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Labour Law As A Subset Of Employment Law? Up-Dating Langille’S Insights With A Capabilities Approach, Bruce P. Archibald

Dalhousie Law Journal

Brian Langille’s influential 1981 article entitled “Labour Law is a Subset of Employment Law” is evaluated in the light of changes in the economic, social and political context since its publication and the shifts in the appropriate normative underpinnings for such an exercise. Langille’s conceptually radical original version of a unified field for legal governance of the workplace, rooted in liberal constitutional principles, has been accepted in the interim by many. However, four decades later, this schema is no longer an adequate basis for responding to challenges for achieving fairness and justice in a world of precarious employment, globally organized …

Foreword & Table Of Contents

Dalhousie Law Journal

Labour Law versus Employment Law in the UK and Canada: A Brian Langille Legacy

The special segment in this Volume 43, which is devoted to an exercise in comparative labour, is the brain-child of Alan Bogg and Mark Freedland. Both were at Oxford University in 2016, thinking about the up-coming third conference of the Labour Law Research Network (LLRN) in Toronto, which was scheduled for summer of 2017. (Alan is now at Bristol.) They thought it would be interesting to explore distinctions between labour law and employment law in both Canada and the United Kingdom, where the notions have different …

Re-Thinking The Process For Administering Oaths And Affirmations, Colton Fehr

Dalhousie Law Journal

Courts around the world require witnesses to swear an oath to a religious deity or affirm to tell the truth before providing testimony. It is widely thought that such a process has the potential to give rise to unnecessary bias against witnesses based on their religious beliefs or lack thereof. Scholars have offered two main prescriptions to remedy this problem: (i) abolish the oath and have all witnesses promise to tell the truth; or (ii) require oath-swearing witnesses to invoke a non-specific reference to God. The former proposal is problematic as it rests on the unproven assertion that giving an …

Faith And/In Medicine: Religious And Conscientious Objections To Maid, Daphne Gilbert

Dalhousie Law Journal

Across Canada, health care institutions that operate under the umbrella of religious traditions refuse to offer medical assistance in dying (MAiD) on the grounds that it violates their Charter-protected rights to freedom of religion and conscience. This article analyses the Supreme Court jurisprudence on section 2(a) and concludes that it should not extend to the protection of institutional rights. While the Court has not definitively pronounced a view on this matter, its jurisprudence suggests that any institutional right to freedom of religion would not extend to decisions on publicly-funded and legal health care. MAiD is a constitutionally-protected option for individuals …

Does “No, Not Without A Condom” Mean “Yes, Even Without A Condom”?: The Fallout From R V Hutchinson, Lise Gotell, Isabel Grant

Dalhousie Law Journal

In R v Kirkpatrick, the Court of Appeal for British Columbia held that consent to sexual activity cannot be established where a man proceeds with unprotected vaginal intercourse when his sexual partner has insisted on a condom. While this finding should be uncontroversial, it is in fact contrary to the Supreme Court of Canada ruling in R v Hutchinson. In this comment we argue that the approach taken in Kirkpatrick is correct and consistent with the landmark decision in R v Ewanchuk. We urge the Supreme Court of Canada to reconsider its majority judgment in Hutchinson in order to fully …

Employment Law Revisited, Mark Freedland

Dalhousie Law Journal

This critique of Brian Langille’s famous “Subset” article considers the historical and current meaning of “employment law” in Canada and in the UK. In Canada, “employment law” was fashioned by Innis Christie in the 1980s as the law of personal work relations for the non-unionized sector, with “labour law” applying to the unionized sector of the economy. In the UK, “individual employment law” appeared in the 1970s to be a distinct discipline; but since that time it has largely re-merged with labour law, with the terms “employment law” and “labour law” becoming virtually synonymous. An enlarged scope is proposed for …

“Labour Law Is A Subset Of Employment Law” Revisited, Alan Bogg

Dalhousie Law Journal

This article revisits the arguments in Brian Langille’s seminal law review article, “Labour Law is a Subset of Employment Law.” Langille’s article was based upon two main claims: (a) that (individual) employment law should be understood as the “set” and (collective) labour law the “subset” of employment law (the primacy of employment law); (b) that “public values” have priority over “private values” in the regulation of work (the primacy of public values). These two claims were presented as mutually reinforcing in “Subset.” Drawing on specific examples from UK and Canadian law, this article endorses the first claim but rejects the …

Illuminating False Light: Assessing The Case For The False Light Tort In Canada, Fraser Duncan

Dalhousie Law Journal

The false light tort has been the most contentious of the four privacy torts recognized in many US states, receiving criticism for its uncertain connection to privacy interests, its overlap with defamation and its chilling effect on free speech. While the tort has not previously received much judicial or scholarly attention in Canada, the recent decision of the Ontario Superior Court of Justice in Yenovkian v Gulian recognized false light as a cause of action in the province. This article cautions other Canadian common law courts against following suit through an analysis of the nature, history, and criticisms of the …

Unifying The Field: Mapping The Relationship Between Work Law Regimes In Ontario, Then And Now, Claire Mumme

Dalhousie Law Journal

Since the mid-20th century in Canada, labour and employment law have been treated as two separate but related fields. In 1981 Brian Langille argued in “Labour Law is a Subset of Employment Law” for the unification of the fields, so that all forms of waged work were understood as matters of public policy, rather than leaving some types of work to private law regulation. Taking up Langille’s argument, this paper argues that employment contracts, individual and collective, are structured through the overlap, interaction and gaps between work law regimes. The creation of a unified field moves from studying the regimes …

If Labour Law Is A Subset Of Employment Law, What Is Employment Law A Subset Of?, Brian A. Langille

Dalhousie Law Journal

An academic life lived over decades can provide real rewards. One is thinking about a subject, such as labour law, over a significant period. Such longer-term speculation can lead to interesting questions—such as, what makes labour law a subject anyway? A second advantage of academic seniority is the opportunity to sustain longer-term relationships with other scholars. Both the temporal and personal advantages are joined here because four leading labour law scholars whom I have known for a (sometimes very long) while, have written about an essay that I wrote forty years ago. This essay is my effort to join them …

Pogg And Treaties: The Role Of International Agreements In National Concern Analysis, Gib Van Ert

Dalhousie Law Journal

Canada’s international treaty obligations have featured prominently in Privy Council and Supreme Court of Canada jurisprudence on Parliament’s power to make laws for the peace, order and good government of Canada (POGG). How treaties ought properly to be used in determining Parliament’s POGG jurisdiction is a constitutionally fraught question. The federal executive cannot be permitted to extend Parliament’s legislative jurisdiction by making promises to foreign states. Yet the existence of treaty obligations is undoubtedly relevant to the question of whether a given subject has become a matter of national concern. In the upcoming Greenhouse Gas Pollution Pricing Act references, the …

Responsible Scholarship In A Crisis: A Plea For Fairness In Academic Discourse On Carbon Pricing References, Stepan Wood, Meinhard Doelle, Dayna N. Scott

Dalhousie Law Journal

This article offers a critical review of a paper Professor Dwight Newman recently published on the constitutionality of the federal government’s national carbon pricing legislation and the Saskatchewan and Ontario court decisions upholding the law. Rather than engage with the substance of Professor Newman’s article, the authors consider whether it respects the norms of rigorous and fair inquiry that enable constructive scholarly debate. The authors conclude that it does not, and that the consequences for the Supreme Court’s resolution of the carbon pricing reference cases could be significant.

Le présent article propose une analyse critique d’un texte publié récemment par …

Billing Without Bilking: Regulating Time-Based Legal Fees, Noel Semple

Dalhousie Law Journal

The billable hour is the most common method for calculating legal fees in Canada. Codes of conduct state that time-based fees must be “fair and reasonable” and “disclosed in a timely fashion,” but provide very little additional guidance. Throughout a time-based retainer, lawyers and clients are confronted with ethical ambiguity. This creates both opportunities for exploitation and conflicts of interest.

This article argues that clear rules and efficient procedures are required to determine what specific billing and disclosure practices are “fair,” “reasonable,” and “timely.” Detailed rules are already replacing vague standards for contingency fees, and time- based fees should move …

Consumer Credit In Canada: A Regulatory Patchwork, Micheline Gleixner

Dalhousie Law Journal

With unlimited access and consequent increased use of consumer credit in Canada and the federal government’s gradual abandonment of consumer credit regulation since Confederation, Provinces and Territories have progressively enacted provincial consumer protection legislation aiming to regulate the consumer credit industry and protect vulnerable consumers.

A review of current provincial and territorial legislative frameworks governing consumer credit reveals significant discrepancies and limitations. Given the expansion of the consumer credit industry and the inherent vulnerability of consumers, the article confirms the need and urgency of strengthening financial consumer protection and provides possible avenues of reform.

It is recommended that Parliament reassert …

The Conceptual Gap Between Doré And Vavilov, Mark Mancini

Dalhousie Law Journal

This paper argues that there is a fundamental conceptual gap between the cases of Doré and Vavilov. This is because both cases are motivated by different conceptions of administrative law. In Vavilov, the paper suggests that the Court melded together two theories of judicial review; a Diceyan theory based on a harmonious understanding of the principles of legislative sovereignty and the Rule of Law; and a “culture of justification” for administrative decision-makers. On the other hand, Doré is motivated by a functionalist understanding of administrative law, in which the expertise of decision- makers is emphasized. The paper explores the doctrinal …

On The Presence Of The Past In The Future Of International Labour Law, Adelle Blackett

Dalhousie Law Journal

Professor Blackett presented this talk as the Invited Speaker at the Schulich School of Law’s Horace E Read Memorial Lecture on 9 October 2019.

*This contribution has not been peer-reviewed.

The Deliberative Dimensions Of Modern Environmental Assessment Law, Jocelyn Stacey

Dalhousie Law Journal

Environmental assessment (EA) is a cornerstone of environmental law. It provides a legal framework for public decision-making about major development projects with implications for environmental protection and the rights and title of Indigenous Peoples. Despite significant literature supporting deliberation as the preferred mode of engagement with those affected by EA decisions, the specific legal demands of EA legislation remain undeveloped. This article suggests a legal foundation for deliberative environmental assessment. It argues that modern EA can be understood through three public law frames: procedural fairness, public inquiry, and the framework for the duty to consult and accommodate. It further argues …

Providing For Victim Redress Within The Legislative Scheme For Tackling Foreign Corruption, Joanna Harrington

Dalhousie Law Journal

This article examines the prospects for victim redress for the corporate commission of foreign corruption, using Canada as a case study. Such cases are typically addressed by negotiated settlements, with Canada’s new “remediation agreement” regime embracing an intention to provide “reparations for harm done to victims or to the community.” Further work, however, needs to be done on defining who is a victim, with the SNC-Lavalin affair having focussed much attention on employees, pensioners and shareholders, with barely a mention of the overseas victims of the alleged crimes. To this end, the article examines comparable efforts undertaken in England to …

The Opioid Crisis As Health Crisis, Not Criminal Crisis: Implications For The Criminal Justice System, Haley Hrymak

Dalhousie Law Journal

The criminal justice system’s response to the opioid crisis exacerbates risks faced by people using drugs and is harmful to public health. Interviews with 11 interviewees including defence counsel, probation officers, and public interest lawyers and advocates revealed three key challenges of working in the criminal justice system during the opioid crisis. First, there is a lack of understanding of addiction within the criminal justice system. Second, as a result of the opioid crisis, fentanyl trafficking sentencing decisions in British Columbia emphasize the need for lengthier prison sentences, which disproportionately affects people who use substances. Third, the conditions on bail …

A Less Private Practice: Government Lawyers And Legal Ethics, Jennifer Leitch

Dalhousie Law Journal

Government lawyers are public servants and legal professionals. How they differ from private lawyers has much to do with whom they purport to represent and how they exercise power as a lawyer. I will look at a particular case-study—the St. Anne’s Residential school adjudication. This case study illustrates the challenges that government lawyers face in fulfilling their professional duty within a traditional private lawyer framework. St. Anne’s Residential School involved some of the most egregious physical, sexual and psychological abuse of Indigenous children between 1941 and 1972. St. Anne’s Residential School litigation is used as a cautionary (and truly tragic) …

Small Claims Disputes In Nova Scotia And Access To Justice, William H. Charles

Dalhousie Law Journal

The author examines, in some detail, the current operations of the Nova Scotia Small Claims Court to determine whether the court, established forty years ago, is still fulfilling its legislative mandates of providing ready access to speedy, informal and inexpensive justice. After reviewing historical attempts by the legal system to provide an effective mechanism to adjudicate minor disputes, and the various factors that eventually resulted in the creation of the present court in 1980, the author identifies a number of other factors that historically had a negative impact on the operation of the court. Many of these, involving court jurisdiction, …

An Examination Of How The Canadian Military's Legal System Responds To Sexual Assault, Elaine Craig

Dalhousie Law Journal

Although the Canadian military has been conducting sexual assault trials for over twenty years, there has been no academic study of them and no external review of them. This review of the military’s sexual assault cases (the first of its kind) yields several important findings. First, the conviction rate for the offence of sexual assault by courts martial is dramatically lower than the rate in Canada’s civilian criminal courts. The difference between acquittal rates in sexual assault cases in these two systems appears to be even larger. Since Operation Honour was launched in 2015 only one soldier has been convicted …

The Bad, The Ugly, And The Horrible: What I Learned About Humanity By Doing Prison Research, Adelina Iftene

Dalhousie Law Journal

Every Canadian academic conducting research with humans must submit an ethics application with their university’s Research Ethics Board. One of the key questions in that application inquired into the level of vulnerability of the interviewees. Filling in that question, I had to check nearly every box: the interviewees were incarcerated, old, under-educated, poor, Indigenous or other racial minorities, and likely had mental and physical disabilities. However, it was not until I met John that I understood what all those boxes actually meant. They were signalling that I was entering a universe of extreme marginalization—the universe of the forgotten. I learned …

A Leap Of Faith: Twail Meets Caribbean Queer Rights Jurisprudence—Intersections With International Human Rights Law, H. Patrick Wells

Dalhousie Law Journal

This article examines the legal status of queer rights in Caribbean jurisprudence. It conducts an analysis of Caribbean queer rights case law, in order to arrive at an understanding of the extent and dynamics of constitutional protection for these rights. It then uses the revelations from this analysis to determine how Caribbean queer rights jurisprudence has intersected with international human rights norms, values and rules. Finally, the article applies the TWAIL methodological approach to international law to argue that the Caribbean queer rights jurisprudence has not so far reflected the counter-hegemonic, resistance, anti-imperialist discourse that TWAIL champions, in spite of …

The Implications Of Federalism For The Regulation Of Federal Government Lawyers, Andrew Flavelle Martin

Dalhousie Law Journal

The implications of Canadian federalism for the regulation of lawyers for the federal government are largely overlooked in the literature and case law. This article argues that employees of the federal government can practice law without being licensed by the corresponding provincial law society (or any law society). However, if they happen to be licensed by a law society, they can be disciplined by that law society—unless and until Parliament adopts legislation immunizing them from law society discipline. The article also considers the possibility that Parliament could create a separate bar for federal government lawyers. It concludes that some form …

Searching For A Summary Judgment Equivalent In Quebec Procedural Law, Kathleen Hammond

Dalhousie Law Journal

The summary judgment is a procedural mechanism that is meant to improve the efficiency of civil litigation by allowing a judgment to be delivered in a summary way, and without the need for a full trial. It is seen as an important tool for dealing with the growing problem of access to justice in Canada. Reform to Ontario’s summary judgment rules in 2010, and a liberal interpretation of the Ontario rules in the case of Hryniak v Mauldin, 2014, have led to a greater reliance by parties on summary judgment motions in Ontario. This trend is also apparent in other …

Treaty Shopping And The New Multilateral Tax Agreement—Is It Business As Usual In Canada?, Catherine Anne Brown, Joseph Bogle

Dalhousie Law Journal

On 1 January 2020 the Organization for Economic Cooperation and Development’s (OECD) Multilateral Convention (MLI) entered into effect for many of Canada’s tax treaties. New provisions introduced by the MLI, specifically the principal purpose test (PPT) and a new preamble, raised concerns that the bar to deny treaty benefits would be substantially lower than the bar previously set by Canada’s General Anti- Avoidance Rule (GAAR). This paper considers how the MLI will impact access to treaty benefits in Canada by applying the new MLI measures to treaty shopping cases previously challenged under the GAAR. The paper concludes that application of …

Popping The Question: What The Questionnaire For Federal Judicial Appointments Reveals About The Pursuit Of Justice, Diversity, And The Commitment To Transparency, Agathon Fric

Dalhousie Law Journal

Since 2017, the Canadian government has published excerpts from questionnaires that prospective judges completed as part of the judicial selection process, subjecting newly appointed superior and federal court judges to a degree of scrutiny that is unprecedented in Canadian history. Using this novel source material, this article explores what a sample of 16 judges’ questionnaires do and do not say about the individuals behind the robes. This review suggests that those appointed to the bench in 2017 generally demonstrate insight into the judicial role in Canada. However, some provide only superficial responses, others parrot back normative values that the government …

Committing To Justice: The Case For Impact Of Race And Culture Assessments In Sentencing African Canadian Offenders, Maria C. Dugas

Dalhousie Law Journal

Canadian judges have made notable, although too limited, strides to recognize the unique conditions of Black Canadians in sentencing processes and decisionmaking. The use of Impact of Race and Culture Assessments in sentencing people of African descent has gradually gained popularity since they were first introduced in R v “X.” These reports provide the court with the necessary information about the effect of systemic anti-Black racism on people of African descent and how the experience of racism has informed the circumstances of the offence, the offender, and how it might inform the offender’s experience of the carceral state. This paper …

Intervenors At The Supreme Court Of Canada, Geoffrey D. Callaghan

Dalhousie Law Journal

My aim in this paper is to offer a normatively attractive and explanatorily sound interpretation of the Supreme Court of Canada’s approach to third party intervention. The crux of my interpretation is that the policy the Court has developed on intervenors allows it to strike a reasonable balance among a number of competing democratic considerations, all of which have value in the context of judicial decision making. In this respect, the Court should be commended for identifying a way to liberalize a practice that possesses many democratically-attractive features, but also the inherent capacity to undermine the democratic standing of the …