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Articles 1 - 30 of 80
Full-Text Articles in Law
Re-Thinking The Process For Administering Oaths And Affirmations, Colton Fehr
Re-Thinking The Process For Administering Oaths And Affirmations, Colton Fehr
Dalhousie Law Journal
Courts around the world require witnesses to swear an oath to a religious deity or affirm to tell the truth before providing testimony. It is widely thought that such a process has the potential to give rise to unnecessary bias against witnesses based on their religious beliefs or lack thereof. Scholars have offered two main prescriptions to remedy this problem: (i) abolish the oath and have all witnesses promise to tell the truth; or (ii) require oath-swearing witnesses to invoke a non-specific reference to God. The former proposal is problematic as it rests on the unproven assertion that giving an …
Duets, Not Solos: The Mclachlin Court's Co-Authorship Legacy, Peter Mccormick
Duets, Not Solos: The Mclachlin Court's Co-Authorship Legacy, Peter Mccormick
Dalhousie Law Journal
This article explores the recentphenomenon of the formal co-authorship of Supreme Court decisions. It begins with a short history of the practice, primarily in the closing years of the Lamer Court but expanding steadily under McLachlin. A closer investigation reveals two critically important dimensions: first, the practice is skewed toward the Court's more important decisions (measured in terms of subject matter legal complexity, interveners, and subsequent citation); and second, its diffusion across the Court's membership refutes the possibility that it simply reinforces persisting cleavages. This new practice represents a more overtly collegial format directed to the Court's more significant decisions. …
Case Comment: Heller V. Uber Technologies Inc., Peter Quon
Case Comment: Heller V. Uber Technologies Inc., Peter Quon
Dalhousie Law Journal
Canadian courts have accepted mandatory arbitration clauses as presumptively enforceable unless there is legislation that precludes their application. This position was confirmed by the Supreme Court in Seidel v. TEL US CommunicationsInc. In Heller v. Uber Technologies Inc., the Ontario Court of Appeal considered an arbitration clause in the context of legislation following the approach in Seidel, but the Court also undertook an unconscionability analysis. Reviewing a motion that was granted to stay a class action proceeding in favour of an arbitration clause, the Court unanimously held that the clause was invalid on two separate grounds. First, the arbitration clause …
Foreseeably Unclear: The Meaning Of The "Reasonably Foreseeable" Criterion For Access To Medical Assistance In Dying In Canada, Jocelyn Downie, Kate Scallion
Foreseeably Unclear: The Meaning Of The "Reasonably Foreseeable" Criterion For Access To Medical Assistance In Dying In Canada, Jocelyn Downie, Kate Scallion
Dalhousie Law Journal
Canada's medical assistance in dying legislation contains the eligibility criterion "naturaldeath has become reasonably foreseeable." The phrase "reasonably foreseeable" is unfamiliar and unclear. As a result of ongoing confusion about its meaning, there is reason to be concerned that under- or over-inclusive interpretations of the phrase are adversely affecting access to MAID. With critical interests at stake (eg access to MAiD and potential criminal liability), it is essential that the meaning of the phrase be clarified. Furthermore, the meaning of "reasonably foreseeable" will be at issue in the Charter challenges to the federal MAiD legislation currently before the courts in …
Betterment, Michael G. Pratt
Betterment, Michael G. Pratt
Dalhousie Law Journal
When property is wrongfully damaged the cost of reinstatement is often the appropriate measure of damages. Reinstatement by repair or replacement is, however often possible only by replacing old materials with new materials that enhance the value of the property, generating "betterment." In such cases courts are faced with a choice whether to abide the betterment and award the cost of reinstatement, or reduce damages to offset the betterment. Examples of both responses to betterment are found in the cases, but no clear principle has been articulated by Canadian courts as to when one is to be preferred over the …
Legal Barriers To Age Discrimination In Hiring Complaints, Pnina Alon-Shenker
Legal Barriers To Age Discrimination In Hiring Complaints, Pnina Alon-Shenker
Dalhousie Law Journal
Studies have shown that senior workers endure longer spells of unemployment than their younger counterparts. Age discrimination has been identified as one of the main obstacles to reemployment. This article critically examines how Canadian anti-age discrimination law has responded to the contemporary challenges experienced by senior job seekers. It articulates several difficulties in our existing age discrimination legal framework by analyzing and contrasting social science literature on the present labour market experience of senior job applicants with human rights tribunal and court decisions in hiring complaints. It concludes by sketching a preliminary set of workable proposals for change that derives …
Nom De Plume: Who Writes The Supreme Court's "By The Court" Judgments?, Peter Mccormick
Nom De Plume: Who Writes The Supreme Court's "By The Court" Judgments?, Peter Mccormick
Dalhousie Law Journal
For several dozen of its major decisions, the Supreme Court in recent decades has adopted an unusual judgment style-the unanimous and anonymous "By the Court" format. Unlike judgments attributed to specific justices, "By the Court" presents an unusual and impersonal institutionalist face. But what is happening behind the fagade? Are these deeply collegial products with the actual drafting divided between some (or most, or all) of the justices? Is it "business as usual" which for major judgments involves rotation between the senior judges? Or is it simply a pseudonym for the Chief Justice writing alone in an unusually emphatic way? …
Canadian Perspectives On Animals And The Law, Sabrina Tremblay-Huet
Canadian Perspectives On Animals And The Law, Sabrina Tremblay-Huet
Dalhousie Law Journal
It is commonplace to affirm that animal law is much more developed in the United States than in Canada; animal abuser registries are being implemented,' animal law degrees are offered,2 and prosecutions ofanimal abusers occur frequently,3 for example. However, the tide is changing in Canada as well, the legal norms and case law becoming increasingly aligned with the social norms surrounding the treatment of animals. An example ofthis is the recent adoption by Quebec ofa new status for animals in its Civil Code, the Loi visant 1'amiliorationde la situationjuridiquede l'animal, adopted on December 4th, 2015.' There are also new challenges …
Digital Evidence And The Adversarial System, Colton Fehr
Digital Evidence And The Adversarial System, Colton Fehr
Canadian Journal of Law and Technology
Scholars have observed that the adversarial system tends to provide courts with only a ‘‘small snapshot of the technological whole,” which in turn forms the record upon which broader legal pronouncements occur. As a result, they contend that legislatures should be more proactive in making rules governing complex and rapidly advancing technologies, and that courts must show deference to these rules. Other scholars retort that, in practice, legislatures often fail to update obviously flawed and outdated privacy provisions. Whether due to special interest influence, majoritarian dislike of criminal suspects, or other institutional constraints, legislative responses have been wanting. As such, …
Identifying Pathways To And Experiences Of Street Involvementthrough Case Law, Suzanne Bouclin
Identifying Pathways To And Experiences Of Street Involvementthrough Case Law, Suzanne Bouclin
Dalhousie Law Journal
This research explores what can be learned about the experiences of streetinvolved people by reading cases that deal with people characterized on the record as "homeless." The author builds on existing empirical research by reading a large body of cases to discuss pathways to and experiences of street involvement. She proceeds to more closely explore cases regarding people (1) who are identified in the cases as homeless, and (2) find themselves before the courts for having engaged in income generating activities. The author argues that cases constitute knowledge about street involvement in ways that may take us beyond what we …
Unlimited Liability In The Modern Context: An Examination Of Shareholder Liability In Nova Scotia Unlimited Liability Companies, Sarah P. Bradley
Unlimited Liability In The Modern Context: An Examination Of Shareholder Liability In Nova Scotia Unlimited Liability Companies, Sarah P. Bradley
Dalhousie Law Journal
For over 30 years, unlimited liability companies have been ubiquitous in USCanadian M&A transactions. Typically interposed between a US parent company and a Canadian operating company, these entities quietly function to make such structures more tax efficient. They are facilitated by Nova Scotia's venerable Companies Act, which has allowed for the incorporation of corporations with unlimited liability for over a hundred years. Unlimited liability of shareholders is the singular defining characteristic of the ULC, but the precise nature of ULC shareholder liability was apparently regarded as something of a technicality and rarely, if ever, closely examined in the professional or …
Self-Represented Litigants, Active Adjudication And The Perception Of Bias: Issues In Administrative Law, Michelle Flaherty
Self-Represented Litigants, Active Adjudication And The Perception Of Bias: Issues In Administrative Law, Michelle Flaherty
Dalhousie Law Journal
This paper advocates for a more active role for adjudicators, one in which they provide direction to parties and actively shape the hearing process. Active adjudication can be an important access to justice tool. Without some direction and assistance from the adjudicator, growing numbers of self-represented litigants cannot meaningfully access administrative justice. Importantly, however, as the role of the adjudicator shifts, so too must our understanding of the notion of impartiality If it is unfair to expect self-represented litigants to navigate the hearing process without adjudicative assistance and direction, it is also unfair to insist on a vision of impartiality …
Judgment And Opportunity: Decision Assignment On The Mclachlin Court, Peter Mccormick
Judgment And Opportunity: Decision Assignment On The Mclachlin Court, Peter Mccormick
Dalhousie Law Journal
The workload of the Supreme Court of Canada is shared among the Court's nine members, but is this sharing equal with respect to the writing of judgments? A simple count does not provide an answer because not all cases are equally important. This paper develops an objective measure of case importance-the Legal Complexity Index-and applies it to the cases decided by the McLachlin Court. It demonstrates that judgment-delivery opportunities for significant cases have not been shared equally, either overall or with respect to any of the major subdivisions of the caseload. Some judges enjoy the spotlight, while others are relegated …
Thin-Skull Plaintiffs, Socio-Cultural "Abnormalities" And The Dangers Of An Objective Test For Hypersensitivity, Eugene C. Lim
Thin-Skull Plaintiffs, Socio-Cultural "Abnormalities" And The Dangers Of An Objective Test For Hypersensitivity, Eugene C. Lim
Dalhousie Law Journal
The extent to which "hypersensitivity" can serve as a legal basis for demanding additional compensation has always been a controversial issue in tort law. A key challenge facing courts lies in determining how the "thin-skull rule," traditionally related to physical conditions that predispose an individual to additional injury, can be applied to claims from "hypersensitive" plaintiffs citing personality-linked vulnerabilities of a religious, socio-cultural, or psychiatric nature. This article critically evaluates the viability of the "ordinary-fortitude test" adopted by the Supreme Court of Canada in Mustapha v. Culligan, and discusses the relative merits of a "multi-factorial test" in determining the admissibility …
The Judicial Regulation Of Lawyers In Canada, Amy Salyzyn
The Judicial Regulation Of Lawyers In Canada, Amy Salyzyn
Dalhousie Law Journal
The question of whether Canadian lawyers ought to be trusted to govern themselves has been repeatedly raised by the public, policy-makers and the academy over the past several decades. The legal profession has responded on a number of fronts, adopting what has been characterized as a "regime of defensive self-regulation." The analysis in this article complements and complicates this account by arguing that, alongside the profession's efforts at defensive self-regulation, there has been a steady stream of aggressive judicial regulation. The central argument of this article is two-fold: first, that courts have come to occupy an increasingly active role as …
Labour Rights As Human Rights: Turning Slogans Into Legal Claims, Judy Fudge
Labour Rights As Human Rights: Turning Slogans Into Legal Claims, Judy Fudge
Dalhousie Law Journal
What does it mean to say that labour rights are human rights? What is the role of the courts in transforming a political manifesto into a legal claim? The answers to these questions are developed in three parts. The first places the rights to organize, to bargain collectively, and to strike in the social and political context in which they are claimed, contested, and recognized. The second part examines what it means to say that labour rights are human rights with an eye to teasing out the significance ofthis characterization. Third, the role of the courts when it comes to …
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 …
Searching And Seizing After 9/11: Developing And Applying Empirical Methodology To Measure Judicial Output Inthe Supreme Court's Section 8 Jurisprudence, Richard Jochelson, Michael Weinrath, Melaine Janelle Murchison
Searching And Seizing After 9/11: Developing And Applying Empirical Methodology To Measure Judicial Output Inthe Supreme Court's Section 8 Jurisprudence, Richard Jochelson, Michael Weinrath, Melaine Janelle Murchison
Dalhousie Law Journal
In 2005, Margit Cohn and Mordechai Kremnitzer created a multidimensional model to measure judicial discourse inherent in the decision making of constitutional courts. Their model set out multiple indicia bywhich to measure whether the court acted within proper constitutional constraints in order to determine the extent to which a court rendered a decision that was activist or restrained. This study attempts to operationalize that model. We use this model to analyze changes in interpretation of search and seizure law under section 8 after the enactment of the Canadian Charter of Rights and Freedoms at the Supreme Court of Canada. The …
The Justiciability Of Climate Change: Acomparison Of Us And Canadian Approaches, Hugh Wilkins
The Justiciability Of Climate Change: Acomparison Of Us And Canadian Approaches, Hugh Wilkins
Dalhousie Law Journal
Climate change-related disputes, which often include novel, complex,or politically sensitive matters, have experienced a mixed reception by the courts. Defendants both in Canada and the United States have raised the issue of justiciabilitythe question of whether a matter is of the quality or state of being appropriate or suitable for review by a court-with some success in attempts to have these cases summarily dismissed. The author reviews the types ofclimate change cases that have been launched, examines the US and Canadian laws of justiciability analyzes the.paths in which the caselaw regarding justiciability in these countries is headed, and suggests how …
Collective Bargaining In The Shadow Of The Charter Cathedral: Union Strategies In A Post B.C. Health World, Michael Macneil
Collective Bargaining In The Shadow Of The Charter Cathedral: Union Strategies In A Post B.C. Health World, Michael Macneil
Dalhousie Law Journal
For the first twenty-five years after the Canadian Charter of Rights and Freedoms was enacted, it appeared that it would have little impact on Canadian labour laws. The Supreme Court of Canada took the view that the guarantee of freedom of association in the Charter did not include a right to strike and did notprovide protection for collective bargaining. Common law rules regulating picketing did not come within the scope of the Charter's rules on freedom of expression. Academic commentators were divided on whether this was a good or a bad thing, some espousing the hope that the Charter could …
Employee Pension Rights And The False Promise Of Trust Law, Elizabeth Shilton
Employee Pension Rights And The False Promise Of Trust Law, Elizabeth Shilton
Dalhousie Law Journal
This article explores the jurisprudence of the Supreme Court of Canada on employment pension trusts. I argue that the Court's 1994 decision in Schmidt v. Air Products, which embraced trust law as a tool for resolving pension surplus ownership disputes, held out the promise that courts would use fiduciary principles to shape pension rights for employees and protect those rights against employer self-interest. That promise has failed to bear much fruit. Since Schmidt, the Court has moved away from a conception of trust law as a fetter on employer power towards a flexible conception in which employer trust obligations are …
Sharing The Spotlight: Co-Authored Reasons On The Modern Supreme Court Of Canada, Peter J. Maccormick
Sharing The Spotlight: Co-Authored Reasons On The Modern Supreme Court Of Canada, Peter J. Maccormick
Dalhousie Law Journal
When the Supreme Court of Canada delivers its reasons forjudgment, the normal expectation (the rare "By the Court" decision aside) is that the judgment of the Court-unanimous or majority or even plurality-will be designated as having been delivered by one specific judge. ("The reasons of A, B, C and D were delivered by B.") But in recent decades, the practice has developed for two or more judges to share this formal designation; co-authorships currently account for one judgment (and, for that matter one set of minority reasons) in every ten. This article explores this practice, unusual among comparable national high …
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 …
"We Shall Not Cease From Exploration": Narratives From The Hyde Inquiry About Mental Health And Criminal Justice, Anne Derrick
"We Shall Not Cease From Exploration": Narratives From The Hyde Inquiry About Mental Health And Criminal Justice, Anne Derrick
Dalhousie Law Journal
When I embarked on my journey at the Hyde Inquiry I really felt I knew nothing. The place I came to know for the first time, at the end, was a place I had really not known before. I was taken there by the narratives that made up the threads of the Inquiry and it is some of these narratives I am going to discuss here.
Reading The Judicial Mind: Predicting The Courts' Reaction To The Use Of Neuroscientific Evidence For Lie Detection, Jennifer Chandler
Reading The Judicial Mind: Predicting The Courts' Reaction To The Use Of Neuroscientific Evidence For Lie Detection, Jennifer Chandler
Dalhousie Law Journal
How will the courts react to the emerging technology ofdetecting deception using neuroscientific methods such as neuro-imaging? The sociological theory of the autonomy of technology suggests that if neuroscientific techniques come to be seen as reliable for this purpose, other objections will soon be abandoned. The history of the judicial reaction to DNA evidence illustrates this pattern. As DNA evidence came to be seen as highlyreliable, the courts rapidly abandoned their concerns that juries would be overwhelmed by the "mystique of science" and that the justice system would be "dehumanized." The legaljustifications for rejecting polygraph evidence are explored in order …
Application Of Non-Implemented International Law By The Federal Court Of Appeal: Towards A Symbolic Effect Of S. 3(3)(F) Of The Irpa?, France Houle, Noura Karazivan
Application Of Non-Implemented International Law By The Federal Court Of Appeal: Towards A Symbolic Effect Of S. 3(3)(F) Of The Irpa?, France Houle, Noura Karazivan
Dalhousie Law Journal
Since 1999, the Supreme Court has explored the linkages between domestic statutes and international norms and values and has slowly developed the basic principles underlying a new mechanism of relevancy that the authors call harmonization of domestic law with international law The authors analyze this development in PartI of the present article. In Part II, they study the application of this harmonization mechanism in the field of Canadian immigration law Of, particular importance in the Immigration and Refugee Protection Act is s. 3(3)(f), for it directs judges to construe and apply the IRPA in a manner that "complies with international …
Structures Of Judgment: How The Modern Supreme Court Of Canada Organizes Its Reasons, Peter Mccormick
Structures Of Judgment: How The Modern Supreme Court Of Canada Organizes Its Reasons, Peter Mccormick
Dalhousie Law Journal
In recent decades, the Supreme Court of Canada has developed a distinctive and unusual way of organizing its reasons for judgment; concomitantly, it has developed a comparably distinctive style for its minority reasons as well. This article describes this new decision format and the elements into which it is typically divided, and compares it with the practices of appeal courts in other common law countries. It concludes first by theorizing about the purpose and the functions of decision formats and format changes, and then by defending the current Canadian style.
Colonialism And The Process Of Defining Aboriginal People, D'Arcy Vermette
Colonialism And The Process Of Defining Aboriginal People, D'Arcy Vermette
Dalhousie Law Journal
It is not uncommon for Aboriginal law students to experience discomfort in studying the law The discomfort is not unique to legal studies, but the law provides a venue where the effects of the imposition of colonial norms are starkly revealed. In law school the author had to confront how Canadian law has attempted to control Aboriginal identity, at first through legislation and then through the courts. While the locus and style of controlling Aboriginal identity has changed over time, the practice of controlling Aboriginal identity is ever present. This process of control dehumanizes individualsand peoples and continues into the …
The Origins Of A Coming Crisis: Renewal Of The Churchill Falls Contract, James P. Feehan, Melvin Baker
The Origins Of A Coming Crisis: Renewal Of The Churchill Falls Contract, James P. Feehan, Melvin Baker
Dalhousie Law Journal
The 1969 Churchill Falls contract between Hydro-Quebec and the Churchill Falls Labrador Corporation has been the subject of political controversy. It has also been challenged in the courts, with appeals reaching to the Supreme Court of Canada. Yet, despite the scrutiny of those court cases, the political rhetoric, and the literature that has been spawned by this matter, an extraordinary element of that contract remains remarkably obscure. It is the contract's renewal clause. At the expiry of the contract's forty-four-year term in 2016, that clause requires an automatic renewal for twenty-five additional years at a fixed nominal price that is …
Promissory Estoppel, Proprietary Estoppel And Constructive Trust In Canada: "What's In A Name?", Jane Matthews Glenn
Promissory Estoppel, Proprietary Estoppel And Constructive Trust In Canada: "What's In A Name?", Jane Matthews Glenn
Dalhousie Law Journal
This paper explores the similarities and differences between promissory estoppel, proprietary estoppel and the remedial constructive trust. Although the three are quite different at one level, as the first is a defence to an action, the second a cause of action as well as a defence, and the third simply a remedy to a cause of action, a closer examination reveals certain underlying similarities. The comparison highlights proprietary estoppel, an oft-overlooked concept in Canada, but which is comparable to promissory estoppel at the substantive level and the constructive trust at the remedial level.