Law Commons^™

Access To Justice In The Nova Scotia Small Claims Court 1980-2022, William H. Charles

Dalhousie Law Journal

*This contribution has not been peer-reviewed.

In his latest research paper the author explores the extent or degree to which the Nova Scotia Small Claims Court achieves its declared purpose of providing the citizens of the province with what can accurately be described as a “People’s Court,” that is, a legal agency that would allow ordinary citizens to pursue their legal claims expeditiously and at a reasonable cost with a process that involved lawyers/adjudicators rather than judges. After a review and analysis of several thousand decisions by Nova Scotia Adjudicators/lawyers, the author concluded that the creators of the court had …

Canadian Maritime Law Jurisdiction Revisited: Quo Vadis?, Aldo Chircop

Dalhousie Law Journal

Maritime jurisdiction in Canada has to contend with the division of powers between the federal and provincial levels. At times, this fact has challenged Canadian courts in explaining what should be the interface between federal and provincial law in dual aspect cases and in determining the applicable law or finding complementary applications of federal and provincial law. This essay reflects on the evolution of maritime law jurisdiction in Canada since the establishment of the Federal Court of Canada in 1971. It discusses the imperative of stability and reality of change in maritime law jurisdiction since then with a focus on …

A Reflection Of Canadian Society? An Analysis Of Federal Appointments To Provincial Superior Courts By The Liberal Government Of Justin Trudeau, Erin Crandall

Dalhousie Law Journal

Recent reforms to Canada’s system of federal judicial appointments have sought to make the process more transparent and better able to produce a bench reflective of the society it serves. This paper reviews these reforms and using judicial appointment data (2016–2020), considers whether the Liberal government has met these objectives. The relationship between official bilingualism and representation on the bench is also considered. The paper finds that “diversity” on Canada’s federally appointed provincial courts remains unbalanced. While women have made up the majority of appointments since the Trudeau Liberals formed government in 2015, other equity-deserving groups, like people of colour …

Public Access To Online Hearings, Jérémy Boulanger-Bonnelly

Dalhousie Law Journal

The open court principle faced a significant challenge when courthouses closed their doors to limit the spread of COVID-19. The shift to online hearings in many jurisdictions generated new avenues for public access but also raised concerns for the privacy and security of individuals, and for the administration of justice. Building on existing principles and a review of the measures adopted by courts in Canada, the United Kingdom, the United States, and Australia during the pandemic, this paper seeks to identify best practices to preserve an appropriate balance between openness and competing interests in the online environment. It concludes that …

If I Had More Time, Would I Have Written A Shorter And Faster Decision? An Empirical Examination Of The Evolution Of Trial Court Decisions, Jon Khan

Dalhousie Law Journal

This article draws from my 2019 LLM thesis on Canadian judicial decisions, where I sought to understand two things: how current approaches to judicial decision-writing may impact access to justice and how might we make decisions a better source of data while also making them more timely, concise, accessible, and consistent. It presents the results and analysis of an original empirical study of the evolution of British Columbia trial decisions over 40 years (1980–2018). It argues that the current process for writing Canadian judicial decisions likely does not further the goals of access to justice and may even hinder them. …

Judgments V Reasons In Federal Court Refugee Claim Judicial Reviews: A Bad Precedent, Sean Rehaag, Pierre-André Thériault

Dalhousie Law Journal

This article offers an empirical examination of policies on the publication of refugee law decisions in Canada’s Federal Court. In 2015, the Court issued a notice describing the Court’s general practice of publishing written reasons in cases that the deciding judge considers as having precedential value and of issuing unpublished judgments in cases that the deciding judge does not view as precedential. In 2018, the Court reversed course and issued a new notice. This time, the Court indicated that all final decisions on the merits will be published.

Drawing on data obtained via automated data scraping processes from thousands of …

Creating A System For All Parents: Rethinking Procedural And Evidentiary Rules In Proceedings With Self-Represented Litigants, Cassandra Richards

Dalhousie Law Journal

Through qualitative interviews undertaken with ten judges at the Superior Court of Québec, this study considers the procedural and evidentiary challenges faced by self-represented litigants in family law matters. Subsequently, this paper offers solutions to the problems identified. The goal of this paper is to provide legal participants with concrete techniques to facilitate proceedings with SRLs that uphold their duty of impartiality and duty of assistance. While this article will likely be useful for judges who engage with SRLs daily, it will also be of interest to those working on issues relating to access to justice, SRLs, as well as …

The Scope Of Canadian Defamation Injunctions, Hilary Young

Dalhousie Law Journal

Free speech is engaged when courts enjoin defamatory or allegedly defamatory speech on an interlocutory or permanent basis. This paper explores the justifiable scope of defamation injunctions and compares that to what courts do.

The study reveals that Canadian defamation injunctions regularly go far beyond what is justifiable. For example, 16% of defamation injunctions involved orders not to speak about the plaintiff at all, which is overbroad since that includes true and otherwise lawful speech. Other orders prohibit saying disparaging (as opposed to unlawful) things—again overbroad. Orders not to defame may be vague because it is unclear whether, in context, …

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 …

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 …

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 …

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 …

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, …

Duets, Not Solos: The Mclachlin Court's Co-Authorship Legacy, Peter Mccormick

Dalhousie Law Journal

This article explores the recentphenomenon of the formal co-authorship of Supreme Court decisions. It begins with a short history of the practice, primarily in the closing years of the Lamer Court but expanding steadily under McLachlin. A closer investigation reveals two critically important dimensions: first, the practice is skewed toward the Court's more important decisions (measured in terms of subject matter legal complexity, interveners, and subsequent citation); and second, its diffusion across the Court's membership refutes the possibility that it simply reinforces persisting cleavages. This new practice represents a more overtly collegial format directed to the Court's more significant decisions. …

Nom De Plume: Who Writes The Supreme Court's "By The Court" Judgments?, Peter Mccormick

Dalhousie Law Journal

For several dozen of its major decisions, the Supreme Court in recent decades has adopted an unusual judgment style-the unanimous and anonymous "By the Court" format. Unlike judgments attributed to specific justices, "By the Court" presents an unusual and impersonal institutionalist face. But what is happening behind the fagade? Are these deeply collegial products with the actual drafting divided between some (or most, or all) of the justices? Is it "business as usual" which for major judgments involves rotation between the senior judges? Or is it simply a pseudonym for the Chief Justice writing alone in an unusually emphatic way? …

A Comment On "No Comment": The Sub Judice Rule And The Accountability Of Public Officials Inthe 21st Century, Lorne Sossin, Valerie Crystal

Dalhousie Law Journal

The sub judice rule is a rule of court, a statutory rule, a Parliamentary convention and a practice that has developed in the interaction between media and public officials. At its most basic, the sub judice rule prohibits the publication of statements which may prejudice court proceedings. This study examines the nature, rationale and scope ofthe sub judice rule. The authors provide an account of the current state of the rule, and highlight areas where more clarity would be desirable. The authors propose a more coherent approach to the sub jud ice rule, more clearly rooted in the concern over …

Searching And Seizing After 9/11: Developing And Applying Empirical Methodology To Measure Judicial Output Inthe Supreme Court's Section 8 Jurisprudence, Richard Jochelson, Michael Weinrath, Melaine Janelle Murchison

Dalhousie Law Journal

In 2005, Margit Cohn and Mordechai Kremnitzer created a multidimensional model to measure judicial discourse inherent in the decision making of constitutional courts. Their model set out multiple indicia bywhich to measure whether the court acted within proper constitutional constraints in order to determine the extent to which a court rendered a decision that was activist or restrained. This study attempts to operationalize that model. We use this model to analyze changes in interpretation of search and seizure law under section 8 after the enactment of the Canadian Charter of Rights and Freedoms at the Supreme Court of Canada. The …

Inherent Jurisdiction And Its Application By Nova Scotiacourts: Metaphysical, Historical Or Pragmatic?, William H. Charles

Dalhousie Law Journal

The author explores the concept of inherent jurisdiction in the context of its use and application by the courts of Nova Scotia. A general in-depth discussion ofthe nature and source(s) of the concept is followed by an examination of three recent Court of Appeal decisions in an effort to determine that court's understanding of inherent jurisdiction. The Court of Appeal's understanding and sense of the concept is then contrasted with its use and application by the trial courts of Nova Scotia over a period of 150 years. The approach of the two levels of court to inherent jurisdiction is compared …

Structures Of Judgment: How The Modern Supreme Court Of Canada Organizes Its Reasons, Peter Mccormick

Dalhousie Law Journal

In recent decades, the Supreme Court of Canada has developed a distinctive and unusual way of organizing its reasons for judgment; concomitantly, it has developed a comparably distinctive style for its minority reasons as well. This article describes this new decision format and the elements into which it is typically divided, and compares it with the practices of appeal courts in other common law countries. It concludes first by theorizing about the purpose and the functions of decision formats and format changes, and then by defending the current Canadian style.

Promissory Estoppel, Proprietary Estoppel And Constructive Trust In Canada: "What's In A Name?", Jane Matthews Glenn

Dalhousie Law Journal

This paper explores the similarities and differences between promissory estoppel, proprietary estoppel and the remedial constructive trust. Although the three are quite different at one level, as the first is a defence to an action, the second a cause of action as well as a defence, and the third simply a remedy to a cause of action, a closer examination reveals certain underlying similarities. The comparison highlights proprietary estoppel, an oft-overlooked concept in Canada, but which is comparable to promissory estoppel at the substantive level and the constructive trust at the remedial level.

Habermas, Legal Legitimacy, And Creative Cost Awards In Recent Canadian Jurisprudence, Michael Fenrick

Dalhousie Law Journal

Access to justice continues to be a live issue in Canadian courtrooms. While state-sponsored initiatives that promote access continue to flounder in Canada or in some cases, are cancelled altogether, the pressure is mounting to find creative solutions that facilitate greater participation in formal dispute resolution processes. The price of failing in this regard is very high. To truly flourish, both social cohesion and individual liberties require a more participatory and inclusive legal system than the one that currently precludes all but the wealthiest from accessing our courts. Drawing on the legal philosophy of Jargen Habermas, the author examines access …

Tribunals Imitating Courts - Foolish Flattery Or Sound Policy?, David Mullan

Dalhousie Law Journal

In his 2004 Horace E Read Memorial Lecture, David Mullan assesses the impact of the "due process explosion." To what extent has the evolution of Canadian law (both statutory and common) in the domain of procedural fairness been responsible for the phenomenon of excessive judicialization of the administrative process? Has the increase in the number of decision-makers subject to the obligation of procedural fairness and the growth in the parallels between tribunal and court processes affected adversely the interests of the administrative justice system and the public that it is meant to serve? The author suggests that there is a …

Foreign Judgments At Common Law: Rethinking The Enforcement Rules, Tanya J. Monestier

Dalhousie Law Journal

England and Canada have adopted divergent approaches to the enforcement of foreign civil and commercial judgments. An English court will only enforce a foreign judgment where the defendant submitted to the junsdiction of the foreign court, or was present in the foreign jurisdiction when served with process. This position. while protecting domestic defendants, is outdated and does little to further the objectives underpinning judgment enforcement- Canadian courts, by contrast, have been far more liberal than their English counterparts, enforcing foreign judgments in cases where there is a "real and substantial connection" between the dispute and the judgment forum. While this …

After The Revolution: Being Pragmatic And Functional In Canada's Trial Courts And Courts Of Appeal, William Lahey, Diana Ginn

Dalhousie Law Journal

In a 1998 decision, Pushpanathan v Canada, the Supreme Court of Canada synthesized and revised the previous jurisprudence on "pragmatic and functional analysis" - the approach used since the late 1980's to determine the appropriate standard of deference in substantive review of administrative decision making. The next year, in Baker v. Canada, the Court expanded the reach of the pragmatic and functional analysis by applying it to the exercise of administrative discretion. This paper examines approximately 275 lower court decisions to determine how courts across Canada are responding to and implementing the doctrinal change initiated by the Supreme Court. Patterns …

Removing A "Section 96" Judge: An Historical Case Study, Barry Cahill

Dalhousie Law Journal

The creation of the Canadian Judicial Council in 1971 and the gradual disappearance of county and district court judges into the superior court judiciary filled a lacuna in the Constitution Act, 1867. The tenure of county court judges was less secure than that of superior court judges, which was constitutionally entrenched and protected. The Judges Act, passed originally to provide for the removal of county court judges, articulated a mechanism which was extended to superior court judges at about the same time as county and district courts were beginning to disappear from the Canadian judicial scene. The lack of such …

Reputational Review I: Expertise, Bias And Delay, Robert E. Hawkins

Dalhousie Law Journal

Expertise, bias and delay arguments are shifting the focus of judicial review from the legality of administrative decisions to the reputation of administrative decision- makers. These grounds measure the skill, objectivity and efficiency characteristics that define administrators' reputations. They make it possible for courts to consider these reputations, even if only by way of unarticulated judicial notice, when deciding judicial review applications. After setting out the theory of expertise, bias and delay implicit in recent Supreme Court of Canada decisions, the author concludes that courts must use less impressionistic measures in judging these concepts, lawyers must present more concrete reputational …

Pre-Natal Fictions And Post-Partum Actions, Ian R. Kerr

Dalhousie Law Journal

The author examines the theory of liability for pre-natal injuries adopted by Canadian courts. This theory has recently been adopted by the New Brunswick Court of Appeal in an unprecedented decision that allows an infant to sue its own mother for alleged negligent conduct that occurred prior to the child's birth. The author argues that, despite contrary claims, the present theory of liability relies on the judicial use of a legal fiction. He maintains that this fiction has been stretched beyond its theoretical limits and concludes that courts are no longer justified in adopting the present theory of liability in …

Framing The Issues For Cameras In The Courtrooms: Redefining Judicial Dignity And Decorum, A Wayne Mackay

Dalhousie Law Journal

This article examines the role of s. 2(b) of the Charter of Rights in determining the role of cameras in Canadian courtrooms. The discussions reveal that arguments in opposition to cameras are largely unfounded and in contradiction to the freedom of expression guarantee. The denial of the right is in reality based on judges' and lawyers' fear of loss of control of the courtroom environment. Cameras should only be banned from courtrooms as part of a total publication ban, and then only after a careful s. 1 analysis

The Judicial Independence Of Canadian Forces General Court Martials: An Analysis Of The Supreme Court Of Canada Judgment In R. V. Genereux, Michael Doi

Dalhousie Law Journal

In R. v. Genereux, the Supreme Court of Canada reviewed the structure of a Canadian Forces General Court Martial and found it to incorporate features which reasonably called its judicial independence into question. This was held to violate the rights of accused military personnel to a fair trial under sub-section 11(d) of the Canadian Charter of Rights and Freedoms. In arriving at this conclusion, the Supreme Court of Canada questioned the legitimacy of Canadian Forces provisions which structure a judicial process governing service personnel as separate and distinct members from the rest of the general population. The Court also reviewed …

Change Of Position And Estoppel As Defences To An 'Action For Money Paid By Mistake, Karl J. Dore

Dalhousie Law Journal

The recent decision in RBC Dominion Securities Inc.v. Dawson' raises some interesting questions regarding the defences available to a claim in restitution for the recovery of money paid by mistake. At issue were the, defences of change of position and estoppel. Both defences are recognized in Canadian law, but questions remain regarding their limits and their relationship.