Open Access. Powered by Scholars. Published by Universities.®
- Publication Year
- Publication Type
Articles 31 - 38 of 38
Full-Text Articles in Law
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 …
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 …
Protecting Rights And Promoting Democracy: Judicial Review Under Section 1 Of The Charter, Martha Jackman
Protecting Rights And Promoting Democracy: Judicial Review Under Section 1 Of The Charter, Martha Jackman
Osgoode Hall Law Journal
The author argues that, under section 1 of the Charter, the courts must weigh carefully the democratic potential of rights guarantees against the democratic quality of government decisions which undermine those rights. The article points to the Egan and Eldridge cases as examples of decisions in which the willingness to uphold rights violations under section 1, in the name of deference to the legislature, actually undermines democratic values. The article examines the RIR-MacDonald decision as a starting point for a section 1 analysis which identifies the characteristics of government decisionmaking that must be present if rights violations are to be …
Accommodating Equality In The Unionized Workplace, Katherine Swinton
Accommodating Equality In The Unionized Workplace, Katherine Swinton
Osgoode Hall Law Journal
This article explores the appropriate relationship between human rights and collective bargaining laws through an examination of the Supreme Court of Canada's jurisprudence on the duty to accommodate. While collective bargaining can be an important force to promote equality for disadvantaged groups, resistance to changing the terms of collective agreements to accommodate those groups can arise, especially when other employees' seniority rights are affected. The emerging jurisprudence suggests that seniority rights will be respected in many situations, especially in layoffs, but the article outlines circumstances in which accommodation will be necessary to vindicate equality rights.
Filling The "Charter Gap": Human Rights Codes In The Private Sector, Gavin W. Anderson
Filling The "Charter Gap": Human Rights Codes In The Private Sector, Gavin W. Anderson
Osgoode Hall Law Journal
The author considers the capacity of the federal and provincial human rights codes to deal with human rights abuses in the private sector. He compares the social democratic potential of the codes, with the classical liberalism of Charter jurisprudence, which shields the private sector from constitutional scrutiny. Four case studies are used: the definition of "offered to the public," mandatory retirement, the rights of the poor, and systemic discrimination. It is concluded that there are important similarities between the codes and the Charter, both at an institutional design and a doctrinal level. As a result, the codes have been unable …
Police Implementation Of Supreme Court Of Canada Charter Decisions: An Empirical Study, Kathryn Moore
Police Implementation Of Supreme Court Of Canada Charter Decisions: An Empirical Study, Kathryn Moore
Osgoode Hall Law Journal
Little empirical research has been done on the Charter's impact on the public policy process. This paper presents the results of an empirical research study designed to fill that gap. The study examined the manner in which a municipal police force and the RCMP implemented changes to procedures following two Supreme Court of Canada Charter decisions. The paper concludes that, while steps have been taken to develop a process by which Supreme Court decisions are implemented, the process would be improved if one body were allocated responsibility for the provision of interim information to the police.
Gender Discrimination In The Common Law Of Domicile And The Application Of The Canadian Charter Of Rights And Freedoms, Annalise Acorn
Gender Discrimination In The Common Law Of Domicile And The Application Of The Canadian Charter Of Rights And Freedoms, Annalise Acorn
Osgoode Hall Law Journal
A married woman must take her husband's domicile at common law. This rule exists in five of Canada's provinces. It is argued that the rule violates the right to equality. It is further argued that, notwithstanding the Supreme Court's decision in Dolphin Delivery, the Charter must apply to common law rules governing the relationship between husband and wife. Such rules impose a status on the parties. Therefore, a commitment to respect for the autonomous choice of individuals does not support the conclusion that the rules should be beyond constitutional review.
Discrimination And Its Justification: Coping With Equality Rights Under The Charter, Richard Moon
Discrimination And Its Justification: Coping With Equality Rights Under The Charter, Richard Moon
Osgoode Hall Law Journal
The article examines and appraises conventional methods of interpreting the section 15 equality rights including a comparison of equality rights under the American Constitution. It determines that the most suitable interpretation is one which prohibits "constructive discrimination." Further, the analysis of section 15 finds a built-in limitation - the right against invidious discrimination - making recourse to section 1 unnecessary. But review of constructive discrimination and its justification is constrained by the adjudicative model and the state action doctrine. In the final analysis, the article challenges us to rethink our classic liberal conceptions of equality by looking less at invidious …