Hu­man rights take prece­dent in dis­putes

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - Pa­trick Bracher

IF YOU are in­volved in a dis­pute, par­tic­u­larly one in­volv­ing the in­ter­pre­ta­tion of con­tracts or statutes, you must be aware that dis­putes will be looked at in the spirit of the Bill of Rights.

A body of case law is grow­ing steadily to re­mind us that con­sti­tu­tional val­ues will be pre­ferred to for­mal­ism or to an in­ter­pre­ta­tion that de­prives peo­ple of ba­sic rights. There are a num­ber of re­cent ex­am­ples.

A med­i­cal doc­tor who was em­ployed by a pro­vin­cial govern­ment was in­jured in an ac­ci­dent while on sec­ond­ment to a mil­i­tary hos­pi­tal. When she sued the na­tional govern­ment the ques­tion was whether she was pre­cluded from su­ing the state as a sin­gle en­tity be­cause of the work­ers’ com­pen­sa­tion laws. In de­cid­ing that for this pur­pose the state is not a sin­gle en­tity but is two en­ti­ties un­der the com­pen­sa­tion act, the court found that on the face of it there was no rea­son for choos­ing one in­ter­pre­ta­tion above an­other.

But to find that the state is a sin­gle en­tity for the pur­poses of the act would de­prive the claimant of her right to pro­tec­tion of her bod­ily in­tegrity and se­cu­rity of per­sons guar­an­teed by the Con­sti­tu­tion, and the scales tilted in her favour.

Where the com­mon law in­cludes con­cepts that are ar­chaic and a re­minder of an un­fair past, the courts will de­velop the com­mon law to pro­mote the demo­cratic val­ues of dig­nity, equal­ity and free­dom.

The courts will them­selves raise con­sti­tu­tional is­sues if the par­ties to a dis­pute do not do so par­tic­u­larly on be­half of or­di­nary lit­i­gants who, in the words of the Con­sti­tu­tional Court, are “adrift on a sea of liti­gious un­cer­tainty”. Ac­cess to jus­tice is an im­por­tant value. But the state, and by anal­ogy the ad­van­taged lit­i­gant, will be set higher stan­dards of com­pli­ance with process than or­di­nary lit­i­gants.

If you read the cases the gen­eral mes­sage is that we are ex­pected to be­have fairly in re­la­tion to oth­ers and good faith is an im­por­tant com­po­nent of any trans­ac­tion.

In this col­umn a year ago I re­ferred to the new court de­ci­sion up­hold­ing sim­ple e-mail elec­tronic sig­na­tures as bind­ing on con­tract­ing par­ties. A per­son who had sent an e-mail that ef­fec­tively amended a writ­ten con­tract that re­quired the amend­ment to be in writ­ing was held to his e-prom­ise. The pro­hi­bi­tion on the oral amend­ment by two con­tract­ing par­ties of a writ­ten doc­u­ment re­quir­ing writ­ten amend­ment has al­ways been con­tro­ver­sial be­cause good faith re­quires that peo­ple are bound by their word to obli­ga­tions they un­der­take in­ten­tion­ally.

No sooner had the judg­ment up­hold­ing sim­ple elec­tronic sig­na­tures ap­peared than com­mer­cial con­tracts started ap­pear­ing with a new clause to the ef­fect that “a sig­na­ture” does not in­clude an elec­tronic sig­na­ture and when things have to be done in writ­ing they must be done with pen and pa­per.

It has of­ten been sug­gested that the in­ter­net is the world’s great­est in­ven­tion. Now that we can send things elec­tron­i­cally why should con­tract terms drag us back into a pre-elec­tronic era to al­low peo­ple to evade their un­der­tak­ings?

If any­one does not want to be bound by their e-mailed mes­sages they should say so ex­plic­itly at the time (and not in a gen­eral dis­claimer at the end of the e-mail).

Do not be sur­prised if the courts refuse to en­force pro­vi­sions such as this on the ba­sis that good con­sti­tu­tional val­ues re­quire that good faith has a real mean­ing in our in­ter­re­la­tion­ships.

Courts will them­selves raise con­sti­tu­tional is­sues if the par­ties to a dis­pute do not

Pa­trick Bracher (@PBracher1) is a di­rec­tor at Nor­ton Rose Ful­bright.

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