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Articles 1 - 15 of 15
Full-Text Articles in Law
Strategic Behaviour And Leadership Patterns Of Modern Chief Justices, C. L. Ostberg, Matthew E. Wetstein
Strategic Behaviour And Leadership Patterns Of Modern Chief Justices, C. L. Ostberg, Matthew E. Wetstein
Osgoode Hall Law Journal
This study uses strategic behaviour, leadership change, and feminist theories to examine patterns of judicial activity by the three post-Charter chief justices of the Supreme Court of Canada. Building on prior scholarship, we use various methods to examine patterns of majority voting, dissenting activity, opinion writing, ideological voting, and panel size across the 1973 to 2014 period. While Chief Justices Lamer and Dickson exhibited clear patterns of task leadership, we find strong evidence of strategic change by Chief Justice McLachlin following her elevation to chief. She moved from a prolific dissenter as a puisne justice to a chief who exhibited …
Residual Discretion: The Concept Of Forum Of Necessity Under The Court Jurisdiction And Proceedings Transfer Act, Michael Sobkin
Residual Discretion: The Concept Of Forum Of Necessity Under The Court Jurisdiction And Proceedings Transfer Act, Michael Sobkin
Osgoode Hall Law Journal
Under section 6 of the CJPTA, a court may hear a case for which it lacks territorial competence under the statute if it is satisfied that: (1) there is no other court outside the province in which the plaintiff can commence the proceeding; or (2) the commencement of the proceeding outside the province cannot reasonably be required. Courts in provinces that have not enacted the CJPTA have grafted a similar discretion on to the common law rules of jurisdiction. This article seeks to determine the intentions of the drafters of the CJPTA in providing for this power and to discuss …
Cross-Border Transfers Of Court Proceedings, Vaughan Black
Cross-Border Transfers Of Court Proceedings, Vaughan Black
Osgoode Hall Law Journal
The Court Jurisdiction and Proceedings Transfer Act might easily have been two statutes rather than one. There could have been a pair of uniform acts, one delineating the territorial competence of the provinces’ superior courts and the other implementing a regime for the cross-border transfer of court proceedings. After all, these two matters are neither logically interdependent nor especially tightly linked. Part 3 of the CJPTA, dealing with transfers of proceedings, is not confined to lawsuits where the initial court takes jurisdiction under Part 2. It applies regardless of whether the initial court bases its jurisdiction on the CJPTA or …
The Court Jurisdiction And Proceedings Transfer Act And The Hague Conference’S Judgments And Jurisdiction Projects, Joost Blom
Osgoode Hall Law Journal
The Court Jurisdiction and Proceedings Transfer Act (CJPTA) codifies the substantive law of jurisdiction in British Columbia, Nova Scotia, and Saskatchewan. One of the questions that may be posed by the future of the CJPTA is how the jurisdictional system that it enacts would function in relation to two potential international conventions that are contemplated by the Hague Conference on Private International Law. One, a convention on the enforcement of judgments, is in an advanced stage of negotiation and may well be adopted by the Hague Conference. It deals with jurisdiction indirectly, by defining jurisdictional standards or “filters” that must …
Judicial Jurisdiction In Canada: The Cjpta—A Decade Of Progress, Janet Walker
Judicial Jurisdiction In Canada: The Cjpta—A Decade Of Progress, Janet Walker
Osgoode Hall Law Journal
In 2016, the Court Jurisdiction and Proceedings Transfer Act (“CJPTA”) marked its tenth year in force. Promulgated by the Uniform Law Conference of Canada, and adopted in British Columbia, Saskatchewan and Nova Scotia, the CJPTA was developed to clarify and advance the law of judicial jurisdiction. In a symposium hosted by Osgoode Hall Law School, ten leading scholars were invited to present papers on specific questions in order to assess the promise of the CJPTA to meet the needs of Canadians in the years ahead and to provide leadership for the law in other parts of Canada. This article provides …
Six Of One, Half A Dozen Of The Other? Jurisdiction In Common Law Canada, Stephen G.A. Pitel
Six Of One, Half A Dozen Of The Other? Jurisdiction In Common Law Canada, Stephen G.A. Pitel
Osgoode Hall Law Journal
This short article considers the central differences in the law on taking jurisdiction in civil and commercial disputes between those common law provinces that have implemented a statute on jurisdiction (British Columbia, Nova Scotia, and Saskatchewan) and those common law provinces that rely on the common law (Alberta, Ontario, and others). It focuses on the distinction between presence and ordinary residence, the role and analysis of presumptive connecting factors for taking jurisdiction, and issues related to immovable property.
General Jurisdiction Over Corporate Defendants Under The Cjpta: Consistent With International Standards?, Catherine Walsh
General Jurisdiction Over Corporate Defendants Under The Cjpta: Consistent With International Standards?, Catherine Walsh
Osgoode Hall Law Journal
“General jurisdiction” refers to a court’s competence to adjudicate disputes arising out of a defendant’s activities anywhere in the world. Absent consent or submission, international instruments reserve general jurisdiction over corporations to the states in which the corporation has its registered office, centre of administration, or principal place of business. The bases of general jurisdiction under the Court Jurisdiction and Proceedings Transfer Act (CJPTA) are far broader and include simply having a place of business in the forum or even registering to carry on business there. This article locates the conceptual roots of the CJPTA approach in the traditional common …
Assessing The Impact Of Unilingualism At The Supreme Court Of Canada: Panel Composition, Assertiveness, Caseload, And Deference, Jean-Christophe Bédard-Rubin, Tiago Rubin
Assessing The Impact Of Unilingualism At The Supreme Court Of Canada: Panel Composition, Assertiveness, Caseload, And Deference, Jean-Christophe Bédard-Rubin, Tiago Rubin
Osgoode Hall Law Journal
This paper is a first empirical foray in the debate concerning mandatory bilingualism for Supreme Court judges in Canada. The paper summarizes the main arguments, discusses the framing of bilingualism as a “legal” or an “identity” requirement, and uses empirical data to assess whether unilingualism has had an impact on four dimensions of the decision-making process at the Supreme Court of Canada: panel composition, assertiveness, individual caseloads and deference towards lower courts by unilingual and bilingual judges. Our results suggest that there is a correlation between the fluency in French and the first three elements but that there is no …
Has The Cjpta Readied Canada For The Hague Choice Of Court Convention?, Geneviève Saumier
Has The Cjpta Readied Canada For The Hague Choice Of Court Convention?, Geneviève Saumier
Osgoode Hall Law Journal
This paper examines whether the Court Jurisdiction and Proceedings Transfer Act has readied Canada to adopt the 2005 Hague Choice of Court Convention. Reviewing the Hague Convention as well as previous and current law and cases on forum selection clauses in common law Canada, including the very recent Supreme Court of Canada decision in Douez v Facebook, yields two conclusions. First, there are existing interpretive challenges flowing from gaps in the CJPTA with respect to jurisdictional clauses that need to be addressed. Second, the principles governing forum selection clauses in Canada are largely consistent with those put forward in the …
Three Objections To Forum Of Necessity: Global Access To Justice, International Criminal Law, And Proper Party, Sagi Peari
Osgoode Hall Law Journal
In civil procedure, the plaintiff is the one who initiates the litigation process. In which forum can he or she initiate this process? In very general terms, the Canadian rules of judicial jurisdiction provide the plaintiff with three options for jurisdiction acquisition. First, the jurisdiction can be acquired based on explicit agreement between the plaintiff and the defendant as to the identity of the forum to adjudicate the case. Second, the plaintiff can initiate the litigation in the forum that has the so-called “real and substantial connection” between it and the parties’ specific interaction under the given ground of liability …
The Use Of American Precedents In Canadian Courts, Gerard V. La Forest
The Use Of American Precedents In Canadian Courts, Gerard V. La Forest
Maine Law Review
In 1849, the Supreme Court of New Brunswick faced the issue of whether there was a public right to float logs on navigable streams. Not surprisingly, no general right was found in the English common law as large scale floating of lumber down rivers did not exist in England. “Yet in a young country like Canada, the right to float logs and timber was an economic necessity in many areas and some device had to be found to make the activity legal.” To find that legal device, the New Brunswick court turned to the United States, specifically to Maine, and …
Justice As Harmony: The Distinct Resonance Of Chief Justice Beverley Mclachlin's Juridical Genius, Marcus Moore
Justice As Harmony: The Distinct Resonance Of Chief Justice Beverley Mclachlin's Juridical Genius, Marcus Moore
All Faculty Publications
Chief Justice McLachlin’s juridical work has earned special praise, but what specifically distinguishes it among the work of other leading jurists has proven elusive for lawyers and social scientists to identify. My experience as a law clerk to McLachlin CJC suggested a distinct approach never comprehensively articulated, but intuitively well-known and widely-emulated among those in her sphere of influence. Drawing on the Chief Justice’s public lectures—where she often explained and offered deeper reflection on the McLachlin Court’s defining jurisprudence—I make the case in this article that at the heart of that approach is a quality best described as the pursuit …
Extradition And Trial Delays: Recent Developments (And Lessons?) From Canada, Laura Ellyson
Extradition And Trial Delays: Recent Developments (And Lessons?) From Canada, Laura Ellyson
Articles, Book Chapters, & Popular Press
Extradition – the formal rendition of criminal fugitives between states – is well-known to be a time-consuming process that often has impacts, minor or major, on the ability of states to complete prosecution in a timely manner. Thus, the extradition process can sometimes be at odds with the right to trial within a reasonable time, which is part of the overall package of fair trial rights enshrined in international human rights law. In Canada, this right is implemented by paragraph 11(b) of the Canadian Charter of Rights and Freedoms. In recent years Canadian courts have developed a series of principles …
Introduction: Canada's Chief Justice: Beverley Mclachlin's Legacy Of Law And Leadership, Marcus Moore
Introduction: Canada's Chief Justice: Beverley Mclachlin's Legacy Of Law And Leadership, Marcus Moore
All Faculty Publications
Summarizes the legacy of law and leadership of Beverley McLachlin, the longest-serving Chief Justice of the Supreme Court of Canada (2000-2017), and first female Chief Justice.
Comparative Approaches To Constitutional History, Jamal Greene, Yvonne Tew
Comparative Approaches To Constitutional History, Jamal Greene, Yvonne Tew
Faculty Scholarship
An historical approach to constitutional interpretation draws upon original intentions or understandings of the meaning or application of a constitutional provision. Comparing the ways in which courts in different jurisdictions use history is a complex exercise. In recent years, academic and judicial discussion of “originalism” has obscured both the global prevalence of resorting to historical materials as an interpretive resource and the impressive diversity of approaches courts may take to deploying those materials. This chapter seeks, in Section B, to develop a basic taxonomy of historical approaches. Section C explores in greater depth the practices of eight jurisdictions with constitutional …