The Constitutional Aspect of Canadian Contract Law

Constitutions are generally viewed as foundational to other disciplines, especially when they are written and entrenched as in Canada. This ‘top-down’ perspective provides a partial and arguably fragmented view of Canadian Contract law. The reason is that it does not explain the relationship between the Common law and the Constitution and their reciprocal dynamics. At Common law, the unwritten law is understood as ‘foundational’ to statute and written law. The problem that arises in Canada is that there does not appear to be a uniform ‘general law’ that is truly national. Section 92(13) of the Constitution Act, 1867, confers jurisdiction over ‘property and civil rights’ to provincial legislatures. As a result, Canadian Contract law could be viewed as divided territorially. This view is difficult to sustain in that Canadian unwritten law cannot be a mere transposition of the Common law rules that are otherwise associated with provincial jurisdiction. The alternate question asks to what extent the Canadian Constitution presupposes ius commune, i.e. a reservoir of unwritten legal concepts that underlie the Constitution itself. From this perspective, it is not the Constitution that creates Contract law but rather private contractualism that becomes a backbone of the written document. This essay proposes to examine this proposition by providing a reinterpretation of constitutional jurisprudence related to contracts in both of Canada’s Constitution Act, 1867, and the Constitution Act, 1982.