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Articles 31 - 60 of 66
Full-Text Articles in Common Law
“Labour Law Is A Subset Of Employment Law” Revisited, Alan Bogg
“Labour Law Is A Subset Of Employment Law” Revisited, Alan Bogg
Dalhousie Law Journal
This article revisits the arguments in Brian Langille’s seminal law review article, “Labour Law is a Subset of Employment Law.” Langille’s article was based upon two main claims: (a) that (individual) employment law should be understood as the “set” and (collective) labour law the “subset” of employment law (the primacy of employment law); (b) that “public values” have priority over “private values” in the regulation of work (the primacy of public values). These two claims were presented as mutually reinforcing in “Subset.” Drawing on specific examples from UK and Canadian law, this article endorses the first claim but rejects the …
Does “No, Not Without A Condom” Mean “Yes, Even Without A Condom”?: The Fallout From R V Hutchinson, Lise Gotell, Isabel Grant
Does “No, Not Without A Condom” Mean “Yes, Even Without A Condom”?: The Fallout From R V Hutchinson, Lise Gotell, Isabel Grant
Dalhousie Law Journal
In R v Kirkpatrick, the Court of Appeal for British Columbia held that consent to sexual activity cannot be established where a man proceeds with unprotected vaginal intercourse when his sexual partner has insisted on a condom. While this finding should be uncontroversial, it is in fact contrary to the Supreme Court of Canada ruling in R v Hutchinson. In this comment we argue that the approach taken in Kirkpatrick is correct and consistent with the landmark decision in R v Ewanchuk. We urge the Supreme Court of Canada to reconsider its majority judgment in Hutchinson in order to fully …
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 …
Faith And/In Medicine: Religious And Conscientious Objections To Maid, Daphne Gilbert
Faith And/In Medicine: Religious And Conscientious Objections To Maid, Daphne Gilbert
Dalhousie Law Journal
Across Canada, health care institutions that operate under the umbrella of religious traditions refuse to offer medical assistance in dying (MAiD) on the grounds that it violates their Charter-protected rights to freedom of religion and conscience. This article analyses the Supreme Court jurisprudence on section 2(a) and concludes that it should not extend to the protection of institutional rights. While the Court has not definitively pronounced a view on this matter, its jurisprudence suggests that any institutional right to freedom of religion would not extend to decisions on publicly-funded and legal health care. MAiD is a constitutionally-protected option for individuals …
Unifying The Field: Mapping The Relationship Between Work Law Regimes In Ontario, Then And Now, Claire Mumme
Unifying The Field: Mapping The Relationship Between Work Law Regimes In Ontario, Then And Now, Claire Mumme
Dalhousie Law Journal
Since the mid-20th century in Canada, labour and employment law have been treated as two separate but related fields. In 1981 Brian Langille argued in “Labour Law is a Subset of Employment Law” for the unification of the fields, so that all forms of waged work were understood as matters of public policy, rather than leaving some types of work to private law regulation. Taking up Langille’s argument, this paper argues that employment contracts, individual and collective, are structured through the overlap, interaction and gaps between work law regimes. The creation of a unified field moves from studying the regimes …
Pogg And Treaties: The Role Of International Agreements In National Concern Analysis, Gib Van Ert
Pogg And Treaties: The Role Of International Agreements In National Concern Analysis, Gib Van Ert
Dalhousie Law Journal
Canada’s international treaty obligations have featured prominently in Privy Council and Supreme Court of Canada jurisprudence on Parliament’s power to make laws for the peace, order and good government of Canada (POGG). How treaties ought properly to be used in determining Parliament’s POGG jurisdiction is a constitutionally fraught question. The federal executive cannot be permitted to extend Parliament’s legislative jurisdiction by making promises to foreign states. Yet the existence of treaty obligations is undoubtedly relevant to the question of whether a given subject has become a matter of national concern. In the upcoming Greenhouse Gas Pollution Pricing Act references, the …
An Examination Of How The Canadian Military's Legal System Responds To Sexual Assault, Elaine Craig
An Examination Of How The Canadian Military's Legal System Responds To Sexual Assault, Elaine Craig
Dalhousie Law Journal
Although the Canadian military has been conducting sexual assault trials for over twenty years, there has been no academic study of them and no external review of them. This review of the military’s sexual assault cases (the first of its kind) yields several important findings. First, the conviction rate for the offence of sexual assault by courts martial is dramatically lower than the rate in Canada’s civilian criminal courts. The difference between acquittal rates in sexual assault cases in these two systems appears to be even larger. Since Operation Honour was launched in 2015 only one soldier has been convicted …
Intervenors At The Supreme Court Of Canada, Geoffrey D. Callaghan
Intervenors At The Supreme Court Of Canada, Geoffrey D. Callaghan
Dalhousie Law Journal
My aim in this paper is to offer a normatively attractive and explanatorily sound interpretation of the Supreme Court of Canada’s approach to third party intervention. The crux of my interpretation is that the policy the Court has developed on intervenors allows it to strike a reasonable balance among a number of competing democratic considerations, all of which have value in the context of judicial decision making. In this respect, the Court should be commended for identifying a way to liberalize a practice that possesses many democratically-attractive features, but also the inherent capacity to undermine the democratic standing of the …
The Bad, The Ugly, And The Horrible: What I Learned About Humanity By Doing Prison Research, Adelina Iftene
The Bad, The Ugly, And The Horrible: What I Learned About Humanity By Doing Prison Research, Adelina Iftene
Dalhousie Law Journal
Every Canadian academic conducting research with humans must submit an ethics application with their university’s Research Ethics Board. One of the key questions in that application inquired into the level of vulnerability of the interviewees. Filling in that question, I had to check nearly every box: the interviewees were incarcerated, old, under-educated, poor, Indigenous or other racial minorities, and likely had mental and physical disabilities. However, it was not until I met John that I understood what all those boxes actually meant. They were signalling that I was entering a universe of extreme marginalization—the universe of the forgotten. I learned …
A Leap Of Faith: Twail Meets Caribbean Queer Rights Jurisprudence—Intersections With International Human Rights Law, H. Patrick Wells
A Leap Of Faith: Twail Meets Caribbean Queer Rights Jurisprudence—Intersections With International Human Rights Law, H. Patrick Wells
Dalhousie Law Journal
This article examines the legal status of queer rights in Caribbean jurisprudence. It conducts an analysis of Caribbean queer rights case law, in order to arrive at an understanding of the extent and dynamics of constitutional protection for these rights. It then uses the revelations from this analysis to determine how Caribbean queer rights jurisprudence has intersected with international human rights norms, values and rules. Finally, the article applies the TWAIL methodological approach to international law to argue that the Caribbean queer rights jurisprudence has not so far reflected the counter-hegemonic, resistance, anti-imperialist discourse that TWAIL champions, in spite of …
Searching For A Summary Judgment Equivalent In Quebec Procedural Law, Kathleen Hammond
Searching For A Summary Judgment Equivalent In Quebec Procedural Law, Kathleen Hammond
Dalhousie Law Journal
The summary judgment is a procedural mechanism that is meant to improve the efficiency of civil litigation by allowing a judgment to be delivered in a summary way, and without the need for a full trial. It is seen as an important tool for dealing with the growing problem of access to justice in Canada. Reform to Ontario’s summary judgment rules in 2010, and a liberal interpretation of the Ontario rules in the case of Hryniak v Mauldin, 2014, have led to a greater reliance by parties on summary judgment motions in Ontario. This trend is also apparent in other …
Popping The Question: What The Questionnaire For Federal Judicial Appointments Reveals About The Pursuit Of Justice, Diversity, And The Commitment To Transparency, Agathon Fric
Dalhousie Law Journal
Since 2017, the Canadian government has published excerpts from questionnaires that prospective judges completed as part of the judicial selection process, subjecting newly appointed superior and federal court judges to a degree of scrutiny that is unprecedented in Canadian history. Using this novel source material, this article explores what a sample of 16 judges’ questionnaires do and do not say about the individuals behind the robes. This review suggests that those appointed to the bench in 2017 generally demonstrate insight into the judicial role in Canada. However, some provide only superficial responses, others parrot back normative values that the government …
Committing To Justice: The Case For Impact Of Race And Culture Assessments In Sentencing African Canadian Offenders, Maria C. Dugas
Committing To Justice: The Case For Impact Of Race And Culture Assessments In Sentencing African Canadian Offenders, Maria C. Dugas
Dalhousie Law Journal
Canadian judges have made notable, although too limited, strides to recognize the unique conditions of Black Canadians in sentencing processes and decisionmaking. The use of Impact of Race and Culture Assessments in sentencing people of African descent has gradually gained popularity since they were first introduced in R v “X.” These reports provide the court with the necessary information about the effect of systemic anti-Black racism on people of African descent and how the experience of racism has informed the circumstances of the offence, the offender, and how it might inform the offender’s experience of the carceral state. This paper …
The Implications Of Federalism For The Regulation Of Federal Government Lawyers, Andrew Flavelle Martin
The Implications Of Federalism For The Regulation Of Federal Government Lawyers, Andrew Flavelle Martin
Dalhousie Law Journal
The implications of Canadian federalism for the regulation of lawyers for the federal government are largely overlooked in the literature and case law. This article argues that employees of the federal government can practice law without being licensed by the corresponding provincial law society (or any law society). However, if they happen to be licensed by a law society, they can be disciplined by that law society—unless and until Parliament adopts legislation immunizing them from law society discipline. The article also considers the possibility that Parliament could create a separate bar for federal government lawyers. It concludes that some form …
Introduction, Kim Brooks, Kim Brooks
Introduction, Kim Brooks, Kim Brooks
Dalhousie Law Journal
At Schulich, we see business law in a broad frame and understand that business law and policy includes the role of businesses in environmental protection, sustainable investing, inter-nation equity, and access to justice. We understand that businesses operate in broad social, economic, and political contexts, and as a community of scholars we care about the interactions of business law and policy with technology, governance and stakeholder rights, and economic, social and environmental justice. We hope that this collection advances vital scholarly and policy conversations.
A Survey And Critique Of The “Seller In Possession” Statutory Regimes Of Common Law Canada: An Abc Prequel, Clayton Bangsund
A Survey And Critique Of The “Seller In Possession” Statutory Regimes Of Common Law Canada: An Abc Prequel, Clayton Bangsund
Dalhousie Law Journal
The article examines the various provincial and territorial statutory regimes that apply to resolve title disputes emanating from a “seller in possession” scenario in which an initial buyer leaves bought goods in the possession of a seller who then transfers them to a subsequent bona de purchaser. Presently there are four distinct statutory models in force across common law Canada. Some provinces and territories incorporate modernized electronic personal property registry infrastructure into their statutory priority regimes, while others do not. The author undertakes a comparative assessment of the four models, highlights their strengths and weaknesses, and asserts that Model 2—representative …
Disrupting Business As Usual: Considering Teaching Methods In Business Law Classrooms, Jeffery Hewitt, Shanthi E. Senthe
Disrupting Business As Usual: Considering Teaching Methods In Business Law Classrooms, Jeffery Hewitt, Shanthi E. Senthe
Dalhousie Law Journal
The Truth and Reconciliation Commission of Canada (TRC)’s Calls to Action propose signimcant changes to legal education. No law school classroom is exempt, including business law courses. We are two of a growing number ofscholars in the legal academy actively incorporating Indigenous laws, critical race theory and socio-economic perspectives into business law courses as part of our responses to the TRC. This paper explores a field school we developed at Windsor Law as a response to the Calls to Action. In a temporary fusion of two courses, Secured Transactions along with Indigenous Peoples, Art & Human Rights, a synergy emerges …
Manufacturing Consent To Climate Inaction: A Case Study Of The Globe And Mail ’S Pipeline Coverage, Jason Maclean
Manufacturing Consent To Climate Inaction: A Case Study Of The Globe And Mail ’S Pipeline Coverage, Jason Maclean
Dalhousie Law Journal
Canada has long been a climate change policy laggard. Canada is among the world’s poorest-performing countries in terms of climate action—not only is Canada’s greenhouse gas emissions-reduction target under the Paris Agreement insufficiently ambitious, Canada is not even remotely on track to meet it. Canada’s enduring inaction on climate change is legitimized and sustained by its mainstream corporate news media, which contribute to the oil and gas industry’s capture of Canadian climate and energy policy. In this article, I examine how Canada’s leading national newspaper, The Globe and Mail, editorially framed the completion of the controversial expansion of the Trans …
Third-Party Liability Of Directors And Officers: Reconciling Corporate Personality And Personal Responsibility In Tort, Michael Marin
Third-Party Liability Of Directors And Officers: Reconciling Corporate Personality And Personal Responsibility In Tort, Michael Marin
Dalhousie Law Journal
When is a director or of�� cer personally liable in tort to a party who is not the corporation he or she serves? In Canada, there is no clear answer. The law is marked by division both within and between appellate courts, resulting in judgments that are hard to reconcile and verge on arbitrary. This is likely attributable to the mistaken belief that there is a tension between personal liability and corporate personality, as well as the disputed relationship between common law and statutory obligations. To address these challenges, most Canadian courts have followed a threshold corporate law analysis, which …
Reorganizations, Sales, And The Changing Face Of Restructuring In Canada: Quantitative Outcomes Of 2012 And 2013 Ccaa Proceedings, Alfonso Nocilla
Reorganizations, Sales, And The Changing Face Of Restructuring In Canada: Quantitative Outcomes Of 2012 And 2013 Ccaa Proceedings, Alfonso Nocilla
Dalhousie Law Journal
This article examines quantitative data on the outcomes of proceedings under the Companies’ Creditors Arrangement Act (CCAA), Canada’s principal statute for resolving large, complex corporate insolvencies. In particular, this article compares the durations, direct costs, and returns to different classes of creditors generated by traditional reorganizations under the CCAA and by “liquidating CCAAs”—that is, proceedings in which the insolvent debtor sells substantially all of its assets rather than reorganizing itself. The article makes a number of contributions to the existing scholarship. Firstly, quantitative data on CCAA proceedings are rare. The data examined here, collected by the author from proceedings initiated …
Evaluating Canadian Tax Remission Orders: A Debt Relief Vehicle For Taxpayers, Samuel Singer
Evaluating Canadian Tax Remission Orders: A Debt Relief Vehicle For Taxpayers, Samuel Singer
Dalhousie Law Journal
Tax remission orders, although rare, serve important functions in the Canadian tax system. This paper draws from a comprehensive study of federal tax remission orders issued between 1998 and 2017. It presents general findings about remission orders in that time period, including remission order applications, their reported costs, and the number of remission orders issued. The paper identifies the five most common categories of reasons cited for granting remission orders. It then applies tax policy analysis to assess the two most frequent reasons for grating remission orders: to provide debt relief for financial hardship and/or extenuating circumstances, and to provide …
Corporate Risk And Climate Impacts To Critical Energy Infrastructure In Canada, Rudiger Tscherning
Corporate Risk And Climate Impacts To Critical Energy Infrastructure In Canada, Rudiger Tscherning
Dalhousie Law Journal
Recent climate events such as Hurrican Harvey in Texas foreshadow the dangers that could result from critical energy infrastructure failure in Canada due to physical impacts caused by climate change. This article examines the types of climate impacts that could affect critical energy infrastructure in Canada. The article argues that these impacts translate into three types of corporate risk to the owners and operators of the critical asset: economic risks to the infrastructure asset; management and operational risks to the corporation; and risks arising from corporate disclosure obligations. Applying the theoretical approach of "risk management," the article concludes that, on …
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 …
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 …
Bodies Of Law, Moira Mcconnell
Bodies Of Law, Moira Mcconnell
Dalhousie Law Journal
"Don't judge a book by its cover" is a maxim most frequently recited to children by adults to explain the idea that one should not judge people on the basis of appearance. This maxim captures the gist of the topic explored in Alan Hyde's Bodies of Law. Bodies of Law seeks to expose the fact that we simultaneously view a person as an entity distinct from her or his physical manifestation while our understanding and response to a person is affected by our perceptions and judgments regarding their physical characteristics.
Public Housing And Equality Rights - Dartmouth/Halifax County Regional Housing Authority V. Irma Sparks, Stephen G. Coughlan
Public Housing And Equality Rights - Dartmouth/Halifax County Regional Housing Authority V. Irma Sparks, Stephen G. Coughlan
Dalhousie Law Journal
In Dartmouth/HalifaxCounty Regional Housing Authority v. Sparks, courts in Nova Scotia are once again called upon to consider whether tenants in public housing are entitled to the same protection as private tenants. The Supreme Court Appeal Division decided in Bernard v. Dartmouth Housing Authority that shorter notice periods for public housing tenants were not objectionable, under either s. 7 or s. 15 of the Charter. The issue will now return to the Court of Appeal, but in the meantime the County Court has held that Bernard still sets the standard in Nova Scotia.
Possibilities Of Reverter And Rights Of Re-Entry For Condition Broken: The Modern Context For Determinable And Conditional Interests In Land, Peter Devonshire
Possibilities Of Reverter And Rights Of Re-Entry For Condition Broken: The Modern Context For Determinable And Conditional Interests In Land, Peter Devonshire
Dalhousie Law Journal
The transfer of ownership in real property is usually characterised by an outright grant of the fee simple which operates to vest an absolute interest in the grantee. Sometimes, however, land is conveyed in circumstances where the grantor purports to reserve a right to recover the property if a stipulated event occurs or if the grantee does, or abstains from doing, a particular thing. Depending upon the form of the instrument, this may give rise to a determinable fee simple or a fee simple upon condition subsequent.
Perestroika, Glasnost And Law Reform In The Soviet Union Today, V K. Zabigailo
Perestroika, Glasnost And Law Reform In The Soviet Union Today, V K. Zabigailo
Dalhousie Law Journal
Three years have passed since the elaboration, on the initiative of the Communist Party of the Soviet Union, of a new strategy of action for Soviet society - the acceleration of the country's social-economic development. Today this strategy is finding wide implementation in the policy of perestroika, the revolutionary renewal of society and profound changes in every sphere of its life - political, economical, social and spiritual. Formulated at the April Plenary Session of the Central Committee of the Communist Party of the Soviet Union in 1985 and the 27th Party Congress in 1986, the concept ofperestroika is based on …
A Shorn Beard, Tim Quigley
A Shorn Beard, Tim Quigley
Dalhousie Law Journal
One of the prominent features of the common law is the concept of stare decisis. As a mechanism to provide certainty and predictability in the law, it is invaluable. Nonetheless, the doctrine of binding precedent, essential though it is to the orderly development of the law, can be misused. At times, the disingenuous application of stare decisis can lead to severe distortion of the law from what was actually meant in the case being cited as authority. Such, I submit, is the case with the intoxication rules.
The Changing Common Law, Morton J. Horwitz
The Changing Common Law, Morton J. Horwitz
Dalhousie Law Journal
I am very pleased and honoured to have been asked to participate in this centennial celebration. For me, it underlines the common bonds between the people of Canada and of the United States, who, in spite of various stresses and strains, manage to live side by side in peace and mutual respect. May we continue to set an example for the rest of the world. Until I read John Willis' very interesting history of Dalhousie Law School, I had not fully realized that I am here simply as another link in a long-standing relationship between Dalhousie and Harvard Law Schools. …