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Articles 31 - 60 of 83
Full-Text Articles in Law
The Origins Of A Coming Crisis: Renewal Of The Churchill Falls Contract, James P. Feehan, Melvin Baker
The Origins Of A Coming Crisis: Renewal Of The Churchill Falls Contract, James P. Feehan, Melvin Baker
Dalhousie Law Journal
The 1969 Churchill Falls contract between Hydro-Quebec and the Churchill Falls Labrador Corporation has been the subject of political controversy. It has also been challenged in the courts, with appeals reaching to the Supreme Court of Canada. Yet, despite the scrutiny of those court cases, the political rhetoric, and the literature that has been spawned by this matter, an extraordinary element of that contract remains remarkably obscure. It is the contract's renewal clause. At the expiry of the contract's forty-four-year term in 2016, that clause requires an automatic renewal for twenty-five additional years at a fixed nominal price that is …
Conflict Of Interest, Duress And Unconscionability In Quebec Civil Law: Comment On "The Origins Of A Coming Crisis: Renewal Of The'churchill Falls Contract", Sarah P. Bradley
Conflict Of Interest, Duress And Unconscionability In Quebec Civil Law: Comment On "The Origins Of A Coming Crisis: Renewal Of The'churchill Falls Contract", Sarah P. Bradley
Dalhousie Law Journal
As Professor James Feehan and archivist-historian Melvin Baker describe the circumstances in which the fateful renewal provision of the 1969 Churchill Falls hydro contract was negotiated, they suggest that the legal doctrines of conflict of interest or economic duress might offer a basis upon which the contract, or perhaps the renewal provision, could be impugned. In addition to interesting historical insights, their analysis offers the intriguing possibility that the government of Newfoundland may yet succeed in its long-standing battle to rid itself of its obligations under the grossly disadvantageous Churchill Falls contract.
Promissory Estoppel, Proprietary Estoppel And Constructive Trust In Canada: "What's In A Name?", Jane Matthews Glenn
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
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 …
Reforming Testamentary Undue Influence In Canadian And English Law, Fiona R. Burns
Reforming Testamentary Undue Influence In Canadian And English Law, Fiona R. Burns
Dalhousie Law Journal
The traditional doctrine of testamentary undue influence developed in nineteenth century England. Its utility, however, is limited since the doctrine requires the person alleging undue influence to provide direct proof of coercion according to a high standard. In England the doctrine has remained static and there have been calls for reform. In Canada, some courts have ceased to apply the traditional doctrine so that today there is no one consistent and coherent doctrine of testamentary undue influence. This article explores two possible reforms of the doctrine both of which are evident in recent Canadian case law: a presumption of testamentary …
The Impact Of "Chartervalues" And Campbell V. Jones: Is It Now Easier To Establish Qualified Privilege Against Defamation?, Geoffrey Duckworth
The Impact Of "Chartervalues" And Campbell V. Jones: Is It Now Easier To Establish Qualified Privilege Against Defamation?, Geoffrey Duckworth
Dalhousie Law Journal
The purpose of this case comment is to impel a discourse on whether Campbell v. Jones' has "loosened the test" on qualified privilege. In the aftermath of the Court ofAppeal decision, it might be tempting to suggest that Campbell v. Jones means that the defence of qualified privilege is being re-fabricated in light of the advent of the Charter of Rights and Freedoms, in order to take an expanded account of "Charter values" such as freedom of expression. This case comment adopts the contrary view, and asserts that what Campbell has really done is clarify exactly which type of extraordinary …
Damages For Mental Distress And Other Intangible Loss In A Commercial Context, Shannon O'Byrne
Damages For Mental Distress And Other Intangible Loss In A Commercial Context, Shannon O'Byrne
Dalhousie Law Journal
As a general rule, contracts law does not permit an award of general damages for mental distress or other intangible loss. There are several rationales for this, including: plaintiffs are to bear their disappointment or upset with mental fortitude; without the rule, courts would be awash in litigation since every breach of contract brings with it some degree of emotional distress; without the rule, plaintiffs may fabricate or exaggerate the degree of their upset; and the rule simply reflects the lack of foreseeability of such loss under Hadley v. Baxendale. Notwithstanding the general rule, courts have awarded mental distress in …
The Dartmouth Schools Question And The Supreme Court Of Nova Scotia, Robert Nicholas Bérard
The Dartmouth Schools Question And The Supreme Court Of Nova Scotia, Robert Nicholas Bérard
Dalhousie Law Journal
Scholars have often demonstrated that courts in Canada have long been responsive to the political, social, cultural and economic contexts in which they operate. An illustration of the ways in which the Supreme Court of Nova Scotia embodied this role can be found in the Court's handling of a dispute between the Town of Dartmouth and the Roman Catholic Episcopal Corporation of Halifax, often referred to as the "Dartmouth Schools Question" in 1939 and 1940 The case concerned the attempt of the Town of Dartmouth, alone among municipalities in Nova Scotia, to collect local taxes on property used for Catholic …
Deciding In The Heat Of The Constitutional Moment Constitutional Meaning And Change In The Quebec Secession Reference, Jonathon W. Penney
Deciding In The Heat Of The Constitutional Moment Constitutional Meaning And Change In The Quebec Secession Reference, Jonathon W. Penney
Dalhousie Law Journal
The Quebec Secession Reference addressed divisive issues with far-reaching implications for the Canadian constitutional order. Recently, commentators have called for a less traditional and more systematic approach to understanding the decision, and its place in the broader scheme of Canadian constitutionalism. Accordingly, this paper challenges the predominant narrative concerning the Quebec Secession Reference, which is largely judge-centred and shows little regard for the important historical, political, and popular forces so crucial to understanding the decision. The challenge is mounted through the work of Yale constitutional scholar Bruce Ackerman and his theory of constitutional moments. This paper uses Ackerman's criteria of …
Tribunals Imitating Courts - Foolish Flattery Or Sound Policy?, David Mullan
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 …
Courts And Constitutional Usurpers Some Lessons From Fiji, Venkat Iyer
Courts And Constitutional Usurpers Some Lessons From Fiji, Venkat Iyer
Dalhousie Law Journal
Much concern and disappointment has been expressed by jurists and human rights campaigners over the inaction ofnational judiciaries in reversing the effects of coups d'etat and other acts which result in the unconstitutional overthrow of democratically constituted governments Against this backdrop, the decisive steps taken b) the superior courts of Fiji to nullify the attempted destabilisation of that country's elected government in May 2000 was a trail-blazing development The author analyses the jurisprudence in this area and explains the implications of the Fijian judgments.
Amending Authors And Constitutional Discourse, Barbara Darby
Amending Authors And Constitutional Discourse, Barbara Darby
Dalhousie Law Journal
The author surveys various theories related to the concept of constitutional amendment, reviewing the importance of the notion of authorship to the amending process, and the related theories about constitutional legitimacy and judicial activism. In seeking an alternative conceptualization of authorship that is applicable to constitutional amendment, she reviews Michel Foucault's essay on authorship, and specifically his notion of the transdiscursive author who originates a "return" to an original text, which she presents as a useful context in which to read the constitutional amendment process. Constitutional discourse, using Foucault's approach to discourse, occupies a significant cultural and social position. She …
After The Revolution: Being Pragmatic And Functional In Canada's Trial Courts And Courts Of Appeal, William Lahey, Diana Ginn
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 …
The Law Of Options, Keith Evans
The Law Of Options, Keith Evans
Dalhousie Law Journal
Little attention is devoted to the law of options in major Canadian texts on contract law or in periodical literature. One might, therefore, assume that the law in this area is well settled and that few major cases come before the courts. However, a review of appellate decisions in Canada indicates significant judicial interest in the topic which would challenge those assumptions. In fact, appellate courts in various common law jurisdictions continue to struggle with many doctrinal issues related to this specialized type of contract. This article provides a comprehensive review of the law of options in Canada, and identifies …
The Legislature, The Executive And The Courts: The Delicate Balance Of Power Or Who Is Running This Country Anyway?, A Wayne Mackay
The Legislature, The Executive And The Courts: The Delicate Balance Of Power Or Who Is Running This Country Anyway?, A Wayne Mackay
Dalhousie Law Journal
The expanding role of Canadian courts since the introduction of the Charter has prompted critics to decry what they see as excessive and "anti-democratic" judicial activism. The author addresses such criticisms, responding, in particular, to the arguments of Ted Morton and Rainer Knopff. The article critiques the basic elements of Morton/Knopf's thesis: that activist courts are anti-democratic, excessively political, and engaging in illegitimate law-making. Rejecting the claim that Canada's judiciary is a less democratic state institution, the author notes the powerful law and policy-making role performed by the federal cabinet-for practical purposes, an unelected body. The author endorses the dialogue …
The Institutional And Substantive Effects Of The Human Rights Act In The United Kingdom, Christopher D. Jenkins
The Institutional And Substantive Effects Of The Human Rights Act In The United Kingdom, Christopher D. Jenkins
Dalhousie Law Journal
This article reviews the institutional and substantive impact that the Human Rights Act has on English law through its incorporation of the European Convention on Human Rights. Under the Act, higher courts can now move beyond a formalistic method of judicial review and substantively evaluate legislation in light of the Convention. The judiciary can accordingly issue declarations that statutes are incompatible with the Convention which, although not invalidating the act in question, will bring considerable political pressure to bear on Parliament to ensure compliance. The Act further directs courts to give special regard to the decisions of the European Court …
Debtor In Possession Financing: The Jursidiction Of Canadian Courts To Grant Superpriority Financing In Ccaa Applications, Janis Sarra
Dalhousie Law Journal
Restructuring of insolvent corporations can be an effective means of a voiding the social and economic consequences of firm failure. Key to successful restructuring is financing (called DIP financing) in the interim period during which the corporation is attempting to develop a viable business plan that is acceptable to stakeholders. Canadian courts have exercised their inherent jurisdiction to grantsuch financing. A recent case before the Supreme Court of Canada settled. However, there continue to be challenges to the courts'jurisdiction. This article suggests that the degree of uncertainty created by the courts' granting of DIP financing has been exaggerated and that …
Getting Their Feet Wet: The Supreme Court And The Practical Implementation Of Treaty Rights In The Marshall Case, Phillip Saunders
Getting Their Feet Wet: The Supreme Court And The Practical Implementation Of Treaty Rights In The Marshall Case, Phillip Saunders
Dalhousie Law Journal
Judicial decisions which recognize aboriginal or treaty rights to natural resources inevitably lead on to a process of negotiation, as governments and aboriginal and other users of the resource define the access and management regimes which allow for practical implementation of the legal rights. Courts should be cognizant of the impact of their decisions on such negotiations, and provide adequate clarity and substantive guidance to negotiators. This article considers the decisions of the Supreme Court of Canada in the Marshall case from this perspective, and details the shortcomings which made the prospects for successful negotiations less favourable. The weaknesses in …
Removing A "Section 96" Judge: An Historical Case Study, Barry Cahill
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 …
The Course Of Law Cannot Be Stopped': The Aftermath Of The Cumberland Rebellion In The Civil Courts Of Nova Scotia, Jim Phillips, Ernest A. Clarke
The Course Of Law Cannot Be Stopped': The Aftermath Of The Cumberland Rebellion In The Civil Courts Of Nova Scotia, Jim Phillips, Ernest A. Clarke
Dalhousie Law Journal
This article examines a series of cases launched in the Nova Scotia courts following the Cumberland Rebellion of 1776. In these cases loyalists sued former rebels, including those granted amnesty by the authorities, for losses sustained during the rebellion. The article traces the history of the cases and places them in the context of post-rebellion government policy. It argues that such proceedings were without precedent and effectively took the place of official schemes of expropriation of rebel land and compensation to loyalists. It also suggests that the use of civil courts in this way prolonged and exacerbated the social and …
Collective Violence In Ferryland District, Newfoundland, 1788, Christopher English
Collective Violence In Ferryland District, Newfoundland, 1788, Christopher English
Dalhousie Law Journal
In September 1788 a court found 114 men guilty of riotous assembly in the district of Ferryland the previous winter. This event is remarkable for the number involved (45% of the adult male population of the district); for the number of charges (21% of all civil and criminal actions heard in the district's courts over the next 25 years); for the absence of damage to property; and for the severity of the sentences, which included loss of wages, flogging, transportation and banishment. These proceedings occurred in a community where *the majority (Irish planters, fishermen and apprentices) were socially distinct from …
No Dichotomies: Reflections On Equality Forafrican Canadians In R. V. R.D.S., April Burey
No Dichotomies: Reflections On Equality Forafrican Canadians In R. V. R.D.S., April Burey
Dalhousie Law Journal
The contrasts, in form and substance, were stark. In form, I was a black woman in a wheelchair, pleading before an all-white, able-bodied and almost all-male Supreme Court of Canada. The usually empty public galleries in the Ottawa courtroom were filled with people of colour, who had come from across the country to witness the hearing of this landmark case. On their entrance, the nine white judges, dressed in their staid, black robes made an almost audible gasp as they were met with this colourfully clad, intently silent band of people of colour.
Reputational Review I: Expertise, Bias And Delay, Robert E. Hawkins
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
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
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
A Confluence Of Authority And Critique, H Archibald Kaiser
A Confluence Of Authority And Critique, H Archibald Kaiser
Dalhousie Law Journal
Reading about murder in the news, seeing it portrayed on the longrunning British television series Inspector Morse, or pondering it as one digests Crime and Punishment are in many ways far preferable to studying, teaching or practising the law of homicide. After a few chapters, and particularly following my re-immersion into the cold substantive law of homicide which commences in chapter 3, one is certainly reminded that this is not a work to read as a pastime in "blissful circumstances". It is, nonetheless, a remarkably good book in terms of its breadth, authority and originality in approach and substance. It …
Sedition In Nova Scotia: R. V. Wilkie (1820) And The Incontestable Illegality Of Seditious Libel Before R. V. Howe (1835), Barry Cahill
Sedition In Nova Scotia: R. V. Wilkie (1820) And The Incontestable Illegality Of Seditious Libel Before R. V. Howe (1835), Barry Cahill
Dalhousie Law Journal
Given its primacy and exceptionality in the Nova Scotian context, Wilkie both exemplifies the judiciary's role in official repression, and instantiates the importance of what Wright calls "the ideological mechanisms of the criminal law" in prescribing the outer limits of legitimate political discourse. This paper examines the first known use by the government of Nova Scotia of the eighteenth-century, judicially-invented misdemeanour of seditious libel in order to silence and punish criticism of the ruling eite. As Nova Scotia had neither indigenous caselaw, nor statutory legislation to supplement and reinforce the common law offence-Upper Canada's SeditionAct (1804) was still in full …
Proportionality As A Guiding Principle In Young Offender Dispositions, Paul Riley
Proportionality As A Guiding Principle In Young Offender Dispositions, Paul Riley
Dalhousie Law Journal
Sentencing is traditionally regarded as one of the most difficult and challenging functions of the criminal justice system. In arriving at the appropriate sanction to be imposed upon an offender, a court must reconcile the principles and objectives of the criminal law with the criminal act committed, the circumstances surrounding its commission, and the character of the offender who committed it. The court must, with the guidance of a few abstract, broadly philosophical, and often contradictory principles of sentencing, decide upon a sanction which is appropriate in the very concrete and factually specific case within which it is presented. This …
The Revival Of Tort Theory In Canada, Jamie Cassels
The Revival Of Tort Theory In Canada, Jamie Cassels
Dalhousie Law Journal
Tort scholarship in Canada has not traditionally been preoccupied with theory. Apart from several fine (doctrinally oriented) texts, by far the greatest amount of tort writing found in the journals is ad hoc and responsive to current is sues. It consists for the most part of case comments or 'recent development' articles inspired by important decisions from higher courts. Beyond this, a number of substantive topics and problem areas have recently been dealt with in some detail. There is alarge amount of literature, for example, on the liability of public authorities and professionals, sporting injuries, asbestos and environmental liability, and …
Social Welfare And Section 7 Of The Charter: Conrad V. Halifax (County Of), Teresa Scassa
Social Welfare And Section 7 Of The Charter: Conrad V. Halifax (County Of), Teresa Scassa
Dalhousie Law Journal
The recent case of Conrad v. Halifax (County of) arose as as. 7 Charter challenge to the County regarding the manner in which the plaintiff was treated as a recipient of municipal social assistance. The case raises a number of interesting issues at the intersection of the Charter and administrative law including the scope of the right to "security of the person"; the scope of the principles of fundamental justice; issues of access to justice and the Charter; and the relationship between the finding of a Charter right and the treatment of the plaintiff in the fact-finding process. This case …