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Full-Text Articles in Law
Conciliation Des Litiges Et Formes Alternatives De Régulation En Droit Administratif Fédéral, France Houle, Daniel Mockle
Conciliation Des Litiges Et Formes Alternatives De Régulation En Droit Administratif Fédéral, France Houle, Daniel Mockle
Osgoode Hall Law Journal
Despite the considerable attention devoted to Alternative Dispute Resolution (ADR) in Canada, few studies are available on its impact in public law, especially in federal administrative law. Yet, there is much evidence that these techniques are increasingly used and it is therefore timely to catalogue and classify them. To this end, a distinction is drawn between dispute resolution techniques used for transactional purposes and those used for regulatory purposes. This classification provides the basis for a theoretical analysis which focuses on public law and raises questions generally neglected in the existing literature concerning ADR: the particular nature of federal law, …
Flattening The Claims Of The Flat Taxers, Neil Brooks
Flattening The Claims Of The Flat Taxers, Neil Brooks
Dalhousie Law Journal
The idea that income tax rate brackets should be flattened has gained some support among neoclassical economists, right-wing think-tanks and Canadian politicians. Those propounding the idea argue that flattening the rate structure will simplify the tax system and reduce tax avoidance and evasion. They also argue that it would usher in an era of increased economic prosperity by encouraging talented Canadians to work harder, save and invest more, and remain in Canada. In defending progressive taxation, this article takes issue with each of these claims. It concludes that the fundamental differences between those who support flat taxes and those who …
Preface, Philip Girard
Preface, Philip Girard
Dalhousie Law Journal
The foreword to the first issue of the Dalhousie Law Journal (September 1973) stated that the editors commenced the enterprise "without lofty pretensions." If the newjournal' s existence served "to encourage creative research and writing among law teachers, among students, and generally among the legal profession and related disciplines, that may be justification." The editors nonetheless concluded with a lofty enough mission statement: "we shall be endeavouring to produce a stimulating journal exemplifying those qualities that most people would characterize as scholarly, among them thoroughness, precision of thought, independence of judgment." The Editorial Board believes that the Journal has fulfilled …
The Pacific Salmon War: The Defence Of Necessity Revisited, Michael Keiver
The Pacific Salmon War: The Defence Of Necessity Revisited, Michael Keiver
Dalhousie Law Journal
In 1994, frustration with the Pacific salmon dispute between Canada and the United States, caused the Canadian government to impose a transit fee on American fishing vessels. The author reviews the legality of the measure vis-avis three legal regimes: the United Nations Convention on Law of the Sea, the defence of countermeasures, and the defence of necessity. In addition, the effectiveness of retaliatory measures are examined in viewof recent developments. The author concludes by recommending a two-track strategy: an alliance with NativeAmerican groups as well as environmentalnon-governmentalorganizations.
Négligence, Victimes Indirectes Et Préjudice Moral En Common Law: Les Limites A La Réparation Se Justifient-Elles?, Louise Belanger-Hardy
Négligence, Victimes Indirectes Et Préjudice Moral En Common Law: Les Limites A La Réparation Se Justifient-Elles?, Louise Belanger-Hardy
Osgoode Hall Law Journal
Common law courts have traditionally been reluctant to award damages for emotional harm. This is particularly true in cases of secondary victims of negligence. Preoccupied by the fear of fraudulent claims or the danger of opening the floodgates, courts strive to limit the scope of liability in these circumstances. But how legitimate is the reasoning that has served to support such a restrictive analysis of the decision to award damages for emotional harm? The author explores the limitations of the Canadian courts' current approach and analyzes the basis of their concern. She concludes that not only do the beliefs espoused …
Aboriginal Rights, Aboriginal Culture, And Protection, Gordon Christie
Aboriginal Rights, Aboriginal Culture, And Protection, Gordon Christie
Osgoode Hall Law Journal
There is a common perception that elements of mainstream society are disrespectful of Aboriginal culture. This article argues that developments in the law offer promise for the protection of Aboriginal "intellectual products," manifestations of Aboriginal culture reflecting their world-view. What Aboriginal peoples would like to see protected, however, are not so much words, pictures, or acts but rather the values, beliefs, and principles that give these meaning. Such, the author argues, are best protected by mechanisms internal to Aboriginal communities. Furthermore, the lack of such mechanisms would not justify the intrusion of Canadian law, but rather raises a call within …
The Fourth Protocol To The Income Tax Treaty Between The United States And Canada - A Step In The Right Direction, Adam D. Lustig
The Fourth Protocol To The Income Tax Treaty Between The United States And Canada - A Step In The Right Direction, Adam D. Lustig
University of Miami Inter-American Law Review
No abstract provided.
L'Indépendance Judiciaire Et La Cour Suprême: Reconstruction Historique Douteuse Et Théorie Constitutionnelle De Complaisance, Jean Leclair, Yves-Marie Morissette
L'Indépendance Judiciaire Et La Cour Suprême: Reconstruction Historique Douteuse Et Théorie Constitutionnelle De Complaisance, Jean Leclair, Yves-Marie Morissette
Osgoode Hall Law Journal
The recent decision of the Supreme Court of Canada in the Reference re: Remuneration of Judges in the Provincial Court of Prince Edward Island has given judicial independence a surprising interpretation. A majority of the Court stated that this principle requires legislative bodies to establish independent procedures for setting judicial salaries. The Court maintained that the basis of judicial independence is to be found in the preamble of the Constitution Act, 1867, rather than the express provisions of the constitutional text. The authors argue in Part I of this article that the Court transformed fundamentally and without reason traditional conceptions …
Financing Of Litigation By Third-Party Investors: A Share Of Justice?, Poonam Puri
Financing Of Litigation By Third-Party Investors: A Share Of Justice?, Poonam Puri
Osgoode Hall Law Journal
This article addresses the issue of the funding of civil litigation within the framework of access to justice and the normative goal of increasing access to the civil justice system. The author critically analyzes and cautiously advances the case for the recent development of the financing of litigation by third-party investors. The argument is that investor financing has the potential to increase access to the civil justice system by ameliorating the economic barriers to litigation. The author evaluates investor financing against existing public and private models of financing litigation such as legal aid plans, litigation subsidy funds, and contingent fee …
The Division Of Labour: An Examination Of Certification Requirements, Gary Svirsky
The Division Of Labour: An Examination Of Certification Requirements, Gary Svirsky
Osgoode Hall Law Journal
Under Canadian and American labour law, organized workers must be divided into bargaining units. In order to negotiate with employers on behalf of workers, these bargaining units must be certified. This entails receiving the approval of the appropriate labour relations board. The author argues that this requirement informs the outcomes of collective bargaining. This article takes the position that certification is a subtle method for maintaining the existing social order and the consequent distribution of power, without actually appearing to do so. Certification can be understood as a tool for fragmenting the potential power of labour's unity. The present analysis …
Return Of The Chancellor's Foot?: Discretion In Permanent Resident Deportation Appeals Under The Immigration Act, Richard Haigh, Jim Smith
Return Of The Chancellor's Foot?: Discretion In Permanent Resident Deportation Appeals Under The Immigration Act, Richard Haigh, Jim Smith
Osgoode Hall Law Journal
This article examines recent changes to section 70 of the Immigration Act that allow the minister of immigration to deport Canadian permanent residents who are determined to be a danger to the public without proper procedural safeguards. The authors argue that much of both current theoretical literature on discretion and the history of the development of discretion within the immigration scheme are against these changes. By analyzing how discretion is employed in other, similar, public safety regimes, the authors show that the recent changes violate individual rights and will very likely create more intractable problems than those they set out …
Birds Of A Feather: Alliances And Influences On The Lamer Court 1990-1997, Peter Mccormick
Birds Of A Feather: Alliances And Influences On The Lamer Court 1990-1997, Peter Mccormick
Osgoode Hall Law Journal
The Supreme Court does not always speak with a single voice; for many decisions, there are judges who register disagreement with the majority's legal reasoning or even with the outcome. Are there identifiable fault lines dividing a persisting "majority" and "minority?" Are there one or more "swing vote" judges who allow the minority some share of the decisions of the Court? And, given that the coalitions are shifting rather than rigid, which pairings of judges most frequently (or most seldom) hold together through these shifts? This paper examines the divided panel decisions of the first seven years of the Lamer …
R. V. R.D.S.: A Political Science Perspective, Jennifer Smith
R. V. R.D.S.: A Political Science Perspective, Jennifer Smith
Dalhousie Law Journal
Political scientists, including those who study Canadian government and politics, regard the judiciary as a component of the system of governance as a whole. They view it as an institution in relation to other institutions. Thus in The Judiciary in Canada: The Third Branch of Government, Peter Russell examines such issues as the structure of the judiciary in the federal system, the separation of powers and judicial independence, and the appointment, promotion and removal of judges.' As well, political scientists follow the development of the law itself, in areas of peculiar relevance to political life, like electoral law, or of …
Antidiscrimination And Affirmative Action Policies: Economic Efficiency And The Constitution, Edward M. Iacobucci
Antidiscrimination And Affirmative Action Policies: Economic Efficiency And The Constitution, Edward M. Iacobucci
Osgoode Hall Law Journal
This article assesses the economic efficiency of race-based antidiscrimination and affirmative action policies with a view to assessing relevant Canadian and American constitutional law. The article reviews economic arguments about why antidiscrimination laws may be efficient in addressing externalities, in hastening the exit of bigoted employers from the market, and in preventing the potentially inefficient use of race as a proxy for information; affirmative action may be efficient in accounting for differential signaling costs across race. The article concludes that economic analysis supports the approach in section 15 of the Charter which generally bans discriminatory government action, but recognizes that …
The Community-Based Management Of Fisheries In Atlantic Canada: A Legislative Proposal, Raymond Maccallum
The Community-Based Management Of Fisheries In Atlantic Canada: A Legislative Proposal, Raymond Maccallum
Dalhousie Law Journal
The crises in Canada's fisheries demonstrate the failure of Canadian fisheries management practices to achieve their public policy objectives. The author proposes that a new fisheries management regime, based on principles of community-based management, should be implemented to better ensure the sustainability of both the fisheries and fishing communities. A draft bill is provided to establish a specific framework around which to discuss those values and interests that should be promoted and protected by legislation, and how legislation can be used to establish and nurture a new community-based management regime.
Bad Attitude/S On Trial, Carl Stychin
Bad Attitude/S On Trial, Carl Stychin
Dalhousie Law Journal
Bad Attitude/s on Trial presents a "critical analysis of pornography in the context of contemporary Canada,"' with a particular focus on the impact of the Supreme Court of Canada's decision in R. v. Butler,2 and its reformulation of the basis of obscenity law. The book is co-written by four Canadian academics: Brenda Cossman, Shannon Bell, Lise Gotell, and Becki L. Ross. Each has contributed a separate section of the book, along with an introduction by Cossman and Bell. The result is a vital, theoretically sophisticated addition to the literature on pornography; a vivid documentation of the impact of obscenity law …
Salvaging The Welfare State?: The Prospects For Judicial Review Of The Canada Health & Social Transfer, Lorne Sossin
Salvaging The Welfare State?: The Prospects For Judicial Review Of The Canada Health & Social Transfer, Lorne Sossin
Dalhousie Law Journal
The Canadian Health and Social Transfer ("CHST"), which came into force on April 1, 1996, contains no national standards relating to the quality of social welfare. The goal of this new transfer was to promote provincial flexibility in the sphere of social policy. The author argues that this flexibility may undermine the core of the Canadian welfare state. Given the preoccupation of the provincial and federal governments with devolution, welfare recipients must turn to the judiciary to determine the "bottom line" of the welfare state. The author explores the various constitutional and administrative law grounds on which the federal government's …
The United States And Canada: A Comparison Of Corporate Nonrecognition Provisions, Catherine Brown, Christine Manolakas
The United States And Canada: A Comparison Of Corporate Nonrecognition Provisions, Catherine Brown, Christine Manolakas
Case Western Reserve Journal of International Law
No abstract provided.
Nafta Chapter 19 Or The Wto's Dispute Settlement Body: A Hobson's Choice For Canada, Michael S. Valihora
Nafta Chapter 19 Or The Wto's Dispute Settlement Body: A Hobson's Choice For Canada, Michael S. Valihora
Case Western Reserve Journal of International Law
perspective
Proceedings Of The Seminar
Maryland Journal of International Law
No abstract provided.
International Treaties And Constitutional Systems Of The United States, Mexico And Canada - Foreword: Proceedings Of The Seminar On International Treaties And Constitutional Systems Of The United States, Mexico And Canada: Laboring In The Shadow Of Regional Integration, Marley S. Weiss
Maryland Journal of International Law
No abstract provided.
One Step Forward, Two Steps Back : The Political And Institutional Dynamics Behind The Supreme Court Of Canada's Decisions In R. V. Sparrow, R V. Van Der Peet And Delgamuuku V. British Columbia, Jonathan Rudin
Journal of Law and Social Policy
No abstract provided.