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Articles 1 - 30 of 51
Full-Text Articles in Law
Public Institutions As Defamation Plaintiffs, Hilary Young
Public Institutions As Defamation Plaintiffs, Hilary Young
Dalhousie Law Journal
This article focuses on public institutions' ability to sue in defamation. It has a descriptive and a normative section. The descriptive part begins with an analysis of the relevant law in several common law jurisdictions. The state of Canadian law is then examined. The normative section considers which public institutions should be prohibited from suing in defamation and why Whereas some case law suggests that a prohibition on public institution defamation actions should be grounded in the public importance of speech about such institutions, this article takes the position that that is unprincipled. Instead, the focus is on factors such …
The Contract Of Employment At The Supreme Court Of Canada: Employee Protection And The Presumption Of Employer Freedom, Gillian Demeyere
The Contract Of Employment At The Supreme Court Of Canada: Employee Protection And The Presumption Of Employer Freedom, Gillian Demeyere
Dalhousie Law Journal
This article critically examines the Supreme Court of Canada's treatment of the contract of employment in its wrongful dismissal jurisprudence over the last 25 years, with the aim of challenging the view that only by exempting the contract of employment from the ordinary workings of contract doctrine or by resorting to public policy considerations can the common law of dismissal provide adequate protection for employees. The Court's jurisprudence reveals a commitment to what this paper calls the presumption of employer freedom, a view of the contract of employment which has its origins in the status-based master and servant relationship and …
Thresholds Of Actionable Mental Harm In Negligence: A Policy-Based Appraisal, Louise Bélanger-Hardy
Thresholds Of Actionable Mental Harm In Negligence: A Policy-Based Appraisal, Louise Bélanger-Hardy
Dalhousie Law Journal
Common law courts, in Canada and elsewhere, currently insist on proof of a recognizable psychiatric illness (RPI) before granting damages to plaintiffs seeking compensation for stand-alone mental harm caused by negligent acts. This article argues that the time has come to revisit this well-entrenched principle. The inquiry focuses specifically on the policy concerns underlying the current rule. As a first step, policy considerations for and against limiting the extent of actionable mental harm are canvassed and assessed. The author concludes that some of the perceived advantages of the RPI rule, in particular predictability,are debatable and that insistence on the traditional …
"Academic Concerns"-Caring About Conversation In Canadian Common Law, Karen Crawley, Shauna Van Praagh
"Academic Concerns"-Caring About Conversation In Canadian Common Law, Karen Crawley, Shauna Van Praagh
Dalhousie Law Journal
The Supreme Court of Canada, in its 2001 decision in Cooper v Hobart, refined the test in Canadian common law for establishing a duty of care in the tort of negligence. Although aware of the complexities and ongoing challenges of the "duty of care" concept, the Supreme Court openly labelled these concerns as "academic." This article confirms these concerns as "academic," but insists that this label underlines their centrality not only to an understanding of the tort of negligence but to the nature and form of common law reasoning. By pointing to errors in the Supreme Court of Canada's judgment-errors …
Inherent Jurisdiction And Its Application By Nova Scotiacourts: Metaphysical, Historical Or Pragmatic?, William H. Charles
Inherent Jurisdiction And Its Application By Nova Scotiacourts: Metaphysical, Historical Or Pragmatic?, William H. Charles
Dalhousie Law Journal
The author explores the concept of inherent jurisdiction in the context of its use and application by the courts of Nova Scotia. A general in-depth discussion ofthe nature and source(s) of the concept is followed by an examination of three recent Court of Appeal decisions in an effort to determine that court's understanding of inherent jurisdiction. The Court of Appeal's understanding and sense of the concept is then contrasted with its use and application by the trial courts of Nova Scotia over a period of 150 years. The approach of the two levels of court to inherent jurisdiction is compared …
Parents, Children, And The Law Of Assault, Hamish Stewart
Parents, Children, And The Law Of Assault, Hamish Stewart
Dalhousie Law Journal
The debate concerning the constitutionality and the possible repeal of s. 43 of the Criminal Code, the so-called "spanking" provision, has raised an important issue: when a parent touches a child without the child's consent, under what conditions is the parent's conduct an assault? Supporters of the'repeal of s. 43 have suggested that parents are protected from inappropriate prosecutions by the exercise of prosecutorial discretion and by the common law defences of de minimis non curat lex and necessity But prosecutorial discretion is not a suitable substitute for a proper definition of the scope of criminal liability,and the defences ofde …
Acouple Of Generations Ahead Of Popular Demand': The First National Law Program At Mcgill University, 1918-1924, John Hobbins
Acouple Of Generations Ahead Of Popular Demand': The First National Law Program At Mcgill University, 1918-1924, John Hobbins
Dalhousie Law Journal
Following the First World War, Dean Robert Warden Lee introduced some radical changes to the curriculum at the McGill Law Faculty Three-year courses were instituted leading to either a civil law degree or a common law degree, and a four-year course in which both degrees could be obtained. The program was extremely controversial, running into opposition within the part-time faculty the Montreal legal community and the bar societies of several provinces. Difficulties in obtaining professional accreditation for the common law graduates led to a decline in enrollment, and the common law option was discontinued in 1926. Lee's vision of a …
Counterconstitutionalism, Richard Albert
Counterconstitutionalism, Richard Albert
Dalhousie Law Journal
Democratic constitutionalism has often erected a high barrierseparating the citizen from the state. This is paradoxical because the very promise of constitutionalism is to produce precisely the opposite result: to bind the citizen to the state, and to create and cultivate a constitutional culture that is anchored in participatory democracy. The author has a name for this paradoxical state of affairs: counterconstitutionalism. In this article, the author introduces and illustrates the conceptof counterconstitutionalism with reference to billsof rights in constitutional states representing civil and common law traditions on four continents.
Retribution, Restoration, And White-Collar Crime, Katherine Beaty Chiste
Retribution, Restoration, And White-Collar Crime, Katherine Beaty Chiste
Dalhousie Law Journal
A "restorative" approach to criminality and conflict has been proposed in a number of common law jurisdictions in a variety of legal contexts, both civil and criminal, with an interesting exception: white-collar crime, which is discussedin an almost exclusively retributive vocabulary. This paper explores what a specifically restorative response to white-collar crime might look like, a response which above all else would seek to heal the harm the crime has done. In particular,the author looks at the possibilities for voluntary participation of victims and offenders; broad stakeholder inclusion and a focus on future relations rather than past offences-all necessaryparts of …
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.
Utility And Rights In Common Law Reasoning: Rebalancing Private Law Through Constitutionalization, Hugh Collins
Utility And Rights In Common Law Reasoning: Rebalancing Private Law Through Constitutionalization, Hugh Collins
Dalhousie Law Journal
In the evolution of private law, legal reasoning has always confronted the fundamental problem of reconciling private interests with collective goods. Philosophers analyse this problem ofjustice in terms ofprotecting individual rights whilst at the same time maximizing utility or general welfare. The private law of tort, contract, and property rights that emerged in the nineteenth century provided a fortress of protections for individual rights, but the consequences for collective welfare were quickly found wanting. These consequences were addressed by the welfare state, regulation, and the separation of new spheres ofprivate law such as consumer law and labour lawfrom mainstream doctrine, …
Indigenous Rights Wronged: Extinguishing Native Title In New Zealand, Geoffrey Wg Leane
Indigenous Rights Wronged: Extinguishing Native Title In New Zealand, Geoffrey Wg Leane
Dalhousie Law Journal
This article is an account of a recent controversy in New Zealand regarding the common law native title rights of indigenous Maori people to a possible title in certain areas of the foreshore and seabed. In overturning its own precedent the New Zealand Court of Appeal had opened the door to such claims. However, the legislature, overwhelmingly supported by the majority non-Maori population, moved quickly to extinguish the inchoate rights with no guarantee of fair compensation. The lack of any constitutional protection ofcivil and political rights, and the absence of alternative institutional checks and balances, allowed the legislation to proceed …
The Property Status Of Fishing Licences, David G. Henley
The Property Status Of Fishing Licences, David G. Henley
Dalhousie Law Journal
The property status of a fishing licence has for a long time been undecided. The judicial decisions have varied significantly on whether a fishing licence is property at common law or pursuant to various statutory definitions. The significance ofthe issue lies primarily in the financial arena. It is most often the case that the preponderance of the value in a fishing enterprise lies with the fishing licence rather than in the vessel. It is not uncommon for a lobster licence to approach one million dollars in value.' When quota is allocated to groundfish licences, the value of the package can …
Tribunals Imitating Courts - Foolish Flattery Or Sound Policy?, David Mullan
Tribunals Imitating Courts - Foolish Flattery Or Sound Policy?, David Mullan
Dalhousie Law Journal
In his 2004 Horace E Read Memorial Lecture, David Mullan assesses the impact of the "due process explosion." To what extent has the evolution of Canadian law (both statutory and common) in the domain of procedural fairness been responsible for the phenomenon of excessive judicialization of the administrative process? Has the increase in the number of decision-makers subject to the obligation of procedural fairness and the growth in the parallels between tribunal and court processes affected adversely the interests of the administrative justice system and the public that it is meant to serve? The author suggests that there is a …
Canadian Law Teachers In The 1930s: "When The World Was Turned Upside Down", Richard Risk
Canadian Law Teachers In The 1930s: "When The World Was Turned Upside Down", Richard Risk
Dalhousie Law Journal
During the 1930s. scholars in the Canadian common law schools introduced fundamental changes in ways of thinking about law, changes that made one of them. John Willis, say 'the world was turned upside down." These scholars rejected the past, especially the English legal thought of the late nineteenth century Instead, they were influenced by changes in the United States, which began early in the century, and by the emerging regulatory and welfare state. In private law subjects, Caesar Wright was central, using American ideas to challenge the dominant English authority, especially in his writing about torts. In public law subjects, …
Statutory Liens In The Atlantic Canada Offshore Area, Robert Carmichael
Statutory Liens In The Atlantic Canada Offshore Area, Robert Carmichael
Dalhousie Law Journal
This article will examine statutory and common law liens in relation to assets used in oil and gas exploration and production in areas offshore Nova Scotia and Newfoundland and Labrador It considers the applicable constitutional regime, the maritime law and the interrelationship between maritime law, federal law, and provincial law.
The Law Of Options, Keith Evans
The Law Of Options, Keith Evans
Dalhousie Law Journal
Little attention is devoted to the law of options in major Canadian texts on contract law or in periodical literature. One might, therefore, assume that the law in this area is well settled and that few major cases come before the courts. However, a review of appellate decisions in Canada indicates significant judicial interest in the topic which would challenge those assumptions. In fact, appellate courts in various common law jurisdictions continue to struggle with many doctrinal issues related to this specialized type of contract. This article provides a comprehensive review of the law of options in Canada, and identifies …
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 …
Drainage Issues In The Atlantic Canada Offshore Petroleum Industry, Richard A. Neufeld, Robert G. Grant
Drainage Issues In The Atlantic Canada Offshore Petroleum Industry, Richard A. Neufeld, Robert G. Grant
Dalhousie Law Journal
In this article, the authors examine the issue of drainage in the Atlantic Canada offshore. The offshore statutory regimes for production of oil and gas, together with the common law, are analyzed for their approaches to dealing with drainage issues. In addition, the law of drainage in Alberta is comprehensively reviewed to provide some guidance as to how the law of drainage may develop in Atlantic Canada.
La Doctrine Et L'Interprétation Du Code Civil, Stéphane Beaulac
La Doctrine Et L'Interprétation Du Code Civil, Stéphane Beaulac
Dalhousie Law Journal
Les Éditions Thémis publiaient en 1997 un livre intitulé La doctrine et l'interprétation du Code civil, par Me Sylvie Parent. Cette étude constitue le fruit de ses recherches et de sa réflection effectuées dans le cadre de ses travaux de maîtrise en droit à l'Université de Montreal; son directeur de thèse était le professeur Pieffe-André Côté, éminent auteur dans le domaine de l'interprétation des lois. C'est à ce dernier qu'est revenu l'honneur de rédiger la préface de cet ouvrage. Il n'a point hésité, à juste titre d'ailleurs, d'ajouter le nom de Me Parent à la liste d'auteurs contemporains ayant contribué, …
Lessons From Away:An Interdisciplinary Collectionof Studies Exploring Whatcanada May Learn From Othercountries' Experiences Withhealth Care Reforms, Colleen M. Flood
Lessons From Away:An Interdisciplinary Collectionof Studies Exploring Whatcanada May Learn From Othercountries' Experiences Withhealth Care Reforms, Colleen M. Flood
Dalhousie Law Journal
The Canadian health care system is considered a shining example of what it is to be Canadian: to aspire to social justice goals and to achieve those goals at a reasonable cost.' Canadians take great pride in that, by any measure, their health care system is superior to the piece-meal, expensive, and unjust U.S. health care system.
Guilty Plea Revocation, Constitutional Waiver, And The Charter: "A Guilty Plea Is Not A Trap", John Dr Craig
Guilty Plea Revocation, Constitutional Waiver, And The Charter: "A Guilty Plea Is Not A Trap", John Dr Craig
Dalhousie Law Journal
The entry of a guilty plea has significant constitutional ramifications. It relieves the Crown of its obligation to prove the elements of an offence beyond a reasonable doubt and constitutes a waiver by the accused of various rights including the right to put the Crown's case to the test of a trial, the right to confront Crown witnesses through cross-examination and the right to remain silent in relation to the determination of legal guilt. In light of these constitutional dimensions, the article considers an issue which has received little academic attention: the revocation of a guiltyplea. The authorassesses the existing …
Interprovincial Enforcement Of Maintenance Orders: New Principles, New Approaches, Lynn Walsworth
Interprovincial Enforcement Of Maintenance Orders: New Principles, New Approaches, Lynn Walsworth
Dalhousie Law Journal
The author points out that the existing legislative scheme for interprovincial enforcement of maintenance orders is premised on common law rules which have nowbeen rejected by the Supreme Court of Canada. Those same Supreme Court decisions have opened the door for new legislative approaches to intra-Canadian enforcement of these obligations. This paper surveys a variety of new responses based on models in other federal states and on conventions implementing international maintenance enforcement schemes. It examines the pros and cons of each and concludes that any one of them would be superior to the scheme now in force in Canada.
A Note On The Nineteenth Century Law Of Seduction, J M. Bumsted, Wendy J. Owen
A Note On The Nineteenth Century Law Of Seduction, J M. Bumsted, Wendy J. Owen
Dalhousie Law Journal
The authors examine Prince Edward Island's Seduction Act of 1876, which departed from the model of seduction legislation of other Canadian provinces. Based on study of the limited surviving court records they note a number of ways in which the tort of seduction operated differently in nineteenth century Prince Edward Island than it did elsewhere
Mélanges Jean Beetz, Teresa Scassa
Mélanges Jean Beetz, Teresa Scassa
Dalhousie Law Journal
Melanges Jean Beetz is a collection of essays honouring the late Supreme Court of Canadajudge who died in 1991 after a lengthy battle with illness. The timing of the publication of the book, some five years after his death, places the work within what is perhaps a fitting social and political context. The constitutional crises that have plagued this country continue in what seems to be a period of heightened alienation between Quebec and the rest of Canada. An exploration of the contribution of Justice Beetz to the jurisprudence of the Supreme Court of Canada may be of assistance in …
Franchising In The Shadow Of Contract Law: A New Fidelity For Business Relations, Richard Haigh
Franchising In The Shadow Of Contract Law: A New Fidelity For Business Relations, Richard Haigh
Dalhousie Law Journal
The institution of franchising has experienced a remarkable growth in North America in recent years. This has provoked a variety of legislative and judicial responses. This article examines the reasons behind the rise of franchising. It proceeds to examine the principal models of statutory regulation of franchise arrangements, and also the range of common law doctrines which courts have brought to bear on disputes arising out of such contracts. The author points out deficiencies in the existing models of franchise regulation and, drawing on legal responses to family disputes, proposes an alternative.
"Running Hard To Stand Still": The Paradox Of Family Law Reform, Mary Jane Mossman
"Running Hard To Stand Still": The Paradox Of Family Law Reform, Mary Jane Mossman
Dalhousie Law Journal
This essay explores the paradox of family law reform in common law Canada, focusing particularly on reforms relating to family property and inter-spousal support in the decades after the first federal Divorce Act of 1968. The paradox of this law reform activity is well-expressed in Carol Smart's colourful phrase about the (lack of) impact of law reform for women in the United Kingdom. In her view, while it is inaccurate to say that nothing has been done to improve the position of women, it is equally impossible to demonstrate that there has been any linear development of progressive legislation; in …
Siberian Tigers And Exotic Birds: Ronald Dworkin's Map Of The Sacred, Hester Lessard
Siberian Tigers And Exotic Birds: Ronald Dworkin's Map Of The Sacred, Hester Lessard
Dalhousie Law Journal
At its most abstract, Life's Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom is a meditation on the nature of individual freedom. However, as author Ronald Dworkin explains at the end of Chapter One, he believes in doing philosophy in much the same way common law jurists believe in doing law-from the inside out-that is, by starting with a concrete problem and then proceeding to the more general questions raised by that problem. According to Dworkin, this generates a theory that is appropriately tailored to the issue, "Savile Row" so to speak, rather than "Seventh Avenue," and thus a …
Negligence, Strict Liability, And Manufacturer Failure To Warn: On Fitting Round Pegs In A Square Hole, Denis W. Boivin
Negligence, Strict Liability, And Manufacturer Failure To Warn: On Fitting Round Pegs In A Square Hole, Denis W. Boivin
Dalhousie Law Journal
In the common law provinces of Canada, it is generally recognized that a plaintiff in a products liability action in tort must prove four elements in order to succeed: first, that the product contains a defect traceable either to its manufacture, to its design, orto its warnings or instructions; second, that the defendant manufacturer was somehow negligent in connection with this defect; third, that there is some causal connection between the manufacturer's negligence and the damages suffered by the plaintiff; and fourth, that these damages are such as to give rise to compensation in law. In the United States, in …
Discrimination, The Right To Seek Redress And The Common Law: A Century-Old Debate, Béatrice Vizkelety
Discrimination, The Right To Seek Redress And The Common Law: A Century-Old Debate, Béatrice Vizkelety
Dalhousie Law Journal
Does discrimination law have anything in common with the common law? This question, which may have been reworded from time to time in deference to the age in which it was raised, is one which has recurred with remarkable tenacity throughout most of this century. It is also a question which continues, despite initial impressions, to be relevant to the manner in which adjudicatots interpret and apply anti-discrimination legislation today.