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Full-Text Articles in Law
Provincial Fiduciary Obligations To First Nations: The Nexus Between Governmental Power And Responsibility, Leonard I. Rotman
Provincial Fiduciary Obligations To First Nations: The Nexus Between Governmental Power And Responsibility, Leonard I. Rotman
Osgoode Hall Law Journal
The Canadian Crown's fiduciary duty to First Nations is entrenched in Canadian Aboriginal rights jurisprudence. More than ten years after the Supreme Court of Canada's decision in Guerin, however, yet to be ascertained are the various emanations of the Crown bound by that duty. This paper argues that both federal and provincial Crowns are properly bound by fiduciary obligations to First Nations. It also suggests that the basis of this assertion may be found in existing jurisprudence, the Canadian Constitution, the spirit and intent of Indian treaties, and in Aboriginal understandings of "the Crown."
Joint Custody As Norm: Solomon Revisited, Alison Harvison Young
Joint Custody As Norm: Solomon Revisited, Alison Harvison Young
Osgoode Hall Law Journal
Most jurisdictions in Canada and the United States have, to a greater or lesser extent, endorsed the notion of joint custody in recent years. The author suggests that-the move toward joint custody has resulted from a combination of two major factors: the notion of parental equality and the application of the best interests of the child test. The growing prominence of equal parental rights has created a strong temptation to approach custody as a Solomonic exercise in dividing the children equally between those with equal rights over them. The indeterminacy of the best interests test may readily encourage custody determinations …
Fundamental (In)Justice: The Deportation Of Long-Term Residents From Canada, Russell P. Cohen
Fundamental (In)Justice: The Deportation Of Long-Term Residents From Canada, Russell P. Cohen
Osgoode Hall Law Journal
Under the Immigration Act, permanent residents and illegal immigrants may, for a number of reasons, be deported from Canada for life. Even after residing in this country for many years, immigrants without the formality of citizenship enjoy only a limited right to remain. The author argues that deportation violates an immigrant's right to life, liberty and security of the person under section 7 of the Charter. And where that person has established fundamental connections with Canada, through family relations, education, employment, culture, etc., deportation, moreover, is not in accordance with the principles of fundamental justice. In determining the principles of …
The Evolution Of Coordinate Precedential Authority In Canada: Interprovincial Citations Of Judicial Authority, 1922-92, Peter Mccormick
The Evolution Of Coordinate Precedential Authority In Canada: Interprovincial Citations Of Judicial Authority, 1922-92, Peter Mccormick
Osgoode Hall Law Journal
It comes as no surprise that the provincial courts of appeal frequently cite as authority the decisions of the Supreme Court of Canada or the prior decisions of the court of appeal itself. However, the citation practices of these courts also show (emerging before, and persisting after, 1970) a striking reliance on their counterparts in other provinces. Both the simple existence of this interprovincial conversation and the details of its provenance-such as the dominance of Ontario, the persistent isolation of Quebec, the recent emergence of British Columbia-constitute an important and distinctive element of judicial decision making in Canada.
Simple Calculations To Reduce Litigation Costs In Personal Injury Cases: Additional Empirical Support For The Offset Rule, R. A. L. Carter, John P. Palmer
Simple Calculations To Reduce Litigation Costs In Personal Injury Cases: Additional Empirical Support For The Offset Rule, R. A. L. Carter, John P. Palmer
Osgoode Hall Law Journal
This article demonstrates that if the nominal rate of interest equals the growth rate of nominal earnings, then a strong case can be made for calculating lump-sum damage awards by using the offset rule, i.e., by simply multiplying the annual loss by the number of years the loss is expected to continue. An examination of the Canadian data not only supports the offset rule, but also suggests that plaintiffs are being systematically undercompensated by rules currently in use.
Subordination Agreements, Bruce Macdougall
Subordination Agreements, Bruce Macdougall
Osgoode Hall Law Journal
Subordination agreements are not novel concepts in Canadian law, but the PPSAs ensure their more widespread use. Subordination agreements usefully provide flexibility to creditors and consequently permit enhanced access to credit for debtors. The adaptability of the subordination agreement presents difficult legal problems, the most important of which relates to characterization of their legal nature. Other problems include the resolution of multiple subordinations and the question of the enforceability of subordination agreements in bankruptcy. This paper explores those issues and cautions against undue restrictions being placed on either the availability or the characterization of subordination agreements.
Les Représentations De «Société Libre Et Démocratique» A La Cour Dickson : La Rhétorique Dans Le Discours Judiciaire Canadien, Andree Lajoie, Regine Robin, Sebastien Grammond, Henry Quillinan, Louise Rolland, Stéphane Perrault, Armelle Chitrit
Les Représentations De «Société Libre Et Démocratique» A La Cour Dickson : La Rhétorique Dans Le Discours Judiciaire Canadien, Andree Lajoie, Regine Robin, Sebastien Grammond, Henry Quillinan, Louise Rolland, Stéphane Perrault, Armelle Chitrit
Osgoode Hall Law Journal
The expression "free and democratic society" is the focus of our research, which sheds light on the contribution of the Supreme Court to the constitutionalization of this concept. Leaving aside the institutional and psycho-social factors, the study confirms the hypothesis that the interpretation of this expression will vary (1) according to the conceptions formerly held by the individual judges and (2) with respect to the factors favoured by a rhetorical Perelman-like analysis, which considers the factual and judicial context and the expectations of both the universal and specific audiences. At the Supreme Court level, the expectations of the latter should …
"Artificial Conscience": Professional Elites And Professional Discipline From 1920 To 1950, James A. Smith
"Artificial Conscience": Professional Elites And Professional Discipline From 1920 To 1950, James A. Smith
Osgoode Hall Law Journal
Recent historical studies of the British and American Bars have identified their professional elites' willingness to define and enforce a concept of legal ethics which restricted less fortunate members' ability to practice and less fortunate individuals' ability to obtain legal assistance. This essay applies the thesis to the Canadian Bar's and especially the Law Society of Upper Canada's use of their increasing control over professional discipline from 1920 to 1950. Identifying similar trends in the Canadian profession's evolution, while emphasizing effects rather than intentions, it makes similar conclusions about the Canadian professional elite's use of such powers during this period.
Military Justice: From Oxymoron To Aspiration, Janet Walker
Military Justice: From Oxymoron To Aspiration, Janet Walker
Osgoode Hall Law Journal
The mandate for Charter-based judicial review of military law is now in its second decade. Comparative analysis of the relationship between military law and the civilian judiciary in common law countries reveals that Canadian courts benefitting from this mandate are so placed within the constitutional structure as to be uniquely able to engage in substantive review of the adherence to the principles of fundamental justice by Canadian courts martial. Accordingly, the question of the jurisdiction of military tribunals which has formed the focal point internationally for judicial review is of passing significance in Canada. The yet critical issues of civilian …