A Further Note on Final Note: The Scope and Limits of Judicial Law Making

Abstract

Until the Supreme Court of Canada's decision in Friedmann Equity Development Inc. v. Final Note Ltd., no one seemed to know what the function of the sealed contract rule was. The rule had been the subject of both judicial and academic criticism. The critics called it "curious'', "technical", "anomalous", a "dead letter", and "a shell at best". Remarkably, in the face of such epithets, the court in Final Note turned down an invitation to abolish the rule. It asserted that the rule does serve a useful purpose after all and went on to state the case for retaining it. This is the substantive aspect of the court's decision. In any event, the court said, even if there were no case for retaining the rule, its abolition would be a matter for the legislature not the court. This is the institutional aspect of the court's decision. The Hall paper is critical of both the substantive aspect and the institutional aspect. We agree. This paper presents our further thoughts on the matter.