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Full-Text Articles in Law
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.
Losing The Struggle For Another Voice: The Case Of Family Law, Carol Smart
Losing The Struggle For Another Voice: The Case Of Family Law, Carol Smart
Dalhousie Law Journal
This paper is based on empirical work in progress concerning co-parenting and the ways in which mothers and fathers organize the care of children after separation. It deals with two foundational issues: Gilligan's concept of "another voice" and its congruence with recent developments in family law in the United Kingdom and otherdeveloped countries including Canada and the United States. The author concludes that the ethic of care incorporated in the British legislation and given some expression in the judicial system does not fully recognize two kinds of caring. There is caring about and caring for. The caring about of fathers …
A Lot Of Knowledge Is A Dangerous Thing: Will The Legal Profession Survive The Knowledge Explosion?, H W. Arthurs
A Lot Of Knowledge Is A Dangerous Thing: Will The Legal Profession Survive The Knowledge Explosion?, H W. Arthurs
Dalhousie Law Journal
Professor Arthurs argues that with the growth and diversification of knowledge, the common body of knowledge that underpins a unified profession is becoming more difficult to sustain. The desire to know, the need to know and the resources to know have divided lawyers into subprofessions, increasingly defined by the non-lawyers with whom they work and the clienteles they serve, bound togetherif at all-only by nostalgia and some residuum of self-interest.
We Can't Go On Together With Suspicious Minds: Judicial Bias And Racialized Perspective In R. V. R.D.S., Richard F. Devlin
We Can't Go On Together With Suspicious Minds: Judicial Bias And Racialized Perspective In R. V. R.D.S., Richard F. Devlin
Dalhousie Law Journal
In recent years it has been recognized that the Canadian judiciary has been drawn from only a relatively small cross section of the community, specifically privileged white males. As a result there have been calls for, and some action in pursuit of, appointment processes that are designed to diversify the bench in order to render it more inclusive. Gender and race are the two primary categories that are invoked as the benchmarks of diversity. While it would appear that numerically there seems to be some very modest progress towards the goal of achieving a more inclusive judiciary, significant qualitative, institutional …
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 …
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 …
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 …
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 …
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 …
Behind The Cod Curtain: A Perspective On The Political Economy Of The Atlantic Groundfish Fishery, D Leslie Burke, Leo Brander
Behind The Cod Curtain: A Perspective On The Political Economy Of The Atlantic Groundfish Fishery, D Leslie Burke, Leo Brander
Dalhousie Law Journal
This article addresses the collapse of Atlantic groundfish stocks in terms of its significant social and economic impact. How had so many people become dependent on this modest resource? What circumstances contributed to creating a hidden underemployed class in the fishing industry? The analysis adds to the thesis that public support of unproductive industry and income support systems underlie the current crisis, creating barriers to a viable future for the Atlantic Fishery. The authors draw on comparisons with the economy of the former Soviet Union where central planning of an economy based on state owned common property failed to harness …
Preface, Dawn A. Russell, Moira L. Mcconnell
Preface, Dawn A. Russell, Moira L. Mcconnell
Dalhousie Law Journal
As guest editors we are privileged to have the opportunity to create this special edition of the Dalhousie Law Journal. It is special for a number of reasons. First, the contributions reflect a specific decision on our part to explore the nature and meaning of events being experienced in Atlantic Canada's fishery from a variety of perspectives, of which law, traditionally privileged in law journals for its explanation of events, is perhaps the least important. Secondly the authors, many of whom are people who would not ordinarily write for legal publications, were given express carte blanche to contribute "think pieces" …
The Collapse Of The Northern Cod Fishery: A Historical Perspective, Graham D. Taylor
The Collapse Of The Northern Cod Fishery: A Historical Perspective, Graham D. Taylor
Dalhousie Law Journal
Although the collapse of Atlantic Canada's northern cod fishery may have been unexpected in terms of its rapidity, it is not an isolated or inexplicable event. This paper reviews the major factors affecting the cod fishery crisis (and other natural resource disasters of the 20th century) including: (1) the rapid development of technologies of resource exploitation; (2) the inadequacy of international measures to conserve and regulate the fishery; (3) limitations on scientific capabilities to manage the fishery; and (4) a cultural climate that emphasized economic growth above other values. The paper assesses the prospects for recovery of the fishery in …
Constructing' Fisheries Management: A Values Perspective, David Ralph Matthews
Constructing' Fisheries Management: A Values Perspective, David Ralph Matthews
Dalhousie Law Journal
This paper applies a "social constructionist" position to an understanding of the nature of fisheries management policy. It argues that both the way in which we view "nature" and the way in which we view such natural resources of the fishery are "socially constructed" in terms of particular value orientations and the interests that these represent. In particular, it examines the value orientations related to the social construction of the fishery as a biological, social, or economic resource, as well as the social constructions involved in regarding the fishery as either common property or a common heritage. It also argues …
Lost Moorings: Offshore Fishing Families Coping With The Fisheries Crisis, Marian Binkley
Lost Moorings: Offshore Fishing Families Coping With The Fisheries Crisis, Marian Binkley
Dalhousie Law Journal
The fisheries crisis has severely affected the families of offshore fishermen. In Nova Scotia, offshore fishermen normally spent ten to fourteen days continuously at sea and as little as forty-eight hours on shore between voyages. The fishermen and their families adopted strategies to cope with that work schedule. This paper focuses on how these previously beneficial adaptations conflict with the new situation these families now face when many men have been laid off or had their work reduced.
To Manage Quotas Or Manage Fisheries? The Root Cause Of Mismanagement Of Canada's Groundfish Fishery, Peter Underwood
To Manage Quotas Or Manage Fisheries? The Root Cause Of Mismanagement Of Canada's Groundfish Fishery, Peter Underwood
Dalhousie Law Journal
The collapse of the Atlantic groundfish fishery is the result of a complex combination of factors including scientific uncertainties, overfishing, poor results in capacity control, and ecological conditions. It is argued that the root cause of the collapse is that the foundation of groundfish management since 1977 has been single species quotas rather than a sound set of principles for fisheries resource husbandry. The implications of this for science, management, and the fish are discussed and a principle based management structure is proposed.
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 …
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 …