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Full-Text Articles in Law
Relations Of Force And Relations Of Justice: The Emergence Of Normative Community Between Colonists And Aboriginal Peoples, Jeremy Webber
Relations Of Force And Relations Of Justice: The Emergence Of Normative Community Between Colonists And Aboriginal Peoples, Jeremy Webber
Osgoode Hall Law Journal
This paper argues that Aboriginal rights are best understood as the product of cross-cultural interaction-not, as is usually supposed, the result of some antecedent body of law (English, international, or Aboriginal). Aboriginal rights are therefore intercommunal in origin. The paper does describe the process by which this body of law emerged, but its primary vocation is theoretical, concerned with the following questions: How can a normative community emerge in the presence of profound cultural divisions? How can relations of justice emerge in a context dominated by power and coercion? How does moral reasoning draw upon the factual relations of the …
The Supreme Court In Flames: Fire Insurance Decisions After Kosmopoulos, Reuben A. Hasson
The Supreme Court In Flames: Fire Insurance Decisions After Kosmopoulos, Reuben A. Hasson
Osgoode Hall Law Journal
This article examines three recent Supreme Court of Canada decisions on fire insurance after the historic Kosmopoulos decision. In all three cases, the author finds a distressing lack of concern with relevant statutory provisions, policy arguments, and precedent. Responsibility for this deplorable state of affairs must be shared between the Court and counsel. Insurance law is a very complex body of law, deserving as much care as that of, say, the law of the Charter.
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 …
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.
Is The Pearson Airport Legislation Unconstitutional?: The Rule Of Law As A Limit On Contract Repudiation By Government, Patrick J. Monahan
Is The Pearson Airport Legislation Unconstitutional?: The Rule Of Law As A Limit On Contract Repudiation By Government, Patrick J. Monahan
Osgoode Hall Law Journal
It has long been assumed that Parliament has unlimited power to enact legislation cancelling valid contracts and denying compensation to any persons affected. This paper challenges that conventional wisdom. The author argues that the principle of the rule of law requires that governments be accountable in the ordinary courts for wrongful actions of government officials. This principle is undermined if government is absolved from any liability for breach of a fairly bargained and valid contract. Thus, legislation purporting to abrogate contracts and deny compensation is invalid, since it violates the implied limits on legislative authority associated with the rule of …
A Tale Of Two Fora: Fresh Challenges In Defending Multijurisdictional Claims, Janet Walker
A Tale Of Two Fora: Fresh Challenges In Defending Multijurisdictional Claims, Janet Walker
Osgoode Hall Law Journal
This article analyzes recent developments in the Canadian common law of forum non conveniens as it is invoked in applications for stays and injunctions. It reviews the findings of the Supreme Court of Canada in Amchem and the Court of Appeal for Ontario in Frymer as they relate to the onus in stay applications, the significance of the plaintiffs loss of advantage and the special considerations applying to injunctions. The possibility of rationalizing the interprovincial application of the doctrine brought about by the Supreme Court's recent choice of law ruling in Tolofson is considered as are specific examples of the …
Strict Products Liability Revisited, Denis W. Boivin
Strict Products Liability Revisited, Denis W. Boivin
Osgoode Hall Law Journal
This article examines the relationship between two concepts found throughout the law of products liability, defect and negligence. Traditional tort doctrine contends that, although they are sometimes used interchangeably, both concepts refer to quite distinct matters: the state of a product, on the one hand, and the nature of a manufacturer's conduct in supplying its products, on the other. The hallmark distinction between a standard of fault and one of strict liability, it is said, is that only the former requires proof of unreasonable care, whereas both require proof of a defect. Relying on developments in the United States and …
Second Chances: Bill C-72 And The Charter, Isabel Grant
Second Chances: Bill C-72 And The Charter, Isabel Grant
Osgoode Hall Law Journal
This paper examines the legislative response to the Supreme Court of Canada's decision in R. v. Daviault. The author argues that Bill C-72, which limits the defence of extreme intoxication, is constitutional because of its strong underpinnings in equality. The author reviews the statistics on violence against women and the role of intoxication in that violence to illustrate why the defence of intoxication raises issues of sex equality. The author argues that a court assessing the constitutionality of Bill C-72 should consider this strong foundation in equality and the fact that the Bill is the result of a careful balancing …
Back To The Future!: Is The "New" Rigid Choice Of Law Rule For Interprovincial Torts Constitutionally Mandated?, Jean-Gabriel Castel
Back To The Future!: Is The "New" Rigid Choice Of Law Rule For Interprovincial Torts Constitutionally Mandated?, Jean-Gabriel Castel
Osgoode Hall Law Journal
In the last few years, the Supreme Court of Canada has held that private international law rules applicable to the jurisdiction of Canadian courts and the recognition and enforcement of the judgments of sister provinces must conform to the demands of territoriality and the principles of order and fairness which flow from the existence of an implied Full Faith and Credit clause in the Canadian Constitution. More recently, the Court has decided that, with respect to choice of law, the ancient lex loci delicti rule is applicable to both interprovincial and foreign torts and that it admits no exceptions in …
The Law And Politics Of Quebec Secession, Patrick J. Monahan
The Law And Politics Of Quebec Secession, Patrick J. Monahan
Osgoode Hall Law Journal
This paper considers the various legal issues that would arise in the context of Quebec's secession from Canada, and attempts to situate these issues politically. The author argues that, under the current constitutional amending formula, Quebec secession would require the support of the federal Parliament as well as the unanimous consent of the provinces; he also suggests that it is extremely unlikely that this level of support would be attained. The paper goes on to explore the possibility of Quebec seceding from Canada through a unilateral declaration of independence (UDI), suggesting that the success or failure of a UDI would …