations during the process of consolidation, one
is always well advised to refer to and consult the original document
in the Quebec Official Gazette (Q.O.G.). It should also be noted
that contrary to the note at the beginning of the Environment
Quality Act,36 sections 54, 55, 56, 58, 59, 64, 66 and 67 were proclaim-
ed in force on January 22, 1975.37
If this service is really intended for the practising Bar, I am at
a -loss to explain why in the Quebec section the statutes and materials
are printed in English only. Until the recent Charter of the French
language,3 8 both languages were officially used in statutes and
regulations. Since the enactment of the Charter, new statutes are
official in French only (subject to what the courts may decide as
to the constitutional validity of those parts of the Charter). Even
under the now-repealed Official Language Act,39 the French text
of a statute took precedence over the English text where discre-
pancies could not be resolved by the ordinary rules of statutory
35 Ibid., vol.5, [lA], R.S.Q. 1964, c.161, 51.
36 Ibid., [3], S.Q. 1972, c.49, 201.
37 (1975) 107 Q.O.G., part 2, 859 (no 7, 12/1/1975).
38 Charte de la langue frangaise au Qudbec, S.Q. 1977, c.5.
39 S.Q. 1974, c.6 (repealed 1977, c.5).
McGILL LAW JOURNAL
[Vol. 24
interpretation. 40 Its seems to me that the publishers ought to con-
sider it both essential in law and sound in terms of marketing to
print the Quebec material in both French and English. Any other
course of action must be viewed as a relinquishment of the market
of practising lawyers in Quebec.
In conclusion, Franson and Lucas have made an important
contribution to improving the knowledge of environmental law
among members of the legal profession. For students and teachers
of law, this service will provide a base from which to launch their
research and a rich source of materials for those interested in com-
parative law. Many of the comments made here are aimed at im-
proving the service in the future. For the present, the authors are
to be commended for having accomplished a-considerable task in
very capable fashion.
Patrick Kenniff*
40 S.Q. 1974, c.6, s.2.
* Associate Professor Faculty of Law, Laval University.
19781
BOOK REVIEWS-LIVRES NOUVEAUX
Harmonisation du droit des affaires dans les pays du march6 commun:
La formation du contrat, sous la direction de Rend Rodigre, Centre National
de la Recherche Scientifique, Paris: Editions A. Pedone, 1976, pp.140 .
The first of a programme of comparative studies in obligations
and contracts, this volume deals with the formation of contract in
the nine Member States of the European Economic Community.
However, English and Irish law come under one rubric whilst
Scottish law has been ignored. That will not be forgiven in Scotland.
The rather ambitious object of the exercise is to produce a draft
project of a uniform law and in fact we find such a draft at the end
of the book. The conclusions are drawn from replies to a set of
questions addressed to the nine systems of law and tabulated in a
comparative table. Thus one can see at a glance where the systems
agree or disagree and where the answer is qualified. Not surprisingly,
the English-Irish system is the odd man out more often than any
other though, surprisingly perhaps, Danish law too asserts its uni-
queness more than any other Civil Law system considered in the
project.
The enquiry purports to determine the juristic nature of con-
tract, the mechanism of offer and acceptance and the essence of
agreement and, in broad terms, it does. The result provides, there-
fore, an excellent basis for discussion but unfortunately does not
solve the problem of the unification of national laws. To a national
lawyer his law is his second nature and, when discussing unification,
he does not proceed from an abstract basis but from his own firm
conviction that he has the best system to offer to humanity. It is
precisely on this attitude that many a project of unification has
foundered. However, we have before us a clear and concise exposition
of rudiments of nine systems of law coupled with a project of a
uniform law distilled from these sources and this in itself is an
achievement.
D. Lasok*
* L. en Dr., LL.M., Ph.D., Dr. Juris, of the Middle Temple, Barrister; Visiting
Professor, McGill University, Montreal.
McGILL LAW JOURNAL
[Vol. 24
Aerospace Law; From Scientific Exploration to Commercial Utilization,
by Nicolas Mateesco Matte, Toronto: The Carswell Company Limited; Paris:
Editions A. Pedone, 1977. Pp.354.
In
this welcome volume Nicolas M. Matte OC., Q.C., LL.D.,
Director of the Institute of Air and Space Law of McGill University,
has defined and analyzed the critical space law issues that have
emerged since his publication in 1969 of Aerospace Law. In his new
study he has emphasized the practical utilization of areas of the
space environment, namely outer space, the moon, and other celes-
tial bodies. Thus, his most recent contribution advances the state of
legal art beyond the adolescent stages of space law, which by 1969
had culminated in the Outer Space Treaty,’ to a more mature
second stage of aerospace law.
The structure of Professor Matte’s new book follows to a certain
extent the format of his 1969 volume. Part One of the 1977 book is
entitled “International Cooperation at the Institutional Level and
State Activities”. Indicating his interest in the prospects for the
commercial utilization of the space environment the author in this
part inventories the contributions to such developments of non-
governmental international learned organizations, intergovernmen-
tal organizations, bilateral cooperation among states, and the space
activities of the principal resource states.
Part Two is entitled “Commercial and Cultural Utilization of
Outer Space”. These chapters assess United Nations efforts to
arrive at international agreements on the remote sensing of earth
by satellites and on the direct broadcasting of ideas and images
to home receivers by satellites. In joining these subjects in Part
Two the author specifically acknowledges the similarity of the
legal problems in these situations. The 1967 Outer Space Treaty in
Article 1 provides that the space environment is to be free for
exploration and use by all states without discrimination of any
kind. Yet, such is the tenacity of the notion of national sovereignty
that it is seen by some as having relevance despite treaty pro-
visions in these areas. The author, as a realist, duly takes national
concerns into account.
Part Three is entitled “Conventions and Draft Treaty”. Here the
author examines in detail the background and status of the Con-
1 1967 Can.T.S., No.19.
19781
BOOK REVIEWS – LIVRES NOUVEAUX
vention on International Liability for Damage caused by Space
(1972)2 and the Convention on Registration of Objects
Objects
Launched into Outer Space (1974) .
In this part the author also
describes the present attempt at the United Nations to secure the
drafting of a treaty on the moon. The book contains nine annexes
consisting of international agreements of a regional and universal
nature, national and organizational proposals received at the United
Nations relating to sensing and direct satellite broadcasting, the
Convention Relating to the Distribution of Programme-Carrying
Signals Transmitted by Satellite (1974) ,4 and the Draft Treaty
Relating to the Moon (1975).5
This volume, like its predecessor, is marked by the scholarly
and objective analysis of the author. There are numerous citations
of the documents resulting from the deliberations of the U.N. Com-
mittee on the Peaceful Uses of Outer Space. There are frequent
references to the papers delivered at the annual meetings of the
International Institute of Space Law, which reflect the very high
quality of the scholarly efforts that see fruition in this forum.
Scholarly papers delivered at meetings sponsored by McGill Uni-
versity’s prestigious Institute of Air and Space Law also are fre-
quently cited.
Professor Matte has not been content merely to provide an
assessment of the progressive development of the critical concepts
of space law following the 1967 Outer Space Treaty. He joins other
scholars who are increasingly reflecting concern over the lacunae
in Article 4 of that agreement relating to the use of the space en-
vironment for “military purposes” (p.79),
including the use of
“a destructive satellite in outer space” (p.80).
Holding the pragmatic view that mankind is vastly influenced
by forces producing an accelerated world interdependence he offers
constructive suggestions for future consideration. He continues to
believe that, “functional freedom in an indivisible space must be
acknowledged” (p.203). In order to relieve sovereign concerns over
sensing by foreign states he favours the, “establishment of a remote
sensing data distribution centre or centres under U.N. auspices”
(p.125). Believing that non-sensing states may nonetheless have the
benefit of the science and technology of more advanced states he
urges that,
2 United Nations General Assembly Resolution 2777 (XXVI) of November
29th, 1971. Reprinted in (1972) 66 Am.J.Int.L. 702.
31976 Can.T.S., No.36.
4 U.N. DOGS ST/LEG/SER.D/10 1976, 539.
5 U.N. Documents on Space, A/AC.105/115 Annex 1.
McGILL LAW JOURNAL
[Vol. 24
… a compromise must be found between the principle of freedom of
exploration and use of outer space and the principle of national sover-
eignty over natural resources. Rather than adopting a strict prior consent
rule, the solution should perhaps be sought in the adoption of a free
dissemination of data rule, with certain priorities for the sensed State
(p.134).
He also urges the utilization of regional centres under U.N. auspices
for the dissemination of data provided by sensing.
Professor Matte favours the utilization of regional facilities in
the field of direct broadcasting. He writes,
…
if an international cooperative structure is to be set up in the field
of direct satellite broadcasting, it seems to be more appropriate to do
this on a regional rather than on a global basis (p.138).
He supports this conclusion with the view that such regional ap-
proaches would suitably bolster the various educational and social
needs of different cultures and national outlooks. He believes that
international co-operation and consultation can be the vehicle to
overcome national preoccupations that the science and technology
utilized in modem space activities will allow for an unlawful inter-
ference by one state in the allegedly wholly domestic affairs of
other states. Throughout he accepts the view that advanced space
science and technology are vital forces whose overall influences
cannot be thwarted. Such forces reduce, as he observes, the “abso-
lutism of the past principles of sovereignty” (p.206). For the future
he urges the need to accept a vision of a new kind of international
instrumentality to deal with space problems.
Professor Matte has clearly demonstrated the transition from
the major interest in the 1960s in the technical exploration of the
space environment to concerns for an international economic and
socially-oriented exploitation of the environment in the 1970s. He
has clearly identified the need for law to keep pace with such de-
velopments and for the improvement of the world’s institutions to
this end. In his new book he has again made a major contribution
to an understanding of space activities and the legal and institu-
tional aspects of man’s great adventure in space.
Carl Q. Christol*
* Professor of International Law and Political Science, University of
Southern California, Los Angeles, California.
