Law Commons^™

When Is It Fair To Break Promises? Illuminating Promissory Estoppel's Inequity Requirement, Marcus Moore

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Promissory estoppel is an important adjunct to contract law, allowing non-contractual promises to be legally binding under prescribed conditions. These conditions include reliance by the promisee, as the doctrine serves to protect reasonable reliance induced by certain types of promises. Typically, the conditions also include a requirement that it would be inequitable for the promisor to go back on the promise. This inequity requirement reflects the nature of promissory estoppel as a creature of the law of equity. Beyond this, however, considerable uncertainty surrounds the inequity element. For example, there are diverging views as to whether it embodies a distinct …

Minimal Impairment: An Unreasonable Measure Of The Justifiable Limits Of Rights, Marcus Moore

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Under both the Oakes and Doré frameworks of proportionality analysis in Canada, critical in assessing the justifiability of rights limitations under section 1 of the Charter has been the “Minimal Impairment” question. Conceptually, Minimal Impairment asks whether a right has been impaired as little as possible in pursuit of the statutory objective. Applied strictly it is a virtually-impossible standard of justification. Thus, sometimes more relaxed standards are applied in practice. This double standard has caused inconsistency in which standard is applied from case- to-case (or even opinion-to-opinion in the same case). New emphasis within the tests on the Proportionality of …

Tending Gardens, Ploughing Fields, And The Unexamined Drift To Constructive Takings At Common Law, Douglas C. Harris

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Expropriation law in Canada has operated on the basis of two presumptions at common law: that compensation is owing for the compulsory acquisition of property unless specifically indicated otherwise by statute; and, that no compensation is owing for land use regulation unless specifically provided for by statute. In its decision in Annapolis Group Inc. v Halifax Regional Municipality, the Supreme Court of Canada abandoned the second presumption that compensation for land use regulation required a statutory foundation. The majority and dissent proceed on the unexamined foundation that there is a common law basis for compensation in claims for constructive takings …

Cle Working Paper No.1/2023--Driving Global Heating To 1.7° And Above: The New Canada Energy Future 2023 Report And Canada's Projected Oil Production To 2050, David Gooderham

Centre for Law and the Environment

The Canada Energy Regulator on June 20, 2023, released its new report Canada’s Energy Future 2023. For the first time the Federal Government’s energy regulator has directly addressed whether the currently projected growth of oil production in Canada to 2040 and 2050 is compatible with keeping increased warming to 1.5°C. The regulator’s analysis is based on three scenarios. Only the CER’s first scenario, the “Global Net-zero Scenario” (stated to be based on the International Energy Agency’s (IEA) “Net-Zero by 2050 Scenario”), is aligned with limiting warming to 1.5°C. That would require a very dramatic reduction in Canada’s existing oil production …

Rights Of Nature: What Are They?, Stepan Wood

Centre for Law and the Environment

This guide is one in an evolving series of guides intended to provide a general introduction to RON laws in plain language. They are intended for anyone curious about the subject, from ordinary citizens to community organizers, business people, scientists, politicians, government officials and Indigenous leaders.

Rights Of Nature: Who Holds Them?, Stepan Wood

Centre for Law and the Environment

This guide is one in an evolving series of guides intended to provide a general introduction to RON laws in plain language. They are intended for anyone curious about the subject, from ordinary citizens to community organizers, business people, scientists, politicians, government officials and Indigenous leaders.

Framing Effects, Rhetorical Devices, And High-Stakes Litigation: A Cautionary Tale, Marcus Moore

All Faculty Publications

Opposing lawyers frame the facts of a case to serve their client, craft leading questions, and exert pressure on the witness to go along with their desired answer. To counter this, counsel for the witness must anticipate this and prepare the witness to tacitly ask themselves before answering such questions: whether a frame is being employed?; and if so, they should respond in their own words, rather than in the terms put to them by the opposing lawyer. Courts might counsel themselves to employ similar caution when incorporating discussion taken from politics or related policy debate. They may not be …

Developments In Contract Law: The 2021-2022 Term — The Enduring Allure Of Freedom Of Contract, Marcus Moore

All Faculty Publications

A review of recent developments in Contract Law reveals that Freedom of Contract continues to thrive in the jurisprudence a half-century after its supposed fall. As the analysis here shows, it is a theme which animates not only general thinking about contracts, but also court resolution of specific cases and issues. High-level considerations drive the reasoning, colouring the application of more detailed rules where these exist. And among these high-level considerations, Freedom of Contract enjoys privileged status as the default law, against which opposing considerations in practice must justify themselves as exceptions. Other considerations vary in their power to constrain …

Sexual Assault Of Women And Adolescent Girls With Mental Disabilities, Janine Benedet, Isabel Grant

All Faculty Publications

This Report considers the research that addresses the sexual assault of women (age 18+) and adolescent girls (12-17) with mental disabilities (disabilities that affect cognition and decision-making, including intellectual disabilities present from birth, dementia, brain injury and certain psychiatric conditions.) These victims are targeted for sexual violence at rates even higher than for women generally. Yet when these women report abuse to authorities, the criminal trial process struggles to provide them with justice, while the consequences of disclosure can be severe and participation in the criminal justice process particularly traumatizing for them.

Front Matter

Canadian Journal of Family Law

No abstract provided.

“This Isn’T Justice”: Abused Women Navigate Family Law In Greater Vancouver, Wendy Chan, Rebecca Lennox

Canadian Journal of Family Law

With the implementation of the Family Law Act in 2013, the family legal system in British Columbia saw a series of progressive reforms. These include the recognition of emotional, psychological, and financial control as family violence, a new protection order process to replace the limited restraining orders formerly available to abuse victims, a mandate that courts consider how exposure to family violence impacts children, and minimum mandatory training standards for family dispute resolution professionals. While there has been a great deal of legal commentary on these new provisions, there is a paucity of scholarly research documenting the experiences of frontline …

The Intersection Of Child Protection And Family Law Systems In Cases Of Domestic Violence, Wanda Wiegers

Canadian Journal of Family Law

Both the child protection and the family law systems are intended to promote the best interests of children, and both can profoundly affect the relationships between children and their parents or caregivers. Over the past two decades, both systems have also accorded more weight in the assessment of best interests to how exposure to domestic violence can harm or place children at risk. However, these systems have evolved differently, are governed by different statutes, and are administered in different ways. Child protection proceedings purport to have primarily a protective function and invariably involve a public agency, while family law proceedings, …

Domestic Violence, Precarious Immigration Status, And The Complex Interplay Of Family Law And Immigration Law, Janet Mosher

Canadian Journal of Family Law

Survivors of domestic violence must frequently navigate multiple legal processes, as well as the various administrative systems that provide crucial supports and resources. For women with precarious immigration status, navigation is made all the more challenging not only because immigration and/or refugee law processes are added to the array of legal domains to be navigated, but because their access to supports and resources is both restrictive and in flux, shifting along with the changes in their immigration status.

Drawing from interviews with experienced lawyers and case law searches, I explore many of the intersections between family law and immigration law …

Introduction: Domestic Violence And Access To Justice Within The Family Law And Intersecting Legal Systems, Jennifer Koshan, Wanda Wiegers, Janet Mosher, Wendy Chan, Michaela Keet

Canadian Journal of Family Law

The articles in this collection explore the access to justice issues that arise for survivors of domestic violence in their encounters with Canada’s family law system. While family law and family dispute resolution processes are the central focus of the articles, three contributions also address family law's intersections with other legal domains (civil restraining orders, child welfare, and immigration). Common across the contributions is a desire to carefully interrogate the potential of law and legal processes to enhance—or conversely to undermine—the safety and well-being of survivors and their children.

Challenging Myths And Stereotypes In Domestic Violence Cases, Jennifer Koshan

Canadian Journal of Family Law

Survivors of domestic violence, who are disproportionately women, face numerous myths and stereotypes about the veracity, nature, and extent of violence they and their children experience. In legal disputes, they encounter allegations that they have lied about or exaggerated domestic violence out of vengeance, jealousy, or to gain an advantage in family law proceedings; that their partners are victims too; that abuse ends at separation or is irrelevant unless it is physical; and that it has no impact on children or only matters if it does. Although scholars and activists have revealed how these allegations are tainted by false and …

Mediator Discretion In Cases Involving Intimate Partner Violence, Michaela Keet, Jeff Edgar

Canadian Journal of Family Law

Mediation is a centerpiece in the ‘agreement culture’ around family law litigation. It is recognized by the courts as offering inherent protections to deal with challenging cases such as those involving intimate partner violence. To learn more about how mediators invoke and view the process’s protections, we conducted a series of interviews with senior mediators, trainers, and policymakers in the field. This article synthesizes current views within the mediation field about how to identify and screen for IPV, and implications for process management. At the heart of these interviews was the theme of mediator discretion: mediators describe and value discretion …

Un-Democratizing The City? Unwritten Constitutional Principles And Ontario's Strong Mayor Powers, Alexandra Flynn

All Faculty Publications

Municipalities are a legal puzzle. Under the Constitution, they are subject to provincial jurisdiction as administrative bodies, like thousands of other tribunals, commissions, and government entities that make decisions on individuals’ daily lives. Local councils must heed the statutory constraints set by provincial governments, with their decisions subject to review by the courts. Yet Canadian cities create and deliver policies and services, with their leaders accountable to the public through regular elections, making them governments, too. They are essentially non-constitutionally protected governments that represent their citizens and are on the front lines of serious issues in their communities like homelessness …

Of Lock-Breaking And Stock Taking: Ip, Climate Change And The Right To Repair In Canada, Graham Reynolds

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This paper argues that Canadian governments have both legal and moral obligations to act to combat climate change. In seeking to fulfill these obligations, Canadian governments should pay particular attention to Canada’s intellectual property (IP) regime. This paper argues that given the centrality of IP to Canada’s economy, a comprehensive review is required in order to determine whether and the extent to which elements of Canada’s IP regime contribute to climate change or impede climate action. To illustrate the need for such a review, this paper will highlight one example of how Canada’s IP regime, as currently structured, impedes the …

To Whom Are Directors’ Duties Owed? Evidence From Canadian M&A Transactions, Camden Hutchison

All Faculty Publications

One of the most contentious issues in corporate law is the proper scope of fiduciary duties. Many scholars have argued that fiduciary duties are owed exclusively to shareholders, while others have advocated a broader conception of directors’ fiduciary obligations, potentially encompassing a wide variety of stakeholder and community interests. This debate has both normative and positive dimensions: Not only are there theoretical disagreements as to whom directors’ duties should be owed, there are also more basic disagreements as to what the law actually requires, including the extent to which business norms supplement (or undermine) legal rules. In Canada, at least, …

Preventive Justice? Domestic Violence Protection Orders And Their Intersections With Family And Other Laws And Legal Systems, Jennifer Koshan

Canadian Journal of Family Law

Civil protection order legislation is a distinctive response to domestic violence with its focus on immediate safety and access to justice. Although the legislation was motivated by the need to broaden protective remedies for domestic violence and make them more accessible, similar remedies continue to exist and be utilized in the family law arena—for example, exclusive possession orders for the family home and restraining orders related to family disputes. Some jurisdictions also allow civil protection orders to contain conditions relevant to family law disputes, such as interim parenting orders. Intersections, overlaps and potential conflicts also exist between civil protection order …

Regulation As Respect, Cristie Ford

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The so-called “meme stock” phenomenon of early 2021 was an unexpected, riveting, short-lived, and ultimately tragicomic (or maybe just tragic) event. It was the product of many things but, on some level and for some investors, it was political protest: grassroots “voice” in the form of online stock purchases.

The modern regulatory state does not have effective mechanisms for absorbing public perspectives in all their variety and nuance. Public input mechanisms (including but not limited to notice and comment rulemaking) are embedded within what Julie Cohen and Ari Waldman have called the “regulatory managerialist” model. Within this paradigm, non-expert knowledges …

Regulating The Concussion Crisis In Sports: Canada’S Initiative To Bring Prevention Into Focus, Marcus Moore

All Faculty Publications

The twenty-first century has revealed the existence of a concussion crisis in sports. The crisis is of global reach, and Canada is no exception. In recent years, the Canadian government joined citizens in recognizing sports concussion as a major public health issue. A parliamentary committee investigated the crisis, reported findings, and made recommendations which the government accepted. As far as legal responses to the sport concussion crisis, new among the recommendations was a callto- action on prevention (Recommendation 13). Since there remains no medical cure for concussions, the government agreed with the view of injured former athletes and injury prevention …

The Legal Innovation Sandbox, Cristie Ford, Quinn Ashkenazy

All Faculty Publications

"The Legal Innovation Sandbox" examines a novel regulatory approach, called the innovation sandbox, in the context of the legal profession. The paper makes the claim that the “sandbox” regulatory model is in fact better suited to fostering innovation in the legal services arena than it is in the financial technology, or fintech, arena in which the sandbox concept developed. However, any effort to transplant a technique from one context to another needs to be carefully considered. This article is comparative across disciplines – financial regulation and legal services regulation – and across jurisdictions – covering the United Kingdom, the United …

Criminality And Inequity Under Canada's Legalization Of Cannabis: A Study Of Vancouver's Downtown Eastside, Stephanie Lake, Margot Young

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The origin of this essay reminds us of the importance of interdisciplinary collaboration to the development and assessment of public policy. It also demonstrates the serendipitous beginnings of many interesting inquiries. This collaboration was thus fortuitous: authors Lake and Young met during Lake’s doctoral dissertation defence. Young was on the examining committee. Lake presented a series of epidemiological studies (three of which are summarized below) involving the use of cannabis for therapeutic and harm reduction purposes among marginalized people who use drugs (PWUD) in Vancouver. Young’s lines of questioning involving the legal implications of Lake’s findings spurred the idea to …

The Canadian Digital Services Tax, Wei Cui

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The Digital Services Tax (DST) may never be enacted in Canada. At least that seems to be what most Canadian tax professionals hope for: the draft Digital Services Tax Act (DSTA), released by the federal government in December 2021, has received little meaningful commentary; likely few Canadian taxpayers potentially affected by the DSTA (and their tax advisors) have attempted to learn from experiences of DST compliance in other countries; and the world also has little to learn from Canadian taxpayers’ preparation for a potential DST. This essay highlights three ways in which this collective dismissal of Canada’s proposed DST is …

The Chinese Enterprise Income Tax, Wei Cui

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China’s Enterprise Income Tax (EIT) is the world’s largest corporate income tax by revenue, contributes a significant share to China’s total tax revenue, and is clearly the most substantial component of capital taxation in China. Yet scholarly research on the EIT is still limited. This overview chapter outlines the EIT’s main components from a legal perspective, while referring to empirical economic and accounting research that sheds light on these components. It discusses the personal scope of the EIT, so as to identify the significance of the pass-through and the tax-exempt sectors relative to the taxable corporate sector. It then examines …

Principles Of Interpretation As Applied To Corporate Articles: A Comment On Rogers V. Rogers Communications Inc., Camden Hutchison

All Faculty Publications

Last fall, public attention was captured by a contentious boardroom battle among members of the Rogers family for control of Rogers Communications Inc. (“RCI”). In a corporate showdown that drew comparisons to HBO’s Succession, Edward Rogers attempted to replace RCI’s chief executive officer and several independent directors against the wishes of his mother and two sisters. When the board of directors refused Edward’s demands, he petitioned the British Columbia Supreme Court to validate his changes to RCI’s board. The resulting judgement,1 which validated Edward’s actions, serves as a forceful affirmation that articles of a British Columbia company should be interpreted …

Rich Dad, Gay Dad: The Wealth Traps Of Gay Fatherhood, Aloni Erez

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While legal and societal progress has enabled gay fathers to form families, there remains a critical blind spot in our understanding of their financial wellbeing. Specifically, there are indications that a wealth gap may exist among gay father households. This article introduces a novel taxonomy of the mechanisms that likely contribute to a wealth gap for these households, including surrogacy and adoption costs, legal recognition expenses, parental leave policies, discrimination in housing and borrowing, and limited support from families of origin. These obstacles reflect the structural features and prejudices that disproportionately affect households led by non-heterosexual fathers. The article highlights …

Against Settlement In Transnational Business And Human Rights Litigation, Hassan M. Ahmad

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In Against Settlement, Owen Fiss argued that settlement may not always be the optimal result of civil suits, particularly those that involve novel or ambiguous areas of law or ostensible power imbalances. That work spurred a range of scholarship around the merits and demerits of settlement. And although the settlement versus litigation debate is now almost four decades old, its currency persists in common law systems in which courts are, at times, called upon to expand or even re-envision doctrines or procedural rules. This article revisits that debate. It applies Against Settlement to transnational business and human rights litigation that …

The "Right To City" In The Era Of Crowdsourcing, Alexandra Flynn

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This article explores the meaning and context of crowdsourcing at the municipal scale. In order to legitimately govern, local governments seek feedback and engagement from actors and bodies beyond the state. At the same time, crowdsourcing efforts are increasingly being adopted by entities – public and private – to digitally transform local services and processes. But how do we know what the “the right to the city” (RTTC) means when it comes to meaningful and participatory decision-making? And how do we know if participatory efforts called crowdsourcing—a practice articulated in a 2006 Wired article in the context of the …