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Articles 1 - 30 of 58
Full-Text Articles in Law
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 …
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 …
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 …
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 …
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 …
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 …
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. …
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.
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 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 …
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.
Offshore Employment And Occupational Health And Safety Issues, John Macpherson
Offshore Employment And Occupational Health And Safety Issues, John Macpherson
Dalhousie Law Journal
In Canada responsibility for regulating labour relations, employment and occupational health and safety matters is shared between the federal and provincial governments. In this paper the author describes the complexities of the legislative regime governing the Nova Scotia offshore. Specifically, he looks at section 157 of the Nova Scotia Accord Act (Canada), certification of workers offshore, and occupational health and safety legislation.
Union Certification On Offshore Production Installations, Gregory Anthony
Union Certification On Offshore Production Installations, Gregory Anthony
Dalhousie Law Journal
The author describes the jurisdictional and legislative regimes governing labour relations in the Newfoundland and Labrador offshore. After providing an overview of the provincial certification process, he recounts the process of certification of the Hibernia platform and reviews some of the legal issues raised therefrom.
Key Issues In The New Regime Of Occupational Health And Safety: The Right To Refuse Work And Directors' And Officers' Liability, Jim Thistle, Matthew Clarke, Joshua Martin
Key Issues In The New Regime Of Occupational Health And Safety: The Right To Refuse Work And Directors' And Officers' Liability, Jim Thistle, Matthew Clarke, Joshua Martin
Dalhousie Law Journal
This article examines the existing and proposed occupational health and safety regulatory regimes for oil and gas operations offshore Nova Scotia and Newfoundland and Labrador The article provides historical context for both the existing and the proposed regimes. Two specific areas of concern are analysed: the right to refuse work and directors' and officers' liability. For each issue, the author offers observations on the potential impacts that the implementation of proposed legislation will have on offshore oil and gas operations in these jurisdictions
Effective And Efficient Regulation In Nova Scotia, J Marshall Burgess
Effective And Efficient Regulation In Nova Scotia, J Marshall Burgess
Dalhousie Law Journal
Effective and efficient regulation of the oil and gas industry on the East Coast of Canada is a top priority of the federal and provincial governments. Ever since oil and gas exploration and development began in this region, stakeholders and others have urged regulators to address and remedy this issue. This paper reviews how governments have responded first in the onshore context, and then in the offshore. Issues that regulators need to address are identified and legislative, regulatory, and administrative changes which have been made and are proposed are reviewed. Finally, the author reflects on possible future developments and the …
Liability For Damage To The Marine Environment From Ships, Michael White
Liability For Damage To The Marine Environment From Ships, Michael White
Dalhousie Law Journal
Marine pollution damage from ships is not a major problem in Australian jurisdictions, but there are regular incidents. The Australian law relating to marine pollution from ships closely follows the international conventions. Australia is a party to almost all of the relevant IMO conventions and, as is required for common law countries, the domestic legislation to give effect to them needs to be put in place. This has been done for the most part by the Commonwealth, the states and the Northern Territory as Australia is a federation. The Commonwealth and the states have established adequate enforcement resources for the …
Australasian Law And Canadian Statutes In The Nineteenth Century: A Study Of The Movement Of Colonial Legislation Between Jurisdictions, Jeremy Finn
Dalhousie Law Journal
This paper considers the use between 1850 and 1900 by Anglo-Canadian legislatures of legislative precedents from the Australian and New Zealand colonies and argues that while a wide range of Australasian laws were considered by Canadian legislators, the most significant Australasian influences are to be found in mining law, electoral and constitutional law and land law The paper goes on to explore, by use of archival, parliamentary and published materials, the processes by which Canadian legislators acquired their knowledge of these Australasian initiatives. While governmental and institutional channels (including the Colonial Office) played a significant part in the transmission of …
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 …
Oceans Act: Uncharted Seas For Offshore Development In Atlantic Canada?, Aldo Chircop, Bruce A. Marchand
Oceans Act: Uncharted Seas For Offshore Development In Atlantic Canada?, Aldo Chircop, Bruce A. Marchand
Dalhousie Law Journal
Canada's Oceans Act, now five years old, is a ground-breaking piece of legislation in marine law which provides a framework for the development of a national oceans strategy, integrated planning and management, and institutional responsibilities. In this article, the authors review the Act and its issues and argue that the uncertainties found there provide opportunities for participants in the Atlantic Canada offshore oil and gas industry to influence the development of an oceans policy, legal and institutional framework that accommodates all interests.
Property Ownership By Married Women In Victorian Ontario, Susan Ingram, Kris Inwood
Property Ownership By Married Women In Victorian Ontario, Susan Ingram, Kris Inwood
Dalhousie Law Journal
This paper reports patterns of property holding by women and men in late nineteenth-century Ontario. We focus on the town of Guelph immediately before and after legislation in 1872 and 1884 which permitted married women to hold property in their own name. The female-held share of all property and the female share of all owners in the town increased sharply. The gains were made by married women, and even more strongly by single women and widows. However, there was little or no shift of property in nearby rural townships. We argue that an induced change in inheritance practice amplified the …
The Personal Information Protection And Electronic Documents Act: A Lost Opportunity To Democratize Canada's "Technological Society", Tina Piper
Dalhousie Law Journal
Bill C-6, more recently known as the Personal Information Protection and Electronic Documents Act, is promoted by the Canadian government as privacy legislation to protect Canadians' personal information. This paper explores that characterization and concludes that it is inaccurate and misleading. The problems that motivated a response by Parliament are the proliferation and commercial importance of personal information, concerns Canadians have about its uncontrolled use by the private sector and the inadequacy of existing law to address those concerns. However, the Act has not responded to these problems. There are several reasons for this, primarily the disproportionate and antidemocratic importance …