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Articles 1 - 30 of 70
Full-Text Articles in Law
Does The Attorney General Have A Duty To Defend Her Legislature’S Statutes? A Comment On The Reference Re Genetic Non-Discrimination Act, Andrew Martin
Articles, Book Chapters, & Popular Press
The Reference Re Genetic Non-Discrimination Act was unusual because the Attorney General for Canada argued that federal legislation was unconstitutional. In this comment, I explore the implications of this choice for the role of the Attorney General and her relationship with Parliament. I argue that the Attorney General has a duty not to defend legislation, including legislation that began as a private member’s bill, that she reasonably believes to be unconstitutional – and that if Parliament wants to defend such legislation, it should do so itself instead of relying on the Attorney General. If Parliament does not do so, the …
Unconstitutional Or Just Unworkable? The Life And Death Of A Prohibition On Floor-Crossing In Fletcher V The Government Of Manitoba, Andrew Martin
Unconstitutional Or Just Unworkable? The Life And Death Of A Prohibition On Floor-Crossing In Fletcher V The Government Of Manitoba, Andrew Martin
Articles, Book Chapters, & Popular Press
Fletcher v the Government of Manitoba is the first reported challenge to a floor-crossing prohibition under the Canadian Charter of Rights and Freedoms. This case comment begins with the legislative history of the challenged provision and then provides an overview and critique of the reasons in Fletcher. Against this backdrop, it then reflects on the lessons of the case in two respects. The first is the difficulty in translating a policy idea into legislation – specifically, defining the conduct to be prohibited and determining the appropriate deterrent or penalty for breach. The second respect is the government’s role in …
Reassessing The Constitutional Foundation Of Delegated Legislation In Canada, Lorne Neudorf
Reassessing The Constitutional Foundation Of Delegated Legislation In Canada, Lorne Neudorf
Dalhousie Law Journal
This article assesses the constitutionalfoundation by which Parliament lends its lawmaking powers to the executive, which rests upon a century-old precedent established by the Supreme Court of Canada in a constitutional challenge to wartime legislation. While the case law demonstrates that courts have continued to follow this earlyprecedent to allow theparliamentary delegation of sweeping lawmaking powers to the executive, it is time for courts to reassess the constitutionality ofdelegation in light ofCanada's status as a liberal democracy embedded within a system of constitutional supremacy. Under the Constitution of Canada, Parliament is placed firmly at the centre ofpublic policymaking by being …
Case Comment: Heller V. Uber Technologies Inc., Peter Quon
Case Comment: Heller V. Uber Technologies Inc., Peter Quon
Dalhousie Law Journal
Canadian courts have accepted mandatory arbitration clauses as presumptively enforceable unless there is legislation that precludes their application. This position was confirmed by the Supreme Court in Seidel v. TEL US CommunicationsInc. In Heller v. Uber Technologies Inc., the Ontario Court of Appeal considered an arbitration clause in the context of legislation following the approach in Seidel, but the Court also undertook an unconscionability analysis. Reviewing a motion that was granted to stay a class action proceeding in favour of an arbitration clause, the Court unanimously held that the clause was invalid on two separate grounds. First, the arbitration clause …
Legal Ethics And The Political Activity Of Government Lawyers, Andrew Martin
Legal Ethics And The Political Activity Of Government Lawyers, Andrew Martin
Articles, Book Chapters, & Popular Press
The ability to engage in political activity is an essential feature of a democratic society. However, the ability of government lawyers to do so is unclear. While most governments have passed legislation identifying permissible political activity of their employees, it is unclear how the professional obligations of lawyers apply in this context and how these professional obligations interact with this legislation. This article answers these questions. The duty of loyalty to the client requires most government lawyers to refrain from all political activity at the same level of government. The special professional obligations of Crown prosecutors require these lawyers to …
Foreseeably Unclear: The Meaning Of The "Reasonably Foreseeable" Criterion For Access To Medical Assistance In Dying In Canada, Jocelyn Downie, Kate Scallion
Foreseeably Unclear: The Meaning Of The "Reasonably Foreseeable" Criterion For Access To Medical Assistance In Dying In Canada, Jocelyn Downie, Kate Scallion
Dalhousie Law Journal
Canada's medical assistance in dying legislation contains the eligibility criterion "naturaldeath has become reasonably foreseeable." The phrase "reasonably foreseeable" is unfamiliar and unclear. As a result of ongoing confusion about its meaning, there is reason to be concerned that under- or over-inclusive interpretations of the phrase are adversely affecting access to MAID. With critical interests at stake (eg access to MAiD and potential criminal liability), it is essential that the meaning of the phrase be clarified. Furthermore, the meaning of "reasonably foreseeable" will be at issue in the Charter challenges to the federal MAiD legislation currently before the courts in …
Trying And Dying: Are Some Wishes At The End Of Life Better Than Others?, Oliver J. Kim
Trying And Dying: Are Some Wishes At The End Of Life Better Than Others?, Oliver J. Kim
Dalhousie Law Journal
In the United States, efforts to create a "rightto try," or to provide access for the terminally ill to try experimental drugs, have seen overwhelming success in passing state legislatures. This success provided the foundation for advocates' long-term goal of a federal right to try. Yet proposals ranging from very modest advance-care-planning consultations to the "rightto die,"or medical aid in dying, face steep political challenges despite seeming public support. This paper discusses the legal underpinnings of both "rights" and the current political and policy debate over each. More often than not, these "rights" are grantedthrough legislation rather than judicial decisions, …
The Animal Protection Commission: Advancing Social Membership For Animals Through A Novel Administrative Agency, John Maccormick
The Animal Protection Commission: Advancing Social Membership For Animals Through A Novel Administrative Agency, John Maccormick
Dalhousie Law Journal
If the state sought to improve law's treatment of nonhuman animals, what form should its intervention take? This paper questions the assumption that the state would have to choose between incremental welfare reforms and an immediate transition to animal personhood. Drawing on Martha Nussbaum's capabilities theory and on Sue Donaldson and Will Kymlicka's political approach to animal rights, it argues that the focus should be on how the relationship between human and nonhuman animals can be improved. It suggests that the state could intervene by creating an administrative agency with just this task; and that it could look to labour …
From Smokes To Smokestacks: Lessons From Tobacco For The Future Of Climate Change Liability, Martin Zp Olszynski, Sharon Mascher, Meinhard Doelle
From Smokes To Smokestacks: Lessons From Tobacco For The Future Of Climate Change Liability, Martin Zp Olszynski, Sharon Mascher, Meinhard Doelle
Articles, Book Chapters, & Popular Press
In this article, we imagine a future Canada (circa 2030) wherein the world has managed to avoid the worst climate change but nevertheless has begun to experience considerable warming. Governments of all levels, but especially provincial ones, are incurring unprecedented costs to mitigate the effects of climate change and to adapt to new and uncertain climatic regimes. We then consider how legislatures might respond to these challenges. In our view, the answer may lie in the unprecedented story of tobacco liability, and especially the promulgation in the late 1990s of provincial legislation specifically designed to enable provinces to recover the …
Should Medical Assistance In Dying Be Extended To Incompetent Patients With Dementia? Research Protocol Of A Survey Among Four Groups Of Stakeholders From Quebec, Canada, Gina Bravo, Claudie Rodrigue, Vincent Thériault, Marcel Arcand, Jocelyn Downie, Marie-France Dubois, Sharon Kaasalainen, Cees M. Hertogh, Sophie Pautex, Lieve Van Den Block
Should Medical Assistance In Dying Be Extended To Incompetent Patients With Dementia? Research Protocol Of A Survey Among Four Groups Of Stakeholders From Quebec, Canada, Gina Bravo, Claudie Rodrigue, Vincent Thériault, Marcel Arcand, Jocelyn Downie, Marie-France Dubois, Sharon Kaasalainen, Cees M. Hertogh, Sophie Pautex, Lieve Van Den Block
Articles, Book Chapters, & Popular Press
Background: Alzheimer’s disease and related disorders affect a growing number of people worldwide. Quality of life is generally good in the early stages of these diseases. However, many individuals fear living through the advanced stages. Such fears are triggering requests for medical assistance in dying (MAiD) by patients with dementia. Legislation was recently passed in Canada and the province of Quebec allowing MAiD at the explicit request of a patient who meets a set of eligibility criteria, including competence. Some commentators have argued that MAiD should be accessible to incompetent patients as well, provided appropriate safeguards are in place. Governments …
Informing The Future Of End-Of-Life Care In Canada: Lessons From The Quebec Legislative Experience, Michelle Giroux
Informing The Future Of End-Of-Life Care In Canada: Lessons From The Quebec Legislative Experience, Michelle Giroux
Dalhousie Law Journal
There have been numerous and challenging developments respecting endof-life care in Canada. In Quebec, political consensus and changes in public opinion led to the adoption of end-of-life care legislation. This paper discusses the context and foundation of that reform and reviews its content with the objective of informing the future of end-of-life care in Canada. In the first part of the paper I explore the balancing of the right to life and autonomy, with a focus on the approach chosen in Quebec by the Legal Experts Panel Report. In Part 11, I discuss Quebec's adoption of An Act Respecting End-of-Life …
Digital Evidence And The Adversarial System, Colton Fehr
Digital Evidence And The Adversarial System, Colton Fehr
Canadian Journal of Law and Technology
Scholars have observed that the adversarial system tends to provide courts with only a ‘‘small snapshot of the technological whole,” which in turn forms the record upon which broader legal pronouncements occur. As a result, they contend that legislatures should be more proactive in making rules governing complex and rapidly advancing technologies, and that courts must show deference to these rules. Other scholars retort that, in practice, legislatures often fail to update obviously flawed and outdated privacy provisions. Whether due to special interest influence, majoritarian dislike of criminal suspects, or other institutional constraints, legislative responses have been wanting. As such, …
Wired Identities: Retention And Destruction Of Personal Health Information In An Electronic World, Elaine Gibson
Wired Identities: Retention And Destruction Of Personal Health Information In An Electronic World, Elaine Gibson
Dalhousie Law Journal
This article examines the issue of the retention and destruction of personal health information. While legislation in Canada shows some attention to the issue of retaining health records, very little consideration has been given to their destruction. As technological advances have made indefinite retention feasible, serious privacy issues are now being raised by the lack of a standard related to the destruction of health records. The author argues that this issue needs to be explicitly addressed. The author analyzes this problem by looking at issues of autonomy, public good, inequality, and privacy as a social good before offering thoughts on …
Inequality And Identity At Work, Jennifer Koshan
Inequality And Identity At Work, Jennifer Koshan
Dalhousie Law Journal
A clinic at the University of Calgary law school in 2014 worked with unions and workers'rights groups to develop constitutionalchallenges to the historic exclusion of farm workers from labour and employment legislation in Alberta. After exploring arguments under sections 2(d), 7 and 15 of the Canadian Charter of Rights and Freedoms, we concluded that, based on the existing jurisprudence, the equality rights arguments under section 15 were the weakest. This article explores what is lost when we fail to recognize the identity-based harms that flow from government violations of equality rights. It considers the nature of these harms, why they …
Shareholder Liability In Nova Scotia Unlimited Companies, Mohamed F. Khimji
Shareholder Liability In Nova Scotia Unlimited Companies, Mohamed F. Khimji
Dalhousie Law Journal
Unlimited Companies incorporated under the Nova Scotia Companies Act (NSULCs) have, in recent decades, become recognized as tax efficient forms of business organizations. NSULCs differ from conventional business corporations in that their shareholders are exposed to liability for corporate obligations under the enabling legislation. This paper attempts to provide an analysis of the precise nature of unlimited liability faced by shareholders in such entities in response to recent bankruptcy litigation in the U.S. that raised the issue of the relationship between a shareholder's liability for a debt of the firm under the enabling legislation and under a contractual guarantee provided …
Common Resource Or Private Right: Contested Claims To Seaweed In 19th Century Prince Edward Island, Rusty Bittermann, Margaret Mccallum
Common Resource Or Private Right: Contested Claims To Seaweed In 19th Century Prince Edward Island, Rusty Bittermann, Margaret Mccallum
Dalhousie Law Journal
In the nineteenth century, before farmers could purchase inexpensive chemical fertilizers, farmers on Prince Edward Island looked to the sea and the shore for nutrients to add to their soils. When disputes over who had the right to gather seaweed led to litigation, judges ruled that the owners of property fronting on the shore had the exclusive right to seaweed cast up on the shore, both above and belot, the high water mark. These rulings did little to dispel the popular perception that seaweed, a gift of nature, was a common resource that belonged to the people who collected it. …
Anglo-American Directors' Legal Duties And Csr: Prohibited, Permitted Or Prescribed?, Benedict Sheehy, Donald Feaver
Anglo-American Directors' Legal Duties And Csr: Prohibited, Permitted Or Prescribed?, Benedict Sheehy, Donald Feaver
Dalhousie Law Journal
The interaction between corporate social responsibility (CSR) obligations and directors' legal duties is underexamined. This article addresses that void by examining directors' duties in case law and legislation across the major commonwealth countries and the U.S.A. It provides an analysis of leading cases and examines how they deal with directors' duties, the doctrine of shareholder primacy, corporate legal theory and CSR. The article reviews fiduciary relations and duties and analyzes the directors'duties toexercise power in the best interests of the company as a whole and for proper purposes. The article concludes that CSR is well within the accepted range of …
The Payoffs And Pitfalls Of Laws That Encourage Shared Parenting: Lessons From The Australian Experience, Patrick Parkinson
The Payoffs And Pitfalls Of Laws That Encourage Shared Parenting: Lessons From The Australian Experience, Patrick Parkinson
Dalhousie Law Journal
A fierce argument is raging in various jurisdictions around the world about whether legislation should encourage shared parenting when mothers and fathers live apart. Much attention has been paid to changes to the law in Australia in 2006; however, there are many myths about the impact of those legislative changes. This article explains the changes and places them in the context of developments across the western world in the law of parenting after separation. It then reviews the research evidence on the effects of the 2006 reforms, particularly in terms of the encouragement of shared care. The article concludes by …
Confidential Information And Governments: Balancing The Public's Right To Access Government Records And An Oil And Gas Company's Right To Protect Confidential Information, Stephen Burns, Todd Newhook, Sébastien Gittens
Confidential Information And Governments: Balancing The Public's Right To Access Government Records And An Oil And Gas Company's Right To Protect Confidential Information, Stephen Burns, Todd Newhook, Sébastien Gittens
Dalhousie Law Journal
This paper explores the relationship between the public's right to access records in the custody or under the control of the government with the oil and gas industry's need to protect its confidential information from disclosure. Focusing on practical issues, the authors review the law of confidence, the structure of the access to information legislation and related case law, the public policy considerations supporting same, and some of the risks and pitfalls that organizations can avoid if they consider such legislation when interacting with public bodies.
"The Harshness And Injustice Of The Common Law Rule... Has Frequenly Been Commented Upon": Debating Contributory Negligence In Canada, 1914-1949, R Blake Brown, Noelle Yhard
"The Harshness And Injustice Of The Common Law Rule... Has Frequenly Been Commented Upon": Debating Contributory Negligence In Canada, 1914-1949, R Blake Brown, Noelle Yhard
Dalhousie Law Journal
In the early twentieth century many legal professionals damned the law of contributory negligence as complicated and unfair to plaintiffs barred from recovery, while businesspeople often complained thatjudges and juries refused to find sympathetic plaintiffs contributorily negligent. Elite Canadian lawyers, through their work in the Canadian Bar Association and the Commission on Uniformity of Legislation in Canada, proposed model contributory negligence legislation that a number of provinces subsequently adopted. Reviews of these statutes were mixed however The large body of existing case law, despite its complications, encouraged some lawyers and judges to fall back on older jurisprudence in interpreting the …
Will The Rotterdam Rules Be Accepted? A Liner Cargo Interest Perspective, Mary Brooks, Jason Mackey
Will The Rotterdam Rules Be Accepted? A Liner Cargo Interest Perspective, Mary Brooks, Jason Mackey
Dalhousie Law Journal
The paper begins with some background on modern liner shipping and cargo interest perspectives before considering the Rotterdam Rules 2008 (The Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea), which could ultimately replace Canada's existing carriage of goods legislation. The authors explore the key issues arising from the implementation of the Rules, and discuss why, from a manufactured goods perspective, there will likely be limited acceptance by cargo owners. They conclude that the gains made in the areas of electronic documentation and greater clarity on delay, as well as altered limits of liability do …
The Continuum Of International Maritime Law And Canadian Maritime Law: Explaining A Complex Relationship, Aldo Chircop, Sarah Shiels
The Continuum Of International Maritime Law And Canadian Maritime Law: Explaining A Complex Relationship, Aldo Chircop, Sarah Shiels
Dalhousie Law Journal
This article discusses the relationship between international maritime law and Canadian maritime law from legislative and judicial perspectives. It explains the relationship through Canada's implementation of international maritime conventions and a study of Canadian case law The article concludes that the relationship has a well-developed pattern based on legislative structures and judicial processes. With strong historical roots and traditions, the relationship is motivated by international comity and has firm grounding in international and domestic public policyin support ofinternational uniformity to facilitate international commerce. Canadian maritime law has a unique heritage underscored by commercial necessity The consequence is a relationship between …
From Idea To Practice: Sustainable Development Efforts In Manitoba, A John Sinclair, Lisa Quinn
From Idea To Practice: Sustainable Development Efforts In Manitoba, A John Sinclair, Lisa Quinn
Dalhousie Law Journal
With a renewed global interest in achieving a more sustainable society, the authors reflect on the history of institutionalizing sustainable development in their province, Manitoba, and consider its future. This paper outlines that province's approaches to developing and advancing sustainable development and discusses the success of these approaches in shaping, guiding, and furthering sustainable development in the province. This is achieved through examination of legislation and review of sustainable development documents as well as interviews with various participants in the process including members of the Manitoba Round Table for Environment and Economy and members of the more recent Manitoba Round …
Wrongful Termination Claims In The Supreme Court Of Canada: Coming Up Short, Dianne Pothier
Wrongful Termination Claims In The Supreme Court Of Canada: Coming Up Short, Dianne Pothier
Dalhousie Law Journal
The author concludes that the Supreme Court of Canada's narrow interpretations in Wal-Mart and Honda undermine the purposes of collective bargaining and human rights legislation, respectively Wal-Mart involves an unfair labour practice complaint following the closing of a store in Jonquibre, Quebec. The author contests the analysis of the Supreme Court of Canada, as being far removed from the context of the real difficulties in dealing with determined anti-union employers, instead facilitating statutory evasion. Honda involves a claim for wrongful dismissal, where the issue at the Supreme Court of Canada level is one of remedy, premised on the dismissal amounting …
Wrongful Termination Claims In The Supreme Court Of Canada: Coming Up Short, Dianne Pothier
Wrongful Termination Claims In The Supreme Court Of Canada: Coming Up Short, Dianne Pothier
Dianne Pothier Collection
The author concludes that the Supreme Court of Canada's narrow interpretations in Wal-Mart and Honda undermine the purposes of collective bargaining and human rights legislation, respectively Wal-Mart involves an unfair labour practice complaint following the closing of a store in Jonquibre, Quebec. The author contests the analysis of the Supreme Court of Canada, as being far removed from the context of the real difficulties in dealing with determined anti-union employers, instead facilitating statutory evasion. Honda involves a claim for wrongful dismissal, where the issue at the Supreme Court of Canada level is one of remedy, premised on the dismissal amounting …
Judges And Religious-Based Reasoning, David Blaikie, Diana Ginn
Judges And Religious-Based Reasoning, David Blaikie, Diana Ginn
Articles, Book Chapters, & Popular Press
Is it ever acceptable for a judge in a secular liberal democracy to rely on, and explicitly refer to, religious-based reasoning in reaching a decision? While it is unlikely that many Canadian judges will be seized with the desire to include religious-based reasoning in their judgments, we raise this issue because it allows us to examine the appropriate role of religious-based discourse in a challenging context, where arguments about unconstitutionality are strongest. In a previous article, we concluded that there are no ethical impediments to citizens using such discourse in discussing public affairs. We argued that it is no less …
Public Health Protection And Drinking Water Quality On First Nation Reserves: Considering The New Federal Regulatory Proposal, Constance Macintosh
Public Health Protection And Drinking Water Quality On First Nation Reserves: Considering The New Federal Regulatory Proposal, Constance Macintosh
Articles, Book Chapters, & Popular Press
In January 2009, the federal government issued a discussion paper that details its preferred regulatory route for enabling a legislative framework. This route is to referentially incorporate provincial legislation regarding operational standards through a framework statute, and then develop the details of the regime through regulations to be developed in consultation with First Nations over the next few years. Importantly, the opening sentence of the discussion paper's executive summary expressly connects water and public health. It reads: "The provision of safe drinking water and the effective treatment of wastewater are critical in ensuring the health and safety of First Nations …
Social And Economic Rights In Canada: What Are They And Who Can Best Protect Them?, A. Wayne Mackay
Social And Economic Rights In Canada: What Are They And Who Can Best Protect Them?, A. Wayne Mackay
Articles, Book Chapters, & Popular Press
This article examines the development and current status of positive social and economic rights in Canada. Exploring the comparative competence of legislatures, courts and human rights tribunals, Wayne MacKay suggests that courts should depart, with caution, from their traditional deferential role to legislators. Due to their flexibility and accessibility, HR Tribunals should supplement the role of the courts and legislatures in giving effect to social and economic rights, which should form part of a holistic package of human rights in Canada.
Colonialism And The Process Of Defining Aboriginal People, D'Arcy Vermette
Colonialism And The Process Of Defining Aboriginal People, D'Arcy Vermette
Dalhousie Law Journal
It is not uncommon for Aboriginal law students to experience discomfort in studying the law The discomfort is not unique to legal studies, but the law provides a venue where the effects of the imposition of colonial norms are starkly revealed. In law school the author had to confront how Canadian law has attempted to control Aboriginal identity, at first through legislation and then through the courts. While the locus and style of controlling Aboriginal identity has changed over time, the practice of controlling Aboriginal identity is ever present. This process of control dehumanizes individualsand peoples and continues into the …
The Confidentiality Of Seismic Data, Michael P. Simms, Van Penick
The Confidentiality Of Seismic Data, Michael P. Simms, Van Penick
Dalhousie Law Journal
The authors review the common law, common contractual language and statutory law relating to the confidentiality of seismic information. The extent of the rights of the Canada-Newfoundland and Labrador and Canada-Nova Scotia Offshore Petroleum Boards to receive, use and make seismic data public is considered in light of freedom of information and protection of privacy legislation. The authors discuss the different treatment of specified user and speculative seismic data, and explore copyright.