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Articles 1 - 28 of 28
Full-Text Articles in Law
Devolution Or Disunion: The Constitution After Meech Lake, Calvin Massey
Devolution Or Disunion: The Constitution After Meech Lake, Calvin Massey
Osgoode Hall Law Journal
Professor Massey discusses the theoretical benefits of decentralized federalism and proposes constitutional changes to obtain those benefits and to respond to the disparate aspirations of the Canadian polity. He proposes that the provinces and federal government share concurrent authority over most powers, with provincial legislation paramount in cases of conflict. He suggests an empowered Senate, partially selected by the provinces and partially appointed by the federal government, aboriginal self-government, and territorial Senate representation. Finally, Massey proposes altering the constitutional amending formula to enhance public participation and facilitate amendment where unanimity is not critical.
A Bang And A Whimper: Changing Labour Law In Ontario, Eric M. Tucker, Judy Fudge, Harry J. Glasbeek
A Bang And A Whimper: Changing Labour Law In Ontario, Eric M. Tucker, Judy Fudge, Harry J. Glasbeek
Articles & Book Chapters
No abstract provided.
Aboriginal Sovereignty And Imperial Claims, Brian Slattery
Aboriginal Sovereignty And Imperial Claims, Brian Slattery
Osgoode Hall Law Journal
It is commonly assumed that Indigenous American nations had neither sovereignty in international law nor title to their territories when Europeans first arrived; North America was legally vacant and European powers could gain title to it simply by discovery, symbolic acts, occupation, or treaties among themselves. It follows, on this view, that current Indigenous claims to internal sovereignty or a "third order of government" have no historical basis. This paper argues that this viewpoint is misguided and cannot be justified either by reference to positive international law or basic principles of justice. The author's view is that Indigenous American nations …
Labouring Outside The Charter, David M. Beatty
Labouring Outside The Charter, David M. Beatty
Osgoode Hall Law Journal
In this essay, Professor Beatty reviews the leading Charter cases decided by the Supreme Court of Canada which consider the constitutionality of a variety of different labour laws. In reasoning and result, he finds that by and large these cases provide strong support for those legal scholars who are generally sceptical of the law and critical of the courts and who predicted that, even with the Charter, it was unlikely the Court would change the antipathy judges have historically displayed to the interests of workers and their associations. However, while these legal theorists may draw some comfort from these decisions …
Toward A Distinctive Canadian Corporate Law Regime, Ronald J. Daniels, Jeffrey G. Macintosh
Toward A Distinctive Canadian Corporate Law Regime, Ronald J. Daniels, Jeffrey G. Macintosh
Osgoode Hall Law Journal
In this article, the authors consider the impact of the institutional and market environment in which Canadian business operates on the structure of corporate and securities law. The authors argue that the linkages between markets and law have been neglected by scholars, judges, and regulators concerned with Canadian corporate and securities law, resulting in the adaption of approaches that are ill-suited to the Canadian environment. Canadian capital markets, for instance, are characterized by high levels of share ownership concentration, thin trading problems, intensive inter-corporate linkages, and possibly lower levels of efficiency. In sum, these factors make the problems occasioned by …
Mental Health Law And The Courts, Isabel Grant
Mental Health Law And The Courts, Isabel Grant
Osgoode Hall Law Journal
This paper presents an analysis of the early Charter cases dealing with civil commitment and compulsory treatment of individuals under provincial mental health legislation. The author describes two models for dealing with these issues: the paternalistic model and the social control model. She argues that Canadian courts have adopted a paternalistic approach and, as such, have failed to recognize the adversary relationship between the state and the individual which forms the basis of involuntary psychiatry. Courts have thus failed to develop the kinds of procedural protections that are available in the criminal law context. The author proposes that courts making …
Technology Transfer: Fighting Climate Change And Pursuing Equity Through The Transfer Of Energy Efficient And Renewable Energy Technologies, Craig M. Scott
Technology Transfer: Fighting Climate Change And Pursuing Equity Through The Transfer Of Energy Efficient And Renewable Energy Technologies, Craig M. Scott
All Papers
The present paper was prepared in the first half of 1991 in collaboration with three national sections of Friends of the Earth (Indonesia, Ghana and Canada). It was written by Craig Scott, with input and feedback from each section, and then edited by Robert Hornung. The purpose of the paper was to provide a discussion document of a “white paper” sort that could be used, as seen fit by Friends of the Earth and allied civil society organizations, in the advocacy efforts before, during and after either the official Earth Summit (of states) in Rio de Janeiro that led to …
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.
...Meech Lake To The Contrary Notwithstanding (Part Ii), Roderick A. Macdonald
...Meech Lake To The Contrary Notwithstanding (Part Ii), Roderick A. Macdonald
Osgoode Hall Law Journal
In this essay, which has been published in two parts, the author argues that the Meech Lake Accord was more than a hastily cobbled together political deal between the Prime Minister and ten provincial premiers. Despite the unattractive process by which the Meech Lake Accord was struck, and especially defended, despite the disingenuous character of the arguments most often advanced for its adoption, and despite its close connection with other aspects of the federal government's political agenda which many Canadians found suspicious, the Meech Lake Accord did respond to an important issue in post-patriation constitutionalism. A review of Canadian constitutional …
Racism And The Constitution: The Constitutional Fate Of British Columbia Anti-Asian Immigration Legislation, 1884-1909, Bruce Ryder
Osgoode Hall Law Journal
The author explores the values and forces that influenced judicial and federal cabinet decisions regarding the constitutional validity of over one hundred BC statutes discriminating against persons of the Japanese or Chinese race passed between 1872 and 1922. He argues that the interpretation of the constitutional division of powers was shaped by a racist ideology that viewed Asian immigrants as different from, and inferior to, European immigrants in all respects but one: their capacity for work. In this, the first part of his study, he focuses on the nature of the federal disallowance power and the reasons why it was …
Aboriginal Rights: The Dispossession Of The Métis, L. A. H. Chartrand
Aboriginal Rights: The Dispossession Of The Métis, L. A. H. Chartrand
Osgoode Hall Law Journal
Section 31 of the Manitoba Act 1870 provided for a land settlement scheme for the benefit of the families of the Métis residents, towards the extinguishment of the Indian title. There are now no Métis reserves in Manitoba; section 31 was implemented in a way which permitted the quick dispossession of the Métis in the nineteenth century. The writer argues that the mode of implementing section 31 was a breach of constitutional obligation. Reference is made to the subsequent history of the western Métis and comments are offered regarding the current significance of the Métis dispossession.
Rethinking Manner And Form: From Parliamentary Sovereignty To Constitutional Values, R. Elliot
Rethinking Manner And Form: From Parliamentary Sovereignty To Constitutional Values, R. Elliot
Osgoode Hall Law Journal
The issue of whether a legislative body in a democratic society can bind itself on matters relating to the procedures by which the legislation is to be enacted, amended or repealed has, to this point, tended to dissolve into the question of which of two contending formulations of the doctrine of parliamentary sovereignty one prefers, Dicey's traditional formulation or the "new view" by Jennings and others. The author argues that, regardless of how one formulates it, the doctrine of parliamentary sovereignty provides an unsound basis upon which to resolve this issue, and that an alternative basis is therefore needed. That …
...Meech Lake To The Contrary Notwithstanding (Part I), Roderick A. Macdonald
...Meech Lake To The Contrary Notwithstanding (Part I), Roderick A. Macdonald
Osgoode Hall Law Journal
In this essay, which will be published in two parts, the author argues that the Meech Lake Accord was more than a hastily cobbled together political deal between the Prime Minister and ten provincial premiers. Despite the unattractive process by which the Meech Lake Accord was struck, and especially defended, despite the disingenuous character of the arguments most often advanced for its adoption, and despite its close connection with other aspects of the federal government's political agenda which many Canadians found suspicious, the Meech Lake Accord did respond to an important issue in post-patriation constitutionalism. A review of Canadian constitutional …
Federalism And Comprehensive Environmental Reform: Seeing Beyond The Murky Medium, Rodney Northey
Federalism And Comprehensive Environmental Reform: Seeing Beyond The Murky Medium, Rodney Northey
Osgoode Hall Law Journal
This article examines the legal constraints that Canadian federalism places on comprehensive environmental reforms. Having specific regard for the Canadian Environmental Protection Act and its regulation of toxic substances, the article questions the ability of federal constitutional powers to support a broad scope for the statute. The article then examines two approaches to this problem. First, it examines an alternative vision of federalism which provides the federal government with broad environmental authority. Secondly, it examines various mechanisms of federal-provincial cooperation for their application to comprehensive environmental schemes. It concludes that these options provide enough scope to regulate environmental activities comprehensively …
Rights, Communities, And Tradition, Brian Slattery
Rights, Communities, And Tradition, Brian Slattery
Articles & Book Chapters
This paper argues that there is a close connection between basic human rights and communal bonds. It criticizes the philosophical views of Alan Gewirth and Alasdair MacIntyre, which in differing ways deny this connection.
Who's Zoomin' Who?: Comments On Liability For Pharmaceutical Products In Canada, Allan C. Hutchinson, Sue Hodgson
Who's Zoomin' Who?: Comments On Liability For Pharmaceutical Products In Canada, Allan C. Hutchinson, Sue Hodgson
Articles & Book Chapters
A collection of papers from the ninth Fulbright Colloquium held in September 1989. The papers compare legal practices and procedures in North America and Europe and the barriers to drug development caused by increased litigation in cases involving pharmaceutical products.
The Community Legal Clinic Movement In Ontario: Practice And Theory, Means And Ends, Michael Blazer
The Community Legal Clinic Movement In Ontario: Practice And Theory, Means And Ends, Michael Blazer
Journal of Law and Social Policy
No abstract provided.
Aboriginal Language Rights, Brian Slattery
Aboriginal Language Rights, Brian Slattery
Articles & Book Chapters
This paper considers several possible foundations for Indigenous language rights in the Constitution of Canada and argues for an approach that grounds these rights in inter-societal common law.
The Demise And Rise Of The Classical Paradigm In Canadian Federalism: Promoting Autonomy For The Provinces And The First Nations, Bruce Ryder
Articles & Book Chapters
The author explores the possibility of employing Canadian consitutional doctrine to develop a more flexible approach that would allow for greater provincial autonomy and First Nation self-government within the existing scheme of ss 91 and 92 jurisprudence. Canadian constitutional doctrine is first interpreted through the competing models of the classical and modem paradigms. The former emphasizes a sharp division of powers and has traditionally been used, the author argues, to invalidate legislation seen to interfere with the market economy. The modem paradigm, on the other hand, recognizes competing jurisdictions and has been used to uphold legislation focusing on morals. The …
Book Review: Essays In The History Of Canadian Law: Volume Iii: Nova Scotia, Edited By P. Girard And J. Phillips, Mary Jane Mossman
Book Review: Essays In The History Of Canadian Law: Volume Iii: Nova Scotia, Edited By P. Girard And J. Phillips, Mary Jane Mossman
Articles & Book Chapters
No abstract provided.
The Great Repression: Criminal Punishment In The Nineteen-Eighties, Michael Mandel
The Great Repression: Criminal Punishment In The Nineteen-Eighties, Michael Mandel
Articles & Book Chapters
No abstract provided.
The Greening Of Environmental Law, D. Paul Emond
The Greening Of Environmental Law, D. Paul Emond
Articles & Book Chapters
Environmental law in Canada has moved through three distinct stages. The first, beginning with the passage of the early environmental protection statutes, is described as symbolic regulation. "Regulation," because these laws did purport to regulate activities that had deleterious effects on the natural environment, and "symbolic" because the level and degree of regulation was largely symbolic. By the mid '70s and early '80s these laws had given way to two complementary developments. The first involved the introduction of environmental assessment (or audit) statutes and procedures; the second involved a strengthening and expanding of the traditional regulatory tools. The clear thrust …
Freedom Of Expression And Choice Of Language, Leslie Green
Freedom Of Expression And Choice Of Language, Leslie Green
Articles & Book Chapters
This paper argues that sound principles of freedom of expression protect an individual's choice of which language to speak. They do so, not to guarantee against mistranslation, but rather to ensure that speakers are able to reach their intended audiences and, more importantly, to allow for the expressive value of speaking a particular language as a symbol of ethnic or political identification. The example of Quebec's Charter of the French Language and the resulting litigation is considered in some detail.
Industry And Humanity Revisited: Everything Old Is New Again: Review Of Paul C. Weiler, Governing The Workplace, Eric Tucker
Industry And Humanity Revisited: Everything Old Is New Again: Review Of Paul C. Weiler, Governing The Workplace, Eric Tucker
Articles & Book Chapters
The decline of American unionism is now a well-documented phenomenon. Its causes and consequences, however, remain the subject of intense debate. Regardless of one’s view of this development, it clearly poses a challenge to the traditional techniques for the legal regulation of the employment relationship, and especially for state-sponsored collective bargaining which has been the centerpiece of American labour policy since the enactment of the Wagner Act in 1935. It is this crisis in American labour and employment law which Paul C. Weiler seeks to address in his new book, “Governing the Workplace: The Future of Labor and Employment Law”. …
The Principles Of Fundamental Justice: The Constitution And The Common Law, J. M. Evans
The Principles Of Fundamental Justice: The Constitution And The Common Law, J. M. Evans
Osgoode Hall Law Journal
This article examines the application of the principles of fundamental justice in section 7 of the Charter to administrative law, and in particular its relationship to non-constitutional grounds of judicial review. The author argues that in this area of the law the common law should generally be regarded as the source of the basic tenets of our legal system that section 7 has been said to embody. The author suggests that the traditional grounds of judicial review of administrative action represent the courts' accommodation of individual rights and the collective interest, and thus cover much the same ground as the …
The Uncertain Promise Of Law: Lessons From Bhopal, Jamie Cassels
The Uncertain Promise Of Law: Lessons From Bhopal, Jamie Cassels
Osgoode Hall Law Journal
This paper describes the course of the litigation following the Bhopal disaster. It begins with a brief description of the various failures in risk assessment and management that gave rise to the hazardous conditions in Bhopal, and then describes in more detail the resulting legal proceedings. Specifying a number of modest criteria against which the success of the litigation can be measured, the paper examines why traditional tort processes are unlikely to succeed in the case of mass hazards. The paper describes and analyzes a number of significant reforms forged by the Indian courts in response to the Bhopal disaster, …
Charter Challenges: A Test Case For Theories Of Law, W. J. Waluchow
Charter Challenges: A Test Case For Theories Of Law, W. J. Waluchow
Osgoode Hall Law Journal
The author's primary objective is to show that versions of legal positivism, according to which legal validity sometimes depends on moral validity (Inclusive Legal Positivism), are theoretically preferable to those forms of positivism (Exclusive Legal Positivism) which deny this possibility. The author attempts to substantiate this conclusion by demonstrating that Inclusive Legal Positivism provides a better theoretical account of challenges to legal validity based on a document like the Canadian Charter of Rights and Freedoms. His secondary aim is to show that the choice between Inclusive and Exclusive Legal Positivism can have important consequences for legal practice.
The Legal Protection Of Ideas, Grant Hammond
The Legal Protection Of Ideas, Grant Hammond
Osgoode Hall Law Journal
The received wisdom is that an idea as such is not legally protected. But now courts are embarking on a course which, at least in some respects, embraces the proposition that ideas will sometimes be protected. This essay suggests that these contemporary developments in the common law world should be regarded with disquiet. Courts are sanctioning the commercial exploitation of ideas in the face of an apparent desire of human beings to reduce every aspect of themselves to divisible, saleable commodities. Short term commercial gain is preferred to the timeless importance of ideas in the seamless web of humanity. This …