Law Commons^™

A Human Rights And Legal Analysis Of The Understanding Our Roots Report, Naiomi Metallic, Cheryl Simon

Reports & Public Policy Documents

In October 2023, the University released Understanding Our Roots - Nstikuk tan wtapeksikw Report written by the Task Force on Settler Misappropriation of Indigenous Identity. The Report recommends the creation of a Standing Committee who would verify claims to Indigenous identity by students, faculty and staff seeking to benefit from any opportunity at the University that prioritizes access for Indigenous peoples, as well as investigate and recommend sanction in cases of suspected academic fraud whereby an individual assumes an Indigenous identity. The Report does not address or respond to potential legal issues and rights violations arising from its recommendation. To …

Debt-For-Climate Swaps And Illicit Financial Flows: A Call For Caution In Designing Climate Finance Infrastructures, Olabisi D. Akinkugbe, Morris K. Odeh

Articles, Book Chapters, & Popular Press

Ahead of COP28, there have been widespread calls for the adoption of 'debt-for nature' and 'debt-for-climate' swaps as an alternative climate finance system to address funding gaps in developing countries. Typically, these swaps involve a debtor country repurchasing its debt securities at substantial discounts or converting official bilateral debt into environmental assets, which enables more fiscal savings to be redirected toward conservation objectives. Unlike most climate finance instruments, these debt swaps avoid burdening countries in the Global South with additional unsustainable debt, thus allowing for a more effective response to the climate crisis without sacrificing spending on other development projects. …

Big Oil Liability In Canada: Lessons From The Us And The Netherlands, David W-L Wu

Dalhousie Law Journal

The number of nuisance and negligence tort claims in the US against “Big Oil” companies have grown significantly in the last five years. The Netherlands case of Milieudefensie et al v Royal Dutch Shell represents the first major success of such a claim internationally. While the US cases and Milieudefensie demonstrate starkly different approaches as to how to seek accountability from Big Oil for climate change harms, the increasing judicial engagement on these issues may mean the time is right for similar lawsuits in Canada. Three Canadian common law causes of action are examined: nuisance, negligence, and unjust enrichment. Defences …

Mixing Mathematics And Morality: Precarity And Moral Hazard In Employment Insurance And Personal Insolvency Law, Anna J. Lund

Dalhousie Law Journal

This article examines how financially precarious Canadians face particular challenges to accessing the benefits of employment insurance and personal insolvency because these two systems include features designed to guard against moral hazard. However, these design features do not adequately account for how an increasing number of Canadians are precariously employed and precariously indebted. This article synthesizes the research on precarious employment in Canada, and uses it to suggest how one might conceptualize precarious indebtedness. It then traces how the Canadian employment insurance and personal insolvency systems treat characteristics of financial precarity as evidence of misconduct. As a result, precariously employed …

Law’S Sexual Infections, Kyle Kirkup

Dalhousie Law Journal

In 2019, the House of Commons Standing Committee on Justice and Human Rights published its study on the criminalization of HIV non-disclosure in Canada. The report recommended removing HIV non-disclosure from sexual assault laws in Canada. This constituted a welcome development for many HIV advocates. Yet other recommendations proved more controversial. In order to counter the exceptional targeting of HIV, the Committee proposed an offence for the non disclosure of all infectious diseases. This article uses the proposal to develop three arguments. First, the idea of creating an offence for all infectious diseases finds its origins in criminal laws dating …

Permanent Injunctions In Defamation Actions, Hilary Young

Dalhousie Law Journal

Permanent injunctions prohibiting defamatory speech are increasingly sought and ordered following a finding of liability. This may seem unproblematic since a court will have found the particular speech to be unlawful—defamatory and likely false. However, there are good reasons to be cautious in permanently enjoining defamatory speech. This article shows that courts have recognized a test for permanent injunctions in defamation cases based on a misinterpretation of the case law—a test which is inconsistent with first principles of equitable relief. It then proposes a number of guidelines and principles for permanent injunctive relief in defamation actions. Most proposals relate to …

A Historical Account Of The Orderly Payment Of Debts Act Reference: Limiting Provincial Efforts To Protect Insolvent Debtors, Thomas Gw Telfer, Virginia Torrie

Dalhousie Law Journal

This paper analyzes the history of the Alberta Orderly Payment of Debts Act and the constitutional controversy that followed. The legislation sought to protect debtors by imposing restrictions on creditors. In 1960, the Supreme Court of Canada in Reference re Validity of Orderly Payment of Debts Act, 1959 (Alberta) ruled that the legislation was ultra vires on the basis that it interfered with the federal bankruptcy and insolvency power. The Orderly Payment of Debts Act reference is the capstone in a trilogy of cases in which provincial legislation was invalidated for encroaching upon the federal bankruptcy and insolvency power. The …

The Lawyer’S Professional Duty To Encourage Respect For—And To Improve—The Administration Of Justice: Lessons From Failures By Attorneys General, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

The lawyer’s duty to encourage respect for the administration of justice remains largely amorphous and abstract. In this article, I draw lessons about this duty from historical instances in which Attorneys General inappropriately criticized judges. Not only are Attorneys General some of the highest-profile lawyers in the country, but they also face unique tensions and pressures that bring their duties as lawyers into stark relief. I focus on the two instances where law societies sought to discipline Attorneys General for such criticism of judges, as well as a more recent instance in which no discipline proceedings were pursued. I also …

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

Comparative Tax Law Guide, Kim Brooks

OER Texts

This extended bibliography is designed to support comparative tax law study by students, policy-makers, and tax practitioners. Studying comparative tax law is pure joy. And in addition to that, it enables you to:

• more deeply understand your own tax system and context;
• learn about another country’s system and context;
• draw general conclusions about tax law;
• press for or support tax law change;
• facilitate tax law harmonization or coordination among jurisdictions;
• delve into the role of tax in the spread of higher-order values like fairness, equality, transparency, or privacy;
• explain why a country’s tax laws are the way they are; and …

Lost: Heritage Stock. The Heritage Property Act And Heritage Conservation In Downtown Halifax, Nova Scotia, Eliza Richardson

Dalhousie Law Journal

This article considers heritage conservation in Halifax, examining the Heritage Property Act and its implementation. As one of the oldest cities in Canada, Halifax, Nova Scotia was graced with an abundance of built heritage. However, historic properties have been disappearing at an alarming rate, with 41 per cent of potential heritage buildings in downtown Halifax, Nova Scotia having been demolished since 2009. This article argues that the current approach to heritage conservation in Halifax is nominally successful but consistently falls short of the spirit in which it was enacted. The Act performs well in specific situations, namely where the owners …

Are The Imposed Principles Standard? A Review Of Imposing Standards: The North-South Dimension To Global Tax Politics By Martin Hearson, Opeyemi Bello

Dalhousie Law Journal

The publication of Martin Hearson’s book, Imposing Standards: The North-South Dimension to Global Tax Politics, coincided with heated international discussions of the most substantial policy proposals in the field of international taxation in the last century.1 Hearson’s work provides insights on how the developed countries exerted control over the negotiations of the double taxation agreement (DTA) regime, which is the basis of the current international taxation framework. It explains how the negotiations resulted in a framework that works well for the developed countries, but does not substantially address the tax revenue needs of the developing countries. The publication of the …

The Future Of Data Protection Enforcement In Canada: Lessons From The Gdpr, Guilda Rostama, Teresa Scassa

Canadian Journal of Law and Technology

Imagine a not-too-distant scenario in which a private sector organization in Canada is investigated by the Privacy Commissioner of Canada jointly with the Commissioners of Quebec, British Columbia (‘‘BC”), and Alberta in relation to complaints that it shared massive quantities of personal data with third parties contrary to its stated practices in its privacy policies. Imagine also that each of the commissioners is empowered under newly amended data protection legislation to issue substantial Administrative Monetary Penalties (‘‘AMPs”). If each of the commissioners finds that its respective laws were breached, should the organization be subject to four different AMPs, or just …

Slouching Toward Regulation: Assessing Bill 88 As A Solution For Workplace Surveillance Harms, Danielle E. Thompson, Adam Molnar

Canadian Journal of Law and Technology

Employee monitoring applications (‘‘EMAs”) are proliferating in Canada and provide employers with sophisticated surveillance tools for the monitoring of workers (e.g., on-device video surveillance, browser activity, and email monitoring). In response to concerns about these increasingly invasive surveillance practices, the Government of Ontario passed Bill 88, the Working for Workers Act, 2022, which requires all employers with 25 or more workers to have a written policy stating whether and how they electronically monitor their employees. Bill 88 marks a more explict attempt to regulate workplace surveillance in a modern digital context in Canada; however; however, an analysis of the Bill’s …

When Your Boss Is An Algorithm: Preserving Canadian Employment Standards In The Digital Economy, Fife Ogunde

Canadian Journal of Law and Technology

The platform or ‘‘gig” economy is a rapidly growing economy in Canada. Between 2005 and 2016, the share of gig workers among all workers in Canada rose from 5.5% to 8.2%. These include independent contractors, select freelancers and platform workers. In 2018, 28% of Canadians aged 18 and older reported making money through online platforms. Research by Payments Canada in 2021 showed gig workers as representing more than one in 10 Canadian adults with more than one in three Canadian businesses employing gig workers. As the share of platform workers in the economy has grown, so has the discussion regarding …

The Challenge Designing Intermediary Liability Laws, Emily Laidlaw

Canadian Journal of Law and Technology

The ideal framework for intermediary liability has vexed policymakers since the internet’s commercialization. The quest has taken on a frenzied pace in recent years with intense scrutiny of who they are, what they do and what they should be responsible for. Over the years a theme has emerged from my discussions about intermediaries, and its subset platforms, and it prompts me to explore it as the focus of this article. My question is simple: why is it so difficult for law and policymakers to agree on a regulatory framework?

This article tackles two parts of the regulatory challenge that are …

The Need For Cyber Resilience Of Space Assets: Law And Policy Considerations Of Ensuring Cybersecurity In Outer Space, Daniella Febbraro

Canadian Journal of Law and Technology

In 2018, NASA’s Jet Propulsion Laboratory was the subject of a data breach where over 500 megabytes of data from a major mission system was stolen by hackers. This attack affected NASA’s Deep Space Network, prompting the United States Johnson Space Center to disconnect the International Space Station from the affected gateway due to fears that mission systems could become compromised. NASA has acknowledged that its vast online presence, which includes thousands of publicly accessible datasets, offers a large potential target for cybercriminals. The 2018 incident was one of many, with NASA experiencing more than 6000 cyberattacks from 2017-2021 alone. …

Masthead & Table Of Contents

Dalhousie Law Journal

No abstract provided.

Caesar’S Gambit: Coherence, Justification Of Legal Rules, And The Duty Test: Towards An Interactional Theory Of Government Liability For Negligence In Disaster Management, Irehobhude O. Iyioha

Dalhousie Law Journal

This article examines barriers posed by the duty of care test for government liability for negligence in disaster management. It argues that various aspects of the test raise concerns about coherence, legitimacy of judicial decision-making, and ultimately how we justify liability in tort law. In examining the coherence of the duty test through multiple prisms, including through theoretical justifications for tort principles, this article contends that the duty test, in its framing and interpretations, fails to meet the formal and substantive demands of coherence, correctness and legitimacy. Arguing that justificatory theories offer necessary theoretical lenses through which to understand, critique, …

Entangling Liberty And Equality: Critical Disability Studies, Law And Resisting Psychiatric Detention, Tess Sheldon

Dalhousie Law Journal

The Charter claims of persons with disabilities often sit precariously between sections 7 and 15. Psychiatric detention, including that pursuant to provincial mental health legislation, restricts liberty and security of the person based on the enumerated ground of disability. This project imagines opportunities to challenge state interventions that are linked to prohibited grounds of discrimination. It is inspired by Justice L’Heureux-Dubé’s “interpretive lens of equality” that understands that all Charter rights “strengthen and support each other.” The equality principle should wield significant influence on the interpretation of the protections offered by section 7. Such an approach to sections 7 and …

Introduction, Kim Brooks, Jamie Irvine

Dalhousie Law Journal

The dream for the Dalhousie Law Journal, included in the Foreword of the Journal’s first issue in 1973, was typically Dalhousie-modest: to have a “long and reasonably useful career.”1 As we celebrate our 50th anniversary, it’s clear that we have delivered on duration and over-delivered on purpose.

Beneficial Interests Under The Chattels Real Act, Gregory French

Dalhousie Law Journal

This paper examines the Chattels Real Act of Newfoundland and Labrador and the strict treatment of property interests thereunder. Historical treatment of property interests under the Act had been pragmatic and flexible, however later jurisprudence took a stricter interpretation and restricted the interpretation of beneficial interest under the Act. The author suggests that a review of first principles and jurisprudence supports a broader interpretation of property interests under the Act, which should be followed for the better administration of justice and practical expectations of the people of Newfoundland and Labrador.

Cet article examine la Chattels Real Act de Terre-Neuve-et-Labrador et …

A Legal History Of The Regulation Of Assault-Style Rifles In Canada, R. Blake Brown

Dalhousie Law Journal

This article provides the first legal history of the regulation of “assault-style” weapons in Canada. A contentious part of Canada’s gun control regime is the firearms classification system that divides guns into non-restricted, restricted, and prohibited firearms. The sale of semi-automatic firearms, often based on military designs that could be quickly fired and reloaded, sparked concerns since the 1970s, particularly after mass shooting events. Canada adopted a classification regime relying on both statutory provisions that used technical details of firearms and Orders-in-Council to name models of firearms as restricted or prohibited weapons. Critics warned that this system allowed private citizens …

The Borders Of Responsibility, The Democratic Intellect, And Other Elephants In The Room, Liam Mchugh-Russell

Dalhousie Law Journal

What can André Zucca’s photos, taken during the Nazi occupation of Paris, tell us about the law to come or the challenges it will pose to lawyers, legal scholars and legal educators? In short: Zucca’s photos serve not just as a cipher for a past in need of reckoning but as a caution about abiding a present in which crisis is always just out of frame. In the throes of slow-motion apocalypse, what should an intellectual be? And for whom? In 80 years, when someone is rifling through an attic shoebox of our history, will we appear like the subjects …

Fifty Years Of Taking Exception To Human Exceptionalism: The Feminist-Inspired Theoretical Diversification Of Animal Law Amidst Enduring Themes, Maneesha Deckha

Dalhousie Law Journal

In this article, I attend to the scholarly interventions over the last fifty years that engage with the question of what general subjectivity or protective model the law should apply to animals to combat anthropocentrism and effect widespread positive change for animals. I call this field “animal rights law.” The article demonstrates the theoretical diversity and related richness of this scholarship, making three contributions. Most notably, it highlights the prominence of feminist theory to the development of animal rights law. This more recent feminist-inspired work has attempted to bypass the personhood-property debate from earlier decades through theorizing alternative or supplementary …

Toward A Canadian Right To Repair: Opportunities And Challenges, Anthony D. Rosborough

Articles, Book Chapters, & Popular Press

This Article draws a picture of the past, present, and future of the right to repair in Canada. It looks to early successes toward automotive right to repair, challenges faced in proposing consumer protection reforms in Ontario and Quebec, and the utility of a proposed copyright “Technological Protection Measure (TPM) exception” allowing circumvention for repair purposes. In light of right to repair priorities identified by Canada’s current federal government, the Article identifies a selection of reforms that could achieve these goals. Such reforms include creating regulations under the Copyright Act governing the use and implementation of TPMs, passing an exception …

Book Review Of John Borrows & Kent Mcneil, Eds, Voicing Identity: Cultural Appropriation And Indigenous Issues (Toronto: University Of Toronto Press, 2022), 311pp., Charlotte Connolly

Dalhousie Journal of Legal Studies

No abstract provided.

The Next Revolution? Negligence Law For The 21st Century, Allan C. Hutchinson

Dalhousie Law Journal

Donoghue’s neighbour is still the defining concept of Canadian tort law. Indeed, the whole history of modern negligence law can be reasonably understood as a concerted judicial effort to adapt and accommodate that principle to changing social, commercial and legal conditions. Now, 90 years later, it is perhaps time to recommend another revolution in negligence law. The Donoghue-inspired doctrine has done sterling work, but it is now weighed down with a bewildering range of conditions, clarifications and complications. When the duty analysis is complemented by other related requirements of causation and remoteness, the law of negligence has become something of …

Toward Justice Epidemiology: Outlining An Approach For Person-Centred Access To Justice, Andrew Pilliar

Dalhousie Law Journal

The COVID-19 pandemic has brought widespread public attention to the fields of epidemiology and public health. These fields share a common commitment to the systematic study of disease across populations, with goals of better understanding, preventing, and treating adverse health events. They are empirical, evidence-based, and person-centred. This paper draws on the histories, norms, and methodologies of public health and epidemiology to construct a novel field of study: justice epidemiology. In recent years, a growing body of unmet legal needs research in Canada and elsewhere has demonstrated that justiciable events are likely ubiquitous, but also that these events tend to …

Fifty Years Of Canadian Legal History, Jim Phillips, Philip Girard

Dalhousie Law Journal

Fifty years ago Canadian legal history was very much in its infancy. What little had been published was in equal measure antiquarian, descriptive, and hagiographic. The field has undergone a profound transformation in the last half-century. We now know a great deal more about all aspects of our legal past, about our institutions, our legal personnel, and the substantive law. The field has also become much more sophisticated, concerned not only with internal legal developments but increasingly with the relationships between law and other aspects of Canadian history. Social history, labour history, women’s history, economic, intellectual, cultural and political history, …