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Journal articles on the topic 'Statutes of Canada'
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1
Marusyk, Randy W., and Karen A. Laitner. "{BLR 2051} Blocking Statutes - Canada." Biotechnology Law Report 14, no. 4 (July 1995): 573–75. http://dx.doi.org/10.1089/blr.1995.14.573.
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Hudon, Edward G. "Quelques mots sur la recevabilité des éléments de preuve extrinsèques devant les tribunaux : le Canada et les États-Unis." Articles 22, no. 2 (April 12, 2005): 371–82. http://dx.doi.org/10.7202/042441ar.
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This article is a comparison of the use of extrinsic materials by the courts of Canada and of the United States in the interpretation of statutes. The author points out that in the United States the courts have reached the point where just about everything is admissible — particularly legislative debates, committee hearings and reports — but that in Canada the use of extrinsic materials is limited to the determination of the constitutionality of a law or statute. Although the courts of Canada are becoming more and more liberal in the use of extrinsic materials, the use of legislative debates is still not generally permitted even though they were used by one Justice of the Supreme Court of Canada in the Anti-Inflation Act Reference. The author wonders how long it will be before the Supreme Court of Canada will abandon the little that is left of the English tradition and permit the use of extrinsic materials not only in the determination of the constitutionality of a statute, but also in its interpretation.
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Miller, Michael J. "Selected US Tax Developments: Adams Challenge (UK) Limited: When Does a Treaty Provision Conflict with the Code?" Canadian Tax Journal/Revue fiscale canadienne 69, no. 2 (August 2021): 655–67. http://dx.doi.org/10.32721/ctj.2021.69.2.ustd.
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In the United States, statutes and treaties are on an equal footing. Thus, in the event of a conflict between a statute and a treaty, the treaty does not automatically take precedence over the statute. Moreover, the US courts go to great lengths to avoid finding the existence of any conflict. This article discusses a recent case in which the Tax Court held, among other things, that a punitive deduction-disallowance rule applicable solely to non-US persons did not conflict with the non-discrimination article of the income tax treaty in effect between the United States and Canada.
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Heilbrun, Kirk, James R. P. Ogloff, and Kim Picarello. "Dangerous Offender Statutes in the United States and Canada." International Journal of Law and Psychiatry 22, no. 3-4 (May 1999): 393–415. http://dx.doi.org/10.1016/s0160-2527(99)00017-5.
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Craven, Paul. "Computer Applications in Comparative History: The Master & Servant Project at York University (Canada)." History and Computing 7, no. 2 (June 1995): 69–80. http://dx.doi.org/10.3366/hac.1995.7.2.69.
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The Master and Servant Project at York University (Toronto) analyses employment laws torn a hundred Britishjurisdictionsoverfourcenturies, examiningthe lexical relationships among many hundreds of statutes, and seeking explanations for the clustering of particular legal provisions in particular parts of the imperial economy. The complexity, redundancy, and sheer bulk of the material invited computer analysis. Commercial database software (askSam) documents the paper archive; analysis reUes largely on programmes developed in the project and on TACT, a text retrievalpackage from the Centre for Computing in the Humanities, University of Toronto. Lexical content is approached with programmes that calculate the overlap oflanguage among sentences across the whole archive; high scores identify candidate terms for detailed examination in TACT. Analysis of the policy of the acts (independent of their lexical form) relies on coded versions of the statutes, created with a coding engine that minimizes errors. A conceptual clustering programme, in which the computer repeatedly sorts the coded versions according to subsets ofcharacteristics, groups the statutes into unambiguous sets with common features. The techniques described are applicable wherever the language or conceptual content oflarge numbers oftexts needs to be compared in detail.
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Morgan, Patricia, Loren Turner, and Edward T. Hart. "Ignorance of International Law Is No Excuse, or How the Florida Legislature Ticked Off Canada†." International Journal of Legal Information 41, no. 3 (2013): 309–25. http://dx.doi.org/10.1017/s0731126500011914.
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During its 2012 session the Florida Legislature amended the text of the Florida Statutes which lists exemptions from the requirements of obtaining a Florida drivers’ license. Removed from the text of Florida Statute 322.04 was the line concerning nonresidents, both fellow Americans and international visitors, “who has in his or her immediate possession a valid noncommercial driver's license issued to the nonresident in his or her home state orcountry[emphasis added].” Inserted was a new line, “An International Driving Permit issued in his or her name in his or her country of residence and a valid license issued in that country.” International visitors were required to have in their possession not only a valid drivers’ license, but also an International Driving Permit (IDP) that translated into English the personal identification information of the driver. The change took effect January 1, 2013, but even before that date, Florida faced allegations that it was violating international law with this new requirement.
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Wanczycki, Jan K. "Unions Dues and Political Contributions – Great Britain, United States, Canada – A Comparison." Relations industrielles 21, no. 2 (April 12, 2005): 143–209. http://dx.doi.org/10.7202/027674ar.
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This paper is concerned with court decisions and statutory enactments which had an effect on active participation of trade unions in political action and, in particular, how the Legislatures, and the courts in interpreting the relevant statutes, attempted to prevent or regularize the use of union dues, levies or funds for political purposes.
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Gray, Wayne D. "Personal Tax Planning: Due Diligence Defence to Liability for Unpaid Statutory Remittances." Canadian Tax Journal/Revue fiscale canadienne 68, no. 1 (April 1, 2020): 281–312. http://dx.doi.org/10.32721/ctj.2020.68.1.ptp.
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Several potentially onerous liabilities may be imposed on directors outside the provisions of the statute under which their corporation is incorporated or continued. In particular, some of the most common sources of personal liability for directors arise under statutes requiring the corporation to pay employee payroll source deductions (income tax, Canada Pension Plan contributions, and employment insurance premiums), withholding taxes owing by non-residents of Canada, and net goods and services tax and harmonized sales tax remittances. These statutory regimes all have certain features in common, including a statutory due diligence defence. This article examines the state of the law under the objective standard of care first adopted in the tax context by the Federal Court of Appeal in <i>Buckingham</i>. In particular, it examines the principles that guide jurisprudence on the due diligence defence, the factual circumstances that have met with success or failure for appellants, and how the defences apply differently depending on whether a director is an inside or outside director.
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Hutchison, Cameron J. "Which Kraft of Statutory Interpretation? A Supreme Court of Canada Trilogy on Intellectual Property Law." Alberta Law Review 46, no. 1 (November 1, 2008): 1. http://dx.doi.org/10.29173/alr237.
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The techniques used by courts to interpret statutes can be characterized as inconsistent, and at times, excessive. Current methodologies of statutory interpretation often reflect deeply normative views about the appropriate institutional role of the legislative and judicial branches of law-making, but this characterization of the debate is misleading. Rather, the problem lies with properly discerning legislative meaning and intent in full awareness of the limitations and possibilities of statutes as communicative devices. The author suggests a new methodology of statutory interpretation, whereby courts analogize the facts before them with certain paradigm cases. This methodology serves to constrain judicial discretion and enables courts to fill gaps in legislation in connection with novel cases.
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Murdoch, Blake. "The legal and policy considerations of transplanting pediatric thymus regulatory T cells as an immunotherapy in Canada." Medical Law International 20, no. 3 (September 2020): 201–10. http://dx.doi.org/10.1177/0968533220963157.
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Regulatory T cells (Tregs) hold promise for cell-based therapies for autoimmunity and transplant rejection. In Canada, the potential collection, short-term banking, and transplantation of pediatric Tregs left over from surgery raise legal and policy concerns. Tregs likely fall under the definitions of “tissue” found in most provincial donation and transplantation statutes. With the exception of Alberta’s Human Tissue and Organ Donation Act, the fundamental distinction between donation of tissue primarily for transplantation and secondary donation of by-products of a medical intervention undertaken for the benefit of the donor is inadequately addressed in Canadian law. Most statutes prohibit transplantation except in accordance with their provisions and do not contemplate living donation by minors under a specific age. Provinces could amend their legislation in order to properly enable the transplantation of by-products like Tregs from infant donors. This process is relatively ethically uncontroversial, so if common research ethics and privacy concerns can be addressed, it should likely be permitted.
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Keyserlingk, Edward W. "The Eve Decision — A Common Law Perspective." L’affaire Eve et la stérilisation des déficients mentaux 18, no. 3 (April 17, 2019): 657–75. http://dx.doi.org/10.7202/1058698ar.
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By its decision in the Eve case, the Supreme Court of Canada clarified and settled the law in at least two important respects. From now on, provincial statutes can only be used to authorize guardians to permit involuntary contraceptive sterilizations if their wording clearly and explicitly so provides. The Prince Edward Island statute in question did not do so. Secondly, though the Court's parens patriae jurisdiction is of unlimited scope and does extend to cases involving medical procedures, it cannot serve as the basis for authorizing non-therapeutic sterilizations. By ruling out the applicability of parens patriae, and by insisting that judges are not able to deal adequately with such cases, the Supreme Court may have strengthened the case for new legislation in this area. The writer argues that such legislation should provide for access to contraceptive sterilization for the mentally disabled, and the needed safeguards to protect those unable to consent or refuse from the imposition of sterilization in the interests of parties other than themselves.
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Emery, Georges. "Réflexions sur le sens et la portée au Québec des articles 25, 35, et 37 de la Loi constitutionnelle de 1982." Les Cahiers de droit 25, no. 1 (April 12, 2005): 145–63. http://dx.doi.org/10.7202/042589ar.
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The rights of aboriginal peoples may vary from one part of the country to the other. This stems from the origin of Canada, its history, its Imperial and the Constitutional Statutes which have determined the territorial evolution of Canada. The terms of the Quebec Act seem to limit the hunting territories of the Indians to that part of Quebec which was not a part of the Colony in 1763. While a federal law extinguished all aboriginal rights in the territory covered by the James Bay agreements, the amendment of 16 March 1983 may have, for Quebec, important legal consequences in that these agreements may be held to be treaties.
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Piette, Jean. "La protection de l'environnement au Canada et aux États-Unis." Les Cahiers de droit 29, no. 2 (April 12, 2005): 425–45. http://dx.doi.org/10.7202/042888ar.
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This paper explains some of the main differences between the development and the structure of environmental legislation, regulations and programs in Canada and the United States. In Canada, the division of powers under the Federal Constitution between Parliament and Provincial Legislatures explains the structure and scope of Canadian environmental law. Federal laws and regulations have been mostly sectoral while Provincial laws have been broader and have been successful in integrating environmental planning instruments. U.S. environmental laws, regulations and programs are developed under the leadership of Congress. The Environmental Protection Agency and State Governments are called upon to play an important role in the implementation of Federal environmental statutes. Contrary to the Canadian situation, citizen suits and the Judiciary are instrumental in the development of U.S. environmental law.
14
Massicotte, Michael G., Alan L. Ross, and Chidinma B. Thompson. "The Changing Legislation and Regulation of Carbon Capture and Storage: Impacts on Purpose, Policy, and Projects." Alberta Law Review 49, no. 2 (December 1, 2011): 305. http://dx.doi.org/10.29173/alr119.
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The Government of Alberta is implementing carbon capture and storage (CCS) technology in order to reduce carbon dioxide emissions. With the enactment of the Carbon Capture and Storage Statutes Amendment Act, 2010 in November 2010, Alberta became the first jurisdiction in Canada to have comprehensive CCS legislation. This article describes CCS technology, considers the impact of the new legislation and potential interjurisdictional conflicts, and briefly compares the CCS legislation of other jurisdictions with Alberta’s legislation.
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Langille, Brian. "The Freedom of Association Mess: How We Got into It and How We Can Get out of It." McGill Law Journal 54, no. 1 (October 1, 2009): 177–212. http://dx.doi.org/10.7202/038181ar.
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Abstract Canadian constitutional law regarding freedom of association for workers is a mess. The jurisprudence to date has taken an approach to state action and positive obligations to legislate which is inconsistent with section 15, and has failed to articulate the relationship between the abstract statement of basic rights or freedoms and the detailed statutes and regulations that instantiate and enforce them. This paper focuses on the impact of the recent decision of the Supreme Court of Canada in BC Health. The author argues that this case misunderstood Canada’s labour law history, international labour law obligations, “Charter values”, and the distinction between “freedoms” and “rights”. This paper argues that by using labour relations statutes as a starting point and applying the constitutional idea of equality, courts can protect freedom of association for workers and find a way out of the mess we are in.
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Kraska, James. "The Northern Canada Vessel Traffic Services Zone Regulations (Nordreg) and the Law of the Sea." International Journal of Marine and Coastal Law 30, no. 2 (May 25, 2015): 225–54. http://dx.doi.org/10.1163/15718085-12341349.
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This article explores the nature of Canada’s laws and regulations governing the Northern Canada Vessel Services Zone Regulations (nordreg) within the context of the international law of the sea. It provides context for the response to nordreg by the United States, and forecasts the impact of nordreg on future shipping regulations in the Arctic Ocean more generally. As Arctic nations develop shipping regulations, Canadian statutes—and their intersection with the international law of the sea and the rules adopted by the International Maritime Organization—are instructive for ensuring safety and security in the unique marine polar environment.
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Wahid, Ratnaria. "Libraries and technology: Canadian and Malaysian copyright exceptions." Library Management 38, no. 8/9 (November 14, 2017): 415–25. http://dx.doi.org/10.1108/lm-02-2017-0022.
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Purpose The purpose of this paper is to provide a snapshot and a comparative analysis of copyright exceptions available for libraries. It frames the differences and similarities, leading to discussion as to what extent copyright exceptions help libraries cater the changing technology. Design/methodology/approach This paper introduces the role of copyright exceptions in balancing owners and users interests. It explains evolving libraries activities due to technological development and how copyright exceptions significantly applies. Several factors in Canadian and Malaysian statutes are compared, namely, the rights granted, purposes allowed, beneficiaries affected, works involved, and conditions attached. This signifies to what extent the library exceptions cater to the changing needs and circumstances. It emphasizes the importance of awareness and understanding in order for libraries to serve its role effectively. Findings Both countries consider the use of new technologies in its library exceptions. Malaysian statute adopts a general approach which can either be flexibly or rigidly interpreted. Comparatively, Canada adopts a more specific and detail approach that might restrict beneficial activities. This paper calls for extra effort for policy makers to allow more control of digital works that may serve libraries activities. Originality/value There has not been any comparative study in the library literature on copyright exceptions for libraries in Malaysia and Canada. This study aims to provoke such discussion and how each country may learn from each others practices. It should be useful to the whole library community, particularly to both countries.
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Halpern-Shavim, Zvi. "Policy Forum: Carrying On About Carrying On Business: A Response to "The GST/HST Obligations of Non-Resident E-Commerce Firms"." Canadian Tax Journal/Revue fiscale canadienne 68, no. 4 (January 2021): 1053–67. http://dx.doi.org/10.32721/ctj.2020.68.4.pf.halpern-shavim.
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Non-resident suppliers of digital products and services are not required to collect and remit goods and services tax (GST)/harmonized sales tax (HST) if they are not "carrying on business" in Canada. The term "carrying on business" in Canada is not defined in the legislation. Leaving aside policy arguments in favour of, or against, requiring such non-resident suppliers without a physical presence in Canada to register, the author of this article considers whether the current legal framework should be reinterpreted to require such suppliers to become registered for GST/HST on the basis of a purely digital presence. He addresses these issues by considering the textual, contextual, and purposive meaning of the term "carrying on business" (and its permutations) in the Excise Tax Act (Canada) (ETA). He concludes that while developments in other areas of law, such as conflict-of-laws jurisprudence, may expand the common-law meaning of "carrying on business" in a jurisdiction to include having a purely digital presence, the interpretive framework particular for tax statutes in Canada, and the specific use of the term in the ETA itself, lead to the conclusion that a specific change in law would be the more appropriate way to impose registration and collection obligations on such non-resident suppliers.
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Beaupré, R. Michael. "Introduction." L’interprétation des lois et des conventions plurilingues 25, no. 4 (April 12, 2005): 935–38. http://dx.doi.org/10.7202/042631ar.
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A comparative study of the interpretative methodology applicable in multilingual jurisdictions such as Canada, Belgium and Switzerland and before the Court of Justice of the European Communities reveals some remarkable similarities as well as some important differences. The four papers that follow were presented during a seminar on the theme « Interpretation of Multilingual Statutes and Treaties » that was held in Strasbourg on July 10, 1984 under the auspices of the Canadian Institute for Advanced Legal Studies. The Canadian author of one of the papers also served as rapporteur for the seminar. His report serves as an introduction to the four papers.
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Weil, Patrick, and Nicholas Handler. "Revocation of Citizenship and Rule of Law: How Judicial Review Defeated Britain's First Denaturalization Regime." Law and History Review 36, no. 2 (May 2018): 295–354. http://dx.doi.org/10.1017/s0738248018000019.
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Over the past decade, the United Kingdom has deprived an increasing number of British subjects of their citizenship. This policy, known as “denaturalization,” has been applied with particular harshness in cases where foreign-born subjects have been accused of terrorist activity. The increase is part of a global trend. In recent years, Canada, Australia, France, and the Netherlands have either debated or enacted denaturalization statutes. But Britain remains an outlier among Western democracies. Since 2006, the United Kingdom home secretary has revoked the citizenship of at least 373 Britons, of whom at least 53 have had alleged links to terrorism. This is more than the total number of revocations by Canada, France, Australia, and Netherlands combined. These developments are troubling, as the right to be secure in one's citizenship has been a cornerstone of the postwar European liberal political order, and of the international community's commitment to human rights.
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Barry, Michael. "The Honour of the Crown in Aboriginal Land Issues: Manitoba Métis Federation Inc. v. R., 2013." GEOMATICA 69, no. 1 (March 2015): 65–73. http://dx.doi.org/10.5623/cig2015-104.
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Promises of land allotments that the Crown made to Métis children in 1870 were fulfilled for some eligible children and partially fulfilled for others. This led to the Manitoba Métis Federation and seventeen individuals initiating action against the federal Crown, claiming that the Crown had breached a fiduciary obligation to the Métis and had failed to uphold the honour of the Crown by not executing its obligation diligently, which, in turn, had caused injury to a number of the children. At trial, upheld on appeal, the case was dismissed. The fiduciary obligation was deemed not to exist, the honour of the Crown had not been breached, and the action was barred by both statutes of limitations and the doctrine of laches. Overturning the decision, the Supreme Court of Canada, however, held that the honour of the Crown had been breached and statutes of limitations and the doctrine of laches did not apply. The case contributes to Canadian jurisprudence regarding the honour of the Crown in Aboriginal land matters. It is also of interest in international land administration and land restitution, given the current high incidence of grabbing of customary/Aboriginal land in many countries.
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Johner, Randy, and Douglas Durst. "Constructing Family from a Social Work Perspective in Child Welfare." Journal of Comparative Social Work 12, no. 1 (April 21, 2017): 4–37. http://dx.doi.org/10.31265/jcsw.v12i1.145.
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The transformative reality of diverse Canadian families is outpacing national and provincial statutes and policies. Social workers in child welfare agencies are faced with the complex task of making decisions about families while working within the confines of national/provincial statutes and social policies, as well as within agency structures. They attempt to balance the rights of diverse Canadian families and still protect children at risk of harm with the principle of the ‘best interest of the child’. The purpose of this qualitative case study was to explore the construction of ‘family’ and decisions about family life in protection services from the perspective of professional social workers in the prairie region of Canada. Social workers from several urban communities were invited to participate in focus groups. During the focus group discussions, themes of social worker’s nuanced and somewhat fluid understandings of family did not always converge with current legal and professional notions of families. Study findings suggest that social workers’ construction of family and the decisions they make about family life involve three primary themes: ‘acceptance of diverse understandings of family’; ‘safety and the best interest of the child’, and ‘professional discretionary decisions’
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HOWLETT, MICHAEL. "Beyond Legalism? Policy Ideas, Implementation Styles and Emulation-Based Convergence in Canadian and U.S. Environmental Policy." Journal of Public Policy 20, no. 3 (December 2000): 305–29. http://dx.doi.org/10.1017/s0143814x00000866.
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Past studies of the dynamics of U.S.-Canada environmental policy and policy-making have found little evidence of ‘weak’ convergence in this sector; that is, of Canadian policy moving towards the U.S. model of adversarial legalism, an implementation style based upon procedural policy instruments such as action-forcing statutes, citizen suits, and judicial activism. However, recent efforts at de-regulation and the reformation of government in the U.S., and moves towards multi-stakeholder policy-making in Canada, have altered the standard against which trends towards Canadian^ American convergence must be assessed. These reforms have moved the U.S. environmental regulatory system closer to that existing in Canada, in which regulations and other elements of the environmental regime are developed through negotiation rather than litigation. Since Canadian environmental implementation has also been altered over the same period, however, it is argued that a form of ‘strong’ convergence is emerging, in which both countries are moving not towards each other but towards a third, common, style, that associated with the development of self-regulation and voluntary initiatives under the influence of New Public Management ideas and principles.
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Tarnopolsky, Walter S. "Le contrôle de la discrimination raciale au Canada." L'égalité devant la loi 18, no. 4 (April 12, 2005): 663–89. http://dx.doi.org/10.7202/042189ar.
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This article is divided into four parts: the first is a brief survey of race relations in Canada before the enactment of anti-discrimination legislation; the next two parts are devoted to an outline of the scope of this legislation and of the administration and enforcement of it ; finally, the last part suggests some current and possible future developments to make it more effective. Prior to the nineteenth century both the French and the British settlers in the colonies that have become a part of Canada had slaves. Slavery was not, however, very extensive due to lack of large agricultural holdings. At the end of the eighteenth century the legislature in Upper Canada and some judges in Lower Canada limited its expansion and helped to end its practice. The British Imperial Emancipation Act of 1833 brought it to an end. In the next few decades, up to the American Civil War, some Canadians helped run-away slaves from the slave-holding states in the United States, while others actively discouraged them from coming. By the end of the nineteenth century a new source of racial tension arose on the West Coast between the newer immigrants from Asia and the older immigrants from Europe. The result was the enactment of numerous discriminatory laws by the legislature of British Columbia and subsequently, on a lesser scale, by the other western provinces. Most of these remained on the statute books until after World War II. None of these laws were held invalid by the courts on the basis of their discriminatory nature. In addition, both the common law and the Civil Code were interpreted as not prohibiting private discrimination, except by hotel-keepers and common carriers. The change from this situation started in the I930's with a few specific legislative prohibitions of discrimination in specific instances. In the 1940's Ontario, with respect to signs and advertisements and Saskatchewan, with respect to a whole range of activities, enacted legislation prohibiting discrimination, enforcing their prohibitions with penal sanctions. The 1950's saw the introduction of fair employment and fair accommodation practices acts. By the I960's these were being consolidated into comprehensive human rights codes administered by human rights commissions. This trend has continued up to this year, with the result that all eleven jurisdictions have commissions charged with enforcing antidiscrimination codes or acts. The usual, but not invariable, procedure is the laying of a complaint, the investigation of it by the commission staff, an attempt to bring about a settlement and finally, failing that, a hearing before an adjudicative tribunal to determine whether an act of discrimination did occur and, if so, what redress is appropriate. In concluding, three suggestions are made regarding measures that could be taken to strengthen the effectiveness of anti-discrimination legislation: (I) contract compliance; (2) greater independence for the commissions from the government; and (3) giving the legislation paramountcy over other statutes.
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Steeves, Christopher J., and Kathryn Walker. "Corporate Tax Planning: Strategies for Troubled Times, Again." Canadian Tax Journal/Revue fiscale canadienne 69, no. 1 (April 2021): 279–333. http://dx.doi.org/10.32721/ctj.2021.69.1.ctp.
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This article addresses income tax issues associated with the various strategies that corporations can employ in response to economic difficulties, focusing on debt-restructuring techniques and tax consequences for debtors. First, the article discusses the tax effects of the most fundamental debt-restructuring issues—interest deductibility and the deductibility of planning costs. Second, considering the out-of-court approaches to debt restructuring, the article examines the tax consequences that may arise where a debtor company and its creditors are able to agree on accommodations that will provide some financial relief for the debtor. Third, the article comments on the potential for the debt-parking rules to apply in the context of the assignment of debt by a creditor. Fourth, the article examines the tax implications of a debt-for-equity exchange, pursuant to which an outstanding debt is exchanged for shares in the debtor corporation. Fifth, the article presents the key tax issues that emerge where a debtor corporation sells assets as a way to mitigate debt pressure. Finally, the article considers tax questions relevant to the statutory (in-court) debt-restructuring options offered by corporate-law statutes, such as the Canada Business Corporations Act, and insolvency statutes, such as the Companies' Creditors Arrangement Act.
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Le Bel, Suzanne. "Les émissions d'obligations dans le droit de la province de Québec de 1890 à nos jours." Les Cahiers de droit 21, no. 1 (April 12, 2005): 43–66. http://dx.doi.org/10.7202/042367ar.
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In the last decade of the 19th century, the English law of securities had already reached an advanced stage of development. Reception of that law seemed desirable throughout the British Empire. In Quebec, however, wholesale introduction of English concepts and rules could not easily be reconciled with the civil law system. This paper shows how the English law of securities, as it was perceived by writers and judges in Canada, gradually gained currency in many provincial incorporating statutes. This process culminated in the enactment by the Quebec Legislature of the Special Corporate Powers Act of 1914. The paper concludes with a description of the contents of this Act and its evolution up to the present day.
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Taylor, Linda A., and David M. Wood. "Equitable Jurisdiction of the Provincial Court of Alberta (Civil Division)." Alberta Law Review 35, no. 3 (July 1, 1997): 592. http://dx.doi.org/10.29173/alr1051.
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This article is concerned with the issue of whether the Provincial Court of Alberta (Civil Division) possesses any equitable jurisdiction. The authors first provide a history of equity and its fusion with law, and the impact of that fusion in Canada. The authors then examine the jurisdiction of the Provincial Court of Alberta (Civil Division) and conclude that, as an inferior statutory court, it can have no inherent substantive jurisdiction, only an inherent procedural jurisdiction. However, the Legislature can enlarge the Court's jurisdiction by statute (although the authors point out that there are limits on the jurisdiction that can be granted to an inferior statutory court). The authors then argue that, contrary to common belief, the Provincial Court of Alberta (Civil Division) does possess a limited equitable jurisdiction. They base this submission first on the wording of the Alberta Provincial Court Act, which allows the court to hear and adjudicate any claim for debt or damages (and unlike in other Alberta statutes, the Court in those situations is not specifically barred from granting equitable relief). Secondly, they submit that the granting of limited equitable jurisdiction is necessarily incidental to the achievement of broad policy goals related to the establishment of the Court. Finally, the authors compare the jurisdiction of the Provincial Court of Alberta (Civil Division) to that of the Small Claims Courts in Ontario and British Columbia.
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Lock, Geoffrey. "The 1689 Bill of Rights." Political Studies 37, no. 4 (December 1989): 540–61. http://dx.doi.org/10.1111/j.1467-9248.1989.tb00288.x.
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Following the disastrous reign of James II, the Bill of Rights was introduced to curb future arbitrary behaviour by the Crown. Five of the thirteen Articles are still active and cases illustrating their use in the courts are described. The courts have enforced the requirement for parliamentary consent to taxation and the ban on the executive's power to suspend statutes but have been less strict over the dispensing power. Article 9, on parliamentary freedom of speech, is in active use, and developments in Australia and Canada are reviewed. Scotland's own legislation – the Claim of Right – is discussed briefly. Most of the Bill probably does not apply to Northern Ireland. Opinions vary on the Bill's importance but in the author's view it is still a potent force.
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Hahn, Hayley, Johanna Caldwell, and Vandna Sinha. "Applying Lessons from the U.S. Indian Child Welfare Act to Recently Passed Federal Child Protection Legislation in Canada." International Indigenous Policy Journal 11, no. 3 (September 4, 2020): 1–32. http://dx.doi.org/10.18584/iipj.2020.11.3.8206.
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Indigenous children are overrepresented in child protection systems in the United States and to an even greater degree in Canada. Canada has recently passed federal child welfare legislation, Bill C-92, with the goal of affirming the rights of Indigenous Peoples and establishing guidelines with respect to child and family services for Indigenous children. The aim of this article is to contribute to ongoing discussions about the recently passed Canadian legislation, drawing on lessons learned in the United States context. The Indian Child Welfare Act (ICWA), passed in the United States in 1978, has created a legislative paradigm, which in some cases has been bolstered by state-level provisions. The ICWA can provide helpful lessons to consider in Canada as the new legislation is implemented and amended over time. Specifically, we examine elements of the ICWA related to accessibility and compliance with the law, along with deeper analysis of state-level statutes related to adoption provisions in light of the phenomenon of transracial adoption of Indigenous children. As reactions to the Canadian federal law have been mixed, this policy analysis may be supportive of conversations regarding its further development, particularly related to funding and enforcement. On a broader level, considerations of Indigenous community jurisdiction over child and family policies within our discussion are relevant to various settler-colonial contexts.
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Ziegel, Jacob S. "Is incorporation (with Iimited Iiability) too easily available ?" Les Cahiers de droit 31, no. 4 (April 12, 2005): 1075–94. http://dx.doi.org/10.7202/043055ar.
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The incorporation of new businesses in Canada is remarkably cheap and easy, both under the Canada Business Corporations Act and under the provincial corporations statutes. The benefits conferred on shareholders by incorporation are obvious and well known, particularly the advantage of limited liability. Easy incorporation however also imposes significant burdens on the corporation's voluntary and involuntary creditors if the corporation cannot meet its liabilities. The author examines the various statutory and judicially created techniques for restraining the abuse of the corporate form, and finds them seriously deficient. Nevertheless, he sees no likelihood of the legislature reversing a century old trend either by making incorporation much more difficult or by denying directors or shareholders in closely held corporations the protection of limited liability. He concludes therefore that ''second order'' remedies are much more realistic, even if less efficient. He also recommends several new remedies, including the requirement that all corporations must file a copy of their financial statements in a public office and that directors will be held personally responsible for the corporation's debts if the corporation continues to trade when it is clear that it is insolvent and likely to remain so.
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Chotalia, Shirish P. "Arbitration Using Sharia Law in Canada: A Constitutional and Human Rights Perspective." Constitutional Forum / Forum constitutionnel 15, no. 1, 2 & 3 (July 24, 2011): 2006. http://dx.doi.org/10.21991/c9ww9d.
Full textAbstract:
Recently, Canadian media reports warned that the Government of Ontario was considering the implementation of Sharia law as a judicial equivalent to Ontario law.1 Such reports were not accurate. Rather, the issue was whether arbitration by Islamic tribunals using Muslim law, which is often called Sharia law by non- Muslims, ought to be allowed under the auspices of general arbitration statutes.2 A cross-section of Muslim Canadians actively mobilized to oppose such a possibility through coalition- building and letter-writing campaigns.3 In June 2004, Marion Boyd was commissioned by the province to examine the issues surrounding the use of private arbitration to resolve family and inheritance cases, and the impact of the same on vulnerable people. The Boyd Report, tabled in December 2004, recommended that religious institutions be allowed to arbitrate such disputes on the basis of religious law, provided that a list of forty-six safeguards were adhered to.4 After the Boyd Report, some religious groups argued in favour of religious adjudications.5 Much public debate ensued, leading to a vociferous statement by Premier Dalton McGuinty, who vocally rejected religious adjudication.6 Further, the Government of Ontario outlined that it “will ensure that the law of the land in Ontario is not compromised, that there will be no binding family arbitration in Ontario that uses a set of rules or laws that discriminate against women.”7 The province amended its Arbitration Act8 and Family Law Act9 to provide that family arbitrations were conducted “in accordance with Ontario law or the law of another Canadian jurisdiction.”
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Morin, Me Fernand. "Fragilité des limites conventionnelles à l’arbitrage de grief : l’arrêt Parry Sound." Commentaire 58, no. 4 (March 23, 2004): 690–705. http://dx.doi.org/10.7202/007822ar.
Full textAbstract:
Abstract In a recent ruling (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42), the Supreme Court of Canada states that an arbitrator has jurisdiction to hear a dispute that involves rights guaranteed by codes, charters and employment legislation even if the arbitrator has been barred from such recourse under a collective agreement. In the case at issue, an employee with probationary status benefited from maternity leave and was discharged upon her return. Despite the clarity of the wording under the collective agreement stating that a probationary employee may not resort to arbitration, a grievance was filed and was worded as follows: [Translation] “. . . was discharged without reason and this decision is arbitrary, discriminatory, unjust and vitiated by bad faith.” Owing to the rights vesting in the employee under the Employment Standards Act (Ontario), the Board of Arbitration ruled on its own jurisdiction to hear such a grievance. This decision was quashed in judicial review (Superior Court) and but was then upheld in Court of Appeal and once again by the Supreme Court of Canada (majority 7/9). The Supreme Court of Canada began by making several observations concerning the criteria of judgment applicable to judicial review, namely that which is considered patently unreasonable. An attempt was made to distinguish between an unreasonable decision and one that would be patently unreasonable. It seems to us that such a distinction remains ambiguous and further confuses the exercising of a fair judicial review; unreasonableness should not be graded by degrees. In a second approach, the ruling establishes the relationship between State standards (Codes, Charters and employment legislation) and contractual standards. Working from the basis that State standards would be incorporated into the collective agreement, the Court establishes that the limit imposed upon the collective agreement regarding access to arbitration had the practical effect of denying the right to maternity leave, elsewhere guaranteed by law. For this reason, the arbitrator had to intervene and exercise control in order to ensure respect for established standards of public order. To achieve these ends, the Supreme Court of Canada seemed to experience considerable difficulty in qualifying the collective agreement and classified it in the category of private contracts. Such a categorization, confined to the traditional “public/private” dichotomy, dismisses the true legal and desired effect seeking to make the collective agreement a regulatory labour provision complementary to statutes governing public order and intimately related to the latter. In support of his line of reasoning, Judge Iacobucci, on behalf of the majority (7/9), repeatedly referred to the ruling: McLeod v. Egan, [1975] 1 S.C.R. 517. The referrals denied under this ruling are hardly convincing and uselessly weigh down the reasoning. Moreover, Judge Major (dissenting) also referred to it and considered that Judge Iacobucci was reading into the McLeod v. Egan ruling a purport that it just does not have. In all, we believe that the codes, charters and employment legislation serve as the basis upon which the collective agreement is built and, consequently, the parties’ contractual freedom both derives from this basis and is limited thereto. This interrelation would be analogous to that of the Constitution and employment statutes, without it being possible to affirm that the Constitution would be found to be a part of each of these statutes. This ruling is especially interesting because it recognizes the employee’s right to resort to arbitration in order to ensure respect for guarantees stipulated in employment legislation, despite wording to the contrary in the collective agreement. Parties to collective agreements and arbitrators must therefore respectively correct their approach and grant access to arbitration for all employees from the very moment that their fundamental rights are jeopardized in any way.
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Hutchings, Jeffrey A., Julia K. Baum, Susanna D. Fuller, Josh Laughren, and David L. VanderZwaag. "Sustaining Canadian marine biodiversity: Policy and statutory progress." FACETS 5, no. 1 (January 1, 2020): 264–88. http://dx.doi.org/10.1139/facets-2020-0006.
Full textAbstract:
A 2012 Expert Panel Report on marine biodiversity by the Royal Society of Canada (RSC) concluded that Canada faced significant challenges in achieving sustainable fisheries, regulating aquaculture, and accounting for climate change. Relative to many countries, progress by Canada in fulfilling international obligations to sustain biodiversity was deemed poor. To track progress by Canada since 2012, the RSC struck a committee to track policy and statutory developments on matters pertaining to marine biodiversity and to identify policy challenges, and leading options for implementation that lie ahead. The report by the Policy Briefing Committee is presented here. It concluded that Canada has made moderate to good progress in some areas, such as prioritization of oceans stewardship and strengthening of the evidentiary use of science in decision-making. Key statutes were strengthened through amendments, including requirements to rebuild depleted fisheries ( Fisheries Act) and new means of creating marine protected areas ( Oceans Act) that allowed Canada to exceed its international obligation to protect 10% of coastal and marine areas by 2020. Public release of mandate letters has strengthened ministerial accountability. However, little or no progress has been made in reducing regulatory conflict with Fisheries and Oceans Canada (DFO), decreasing ministerial discretion under the Fisheries Act, clarifying the role of science in sustainable fisheries policy, and accounting for climate change. Five future policy challenges are identified: (1) Ensure climate change impacts and projections are incorporated into ocean-related decision making and planning processes; (2) Resolve DFO’s regulatory conflict to conserve and exploit biodiversity; (3) Limit ministerial discretionary power in fisheries management decisions; (4) Clarify ambiguities in how the Precautionary Approach is applied in sustainable fisheries policy; and (5) Advance and implement marine spatial planning. Since 2012, there has been progress in recovering and sustaining the health of Canada’s oceans. Failure to further strengthen biodiversity conservation threatens the capacity of Canada’s oceans to provide ecosystem services that contribute to the resilience of marine life and the well-being of humankind. Unprecedented and enduring changes in the ocean caused by climate change have made the achievement of meaningful progress all the more urgent.
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Blackstock, Cindy. "Should Governments be Above the Law? The Canadian Human Rights Tribunal on First Nations Child Welfare." Children Australia 40, no. 2 (June 2015): 95–103. http://dx.doi.org/10.1017/cha.2015.6.
Full textAbstract:
Many child welfare statutes protect children when caregivers jeopardise their safety and best interests, but what if the risk is sourced in government child welfare policy or practice? Instead of including provisions to hold governments accountable for placing children in harm's way, governments and their agents are largely protected against any systemic maltreatment claims made against them. This paper describes a precedent-setting case before the Canadian Human Rights Tribunal attempting to hold the Canadian federal government accountable for its systemic failure to ensure that First Nations children are protected from maltreatment linked to inequitable federal child welfare funding on reserves. The case is a rare example using an independent judicial mechanism with the authority to make binding orders against the government and enveloping the proceedings in a public education and engagement movement. Implications of the case for child rights in Canada and abroad are discussed.
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Auger, Bernard. "Ce qui est abusif au sens de l'article 8 de la Charte canadienne lors de la recherche de preuves." Les Cahiers de droit 27, no. 4 (April 12, 2005): 965–82. http://dx.doi.org/10.7202/042777ar.
Full textAbstract:
In determining whether legislation permitting search and seizure properly meets the requirements of section 8 of the Canadian Charter of Rights and Freedoms, the courts have been obliged to balance the right of the individual to be secure against unreasonable search and seizure with the right of the state to ensure compliance with the law. In Hunter v. Southam, the Supreme Court of Canada established the minimum criteria of reasonable search and seizure for the purposes of section 8. The liberal approach adopted by the Supreme Court raises an important question : Should the same criteria apply to administrative statutes empowering bodies to conduct inquiries and inspections ? The author compares section 8 of the Charter with the American 4th Amendment, examining the requirement for search warrants in the light of Canadian cases. He then examines and discusses the case law concerning the applicability of section 8 to statutory provisions relating to the production of documents and the standard of reasonableness that should apply to these situations.
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Kennedy, Victor. "The Relationship Between Doctors, Patients and the Law in North American and British Literature." Medicine, Law & Society 9, no. 1 (April 15, 2016): 1–10. http://dx.doi.org/10.18690/24637955.9.1.1-10(2016).
Full textAbstract:
In common law jurisdictions today, the relationship between doctors and patients is generally considered to be a private one (Dorr Goold and Lipkin Jr., 1999). Like most professions, doctors are governed to a large extent by professional associations with their own Codes of Ethics. To practice medicine in the United States, Canada, or Britain, doctors must be licensed by their local Board or College1. Government control of doctor-patient relationships is generally limited to funding, but in a few areas, in particular, those that are considered to be matters of public morality or ethics, criminal statutes can apply. Historically, reproductive rights have often fallen under state control. This paper will compare fictional representations of state interference with reproductive rights in three science-fiction dystopias, Margaret Atwood’s The Handmaid’s Tale (Atwood, 1985), P.D. James’s Children of Men (James, 1992), and Harlan Ellison’s “A Boy and His Dog” (Ellison, 1969), and examine the real-world situations and concerns that these stories comment upon.
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Réaume, Denise. "Language, Rights, Remedies, and the Rule of Law." Canadian Journal of Law & Jurisprudence 1, no. 1 (January 1988): 35–62. http://dx.doi.org/10.1017/s084182090000059x.
Full textAbstract:
When Georges Forest challenged the validity of Manitoba’s Official Language Act in 1976, he opened up the larger issue of the status of the province’s English-only legislation. The courts had little difficulty in concluding that the Act, which purported to make English the only language used in the courts and legislature of Manitoba, violated s. 23 of the Manitoba Act, 1870. This left open the fate of legislation enacted over the preceding ninety years in breach of the obligation to legislate in both French and English. Prima facie, the natural remedy, in the Canadian constitutional context, would be to declare such unconstitutional legislation invalid and therefore of no force and effect. But this would have left the province with virtually no statutory law. To avoid this result the Manitoba Court of Appeal decided that s. 23 is directory rather than mandatory. This decision was appealed to the Supreme Court of Canada. At about the same time the federal government exercised its power under the Supreme Court Act to refer these remedial issues to the Court for its legal opinion. In Reference Re Language Rights under the Manitoba Act, 1870, the Court disagreed with the Court of Appeal’s classification of s. 23 as merely directory, but was equally troubled by leaving Manitoba without any statute law. Therefore, it declared all Manitoba’s statutes since 1890 to be invalid, but deemed the rights and obligations arising under them to be temporarily in force until the province could reasonably be expected to comply with s. 23. In order to reach this unusual result the Court relied on the doctrine of the rule of law. The constitutional remedies issue posed by this case is probably the most challenging that the Canadian courts have ever faced. The Supreme Court’s approach reveals important underlying presuppositions which go unnoticed in less difficult cases.
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Hogg, Peter W. "Constitutional Authority Over Greenhouse Gas Emissions." Alberta Law Review 46, no. 2 (April 1, 2009): 507. http://dx.doi.org/10.29173/alr234.
Full textAbstract:
As awareness and concern about global warming increases, Canada’s federal and provincial governments have responded with policies and programs designed to curb greenhouse gas emissions. However, the Constitution of Canada does not specify which level of government has the requisite power to enact the statutes and regulations needed to effectively deal with this pervasive issue. This article explores the constitutionality of a federal program aimed at lowering emissions across the country and concludes that such a program is within the power of the federal government, notwithstanding the fact that it is also within the power of the provincial governments. The author reasons that the emissions reduction program currently being proposed by the federal government is within its legislative power because its complex administrative procedure ultimately culminates in the requisite prohibition and penalty and has a valid criminal purpose. The article concludes by canvassing other possible heads of power under which the federal government could enact such legislation and by exhorting the federal and provincial governments to co-operate in order to stave off a potentially confusing patchwork of overlapping regulations.
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Scassa, Teresa. "Ambush Marketing and the Right of Association: Clamping Down on References to That Big Event with All the Athletes in a Couple of Years." Journal of Sport Management 25, no. 4 (July 2011): 354–70. http://dx.doi.org/10.1123/jsm.25.4.354.
Full textAbstract:
Ambush marketing activities—such as advertisements that obliquely reference a major event—have frustrated major sport event organizers and sponsors for years. Nevertheless, these activities, so long as they stopped short of trademark infringement or false advertising, have been perfectly legal. In the last decade, major sport event organizers such as the International Olympic Committee and the Fédération Internationale de Football Association have pressured national governments to pass legislation prohibiting ambush marketing as a condition of a successful bid to host an event. Such legislation has already been enacted in the United Kingdom, Canada, South Africa, Australia, and New Zealand, and the statutes in these jurisdictions reveal an emerging right of association. In this paper, the author surveys the evolution of this right and its key features. She offers a critique of this right, and argues that the need for it has never been properly established, and that the legislation is overly broad, does not reflect an appropriate balancing of interests, and may infringe upon the freedom of expression.
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Cordeau, Michel. "L'article 107 de la Loi sur la faillite et les droits des différents créanciers." Le prêt commercial 28, no. 4 (April 12, 2005): 917–38. http://dx.doi.org/10.7202/042847ar.
Full textAbstract:
Section 107 of the Bankruptcy Act of Canada establishes an order of collocation of creditors in a bankruptcy which comes in conflict with the order of collocation set out in many provincial statutes, and in particular, with that set out in the Quebec Civil Code for privileges. This has resulted in numerous court debates between creditors and trustees of the bankruptcy as between different categories of creditors who have seen their rank either lowered or elevated by the application of section 107. In the first part of this article, the author examines the categories of creditors concerned by this inversion, being mainly : the landlords, the Crown and Workmen's Compensation Boards. The second part of this article focuses on conflicts between secured creditors under provincial law and preferred creditors under the Bankruptcy Act. The author emphasises the differences that evolved between Quebec case law and the case law of other provinces particularily as to the scope of application of section 107 when there is a conflict between a secured lender and a lien claimant affected by section 107, on property of the bankrupt in which the trustee in bankruptcy has little or no interest.
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Aronson, Mark. "Some Australian Reflections on Roncarelli v. Duplessis." McGill Law Journal 55, no. 3 (February 10, 2011): 615–40. http://dx.doi.org/10.7202/1000626ar.
Full textAbstract:
Roncarelli v. Duplessis figures far more frequently in Australia’s secondary literature than in its court decisions, and it is noted not for its invalidation of Prime Minister Duplessis’s actions, but for its award of damages where judicial declaration of invalidity would usually be the only remedy. Invalidating Duplessis’s interference with Roncarelli’s liquor licence would have been the easy part of the case had it been tried in Australia. Australian statutes afforded good protection to liquor licensees, and general administrative law principles confined seemingly unfettered discretionary powers in less solicitous statutory regimes. In addition, the constitutional abolition of internal trade barriers used to be taken as banning unfettered regulatory powers over interstate traders. Duplessis’s tort liability was the hard part. His assumption of legal power was not deliberate, but it was extraordinarily indifferent to questions of legality. Justice Rand characterized this as “malice”, which in turn triggered liability to a uniquely public law tort known nowadays as misfeasance in public office. That tort is likely to cover more forms of non-deliberate official misconduct in Canada than in Australia, whose High Court usually avoids open-ended legal principles, particularly those according immediate operative force to substantive conceptions of the rule of law.
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Barbe, Raoul P. "La connaissance judiciaire des actes réglementaires." Les Cahiers de droit 21, no. 2 (April 12, 2005): 427–46. http://dx.doi.org/10.7202/042391ar.
Full textAbstract:
This paper describes the state of federal and Québec law as regards judicial notice of statutory instruments. The position in respect of federal instruments is first surveyed by reference to the provisions of the Canada Evidence Act and Canadian and British cases on the subject ; mention is then made of the now superseded Regulations Act of 1950 and the questions of interpretation that arose from it; and finally the impact of s. 23 of the Statutory Instruments Act of 1971 is evaluated in the light of the Supreme Court ruling in R. v. The « Evgenia Chandris ». The position in Québec law appears to be somewhat more confused. While the rule that regulations should be a matter for judicial notice seems well secured by s. 105 of the Summary Proceedings Act, this obviously only settles the point as regards penal proceedings under provincial statutes. In civil litigation, in the absence of any clear statement that regulations are to be judicially noticed, caution would seem to advise litigants to specifically plead and evidence the existence of regulations they intend to rely on. The author concludes by calling on the Québec Legislature to state explicitly the rule that regulations are a matter for judicial notice in any kind of proceedings.
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Goreham, Richard A. "Le droit à la vie privée des personnes homosexuelles." Homosexualité et droit 25, no. 4 (April 12, 2005): 843–72. http://dx.doi.org/10.7202/042629ar.
Full textAbstract:
This paper examines the idea of personal privacy and how the law has responded to expectations that it be adequately protected. The legal protection of personal privacy is evaluated in light of the concerns of homosexual persons that information about their sexual orientation remain confidential. Although individual privacy is a notion that can be used to argue for a sphere of individual freedom, in the sense that adult individuals should be free of government restriction on how they express themselves sexually in private, this paper focuses on privacy insofar as it relates to the undesired disclosure of information about a person's private life. This is privacy as secrecy, a concept which is concerned with the degree to which we are prepared to allow people to live their lives free from the intrusive prying of others. Whether the idea of breach of privacy as giving rise to civil responsibility has evolved under tort law is reviewed in the common law of both Canada and the United States. The inadequacy of the common law in protecting a general right to privacy has led to the adoption of a number of provincial statutes which create an invasion of privacy tort, and the importance of these in potentially protecting the privacy of homosexual persons is examined. The recognition of a general right to privacy under the Quebec Civil Code and its reinforcement by provisions in the Quebec Charter of Rights and Freedoms completes the analysis of civil remedies for breach of privacy in Canada. For comparative purposes, the development of the « private facts tort » in the American legal system is explored and commented. Informational privacy as it relates to the collection, storage and use of personal information by governments constitutes the focus of part 3 of this paper. It assesses the dangers inherent in the use and storage of personal information by governments in both Canada and the U.S.A. The recognition of the potential for abuse has resulted in the adoption of Privacy Acts in both countries at the federal level and, with respect to Canada, in the province of Quebec. Such legislation seeks to answer the twin preoccupations of when government institutions are justified in collecting and using personal information and when they are justified in disclosing it. These questions are of considerable importance to homosexual persons and this is emphasized in the analysis. Views on the relationship between privacy and social tolerance are offered in the conclusion to the paper.
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Strantz, N. J. "Beyond R. v. Sault Ste. Marie: The Creation and Expansion of Strict Liability and the Due Diligence Defence." Alberta Law Review 30, no. 4 (April 1, 1992): 1233. http://dx.doi.org/10.29173/alr1226.
Full textAbstract:
The Supreme Court of Canada decision in R. v. Sault Ste. Marie created strict liability offences as a middle ground between mens rea offences and absolute liability offences. Strict liability offences allow the defence of due diligence, where the accused has exercised a reasonable standard of care in protecting against the event which occurred. This article examines the acceptance, incorporation and development of strict liability offences and the due diligence defence by Canadian courts, legislatures and industry. In Canadian courts, strict liability and the due diligence offence arise in quasi-criminal, public welfare offences. The reverse onus imposed by the due diligence defence was challenged and upheld in a Charter case. Cases have shown that corporations and directors may be held directly and vicariously liable for the actions of employees and contractors under strict liability principles. Legislatures at both the provincial and federal level have incorporated strict liability and the due diligence defence into a wide variety of quasi-criminal statutes. Industry has responded by taking positive steps to ensure it is complying with legislated standards. The article notes that strict liability is a logical and timely development for Canadian law, as the "due diligence" defence encourages industry's co-operative efforts in the protection of the public interest without hindering regulatory and legal enforcement of public welfare legislation.
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Gorham, Bill. "Global environmental review processes for oil and gas projects." APPEA Journal 51, no. 2 (2011): 696. http://dx.doi.org/10.1071/aj10076.
Full textAbstract:
The environmental review processes for major oil and gas projects vary significantly worldwide. Three LNG projects in WA (Gorgon, Browse and Wheatstone), one in NT (Ichthys), four in Queensland (Queensland Curtis LNG, Gladstone LNG, Australia Pacific LNG, and Shell Australia LNG), and one in Commonwealth waters (Prelude) have all experienced—or are in the midst of—the Australian environmental review processes. The foundation of the environmental review of these projects is anchored in existing state and federal statutes and regulations, but the application to each project varies according to the specific characteristics of each proposal. Similar large scale LNG projects in other countries are subject to analogous processes. Some are as rigorous as those in Australia but there are also some with less well-developed environmental review processes. In the latter cases, either corporate and/or financial institution standards dictate the environmental review processes. This extended abstract reviews the processes that the present above-mentioned LNG projects have gone through or are going through and compares them to similar processes in other countries where large-scale oil and gas projects have been proposed or permitted. The authors compare both the strategic assessment approach taken for the Browse LNG project to the more traditional approach of environmental impact statement/environmental review and management plan used for other recent or present oil and gas projects. The authors also evaluate these reviews in relation to comparable multi-jurisdictional reviews taken in the US, Canada and the UK for their joint federal/state/regional environmental review processes.
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Stotland, Danyl. "{BLR 573} Patent Statute - Canada." Biotechnology Law Report 5, no. 10-11 (October 1986): 333–34. http://dx.doi.org/10.1089/blr.1986.5.333.
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Wood, Roderick J. "Identifying borrowed sources in secured transactions law reform." Uniform Law Review 24, no. 3 (August 1, 2019): 545–75. http://dx.doi.org/10.1093/ulr/unz030.
Full textAbstract:
Abstract The enactment of Article 9 of the Uniform Commercial Code in the USA has had a profound influence on the reform of secured transactions law in other countries. The operational principles that animate Article 9 were first transplanted into Canada and later into New Zealand. In the last two decades, at least 25 countries have passed personal property security legislation (PPSA) based on these principles. On one level, one could claim that Article 9 has been transplanted into each of these 25 countries. However, on another level this story is far too simplistic. If one examines the various statutes, it becomes clear that a more complex process has been at work in which there has been innovation as well as borrowing. These innovations, in turn, influence the borrowings of other countries that enact a PPSA. In this highly dynamic environment the source of borrowing can be difficult to identify. This article examines the nature and extent of the borrowings that occur in connection with the reform of secured transactions in countries that have enacted a PPSA. It will identify three major templates that are available—namely, the most recent version of Article 9, the Canadian/New Zealand model, and the UNCITRAL Model Law. These templates will be reviewed in order to find markers that are present only in that template and not in the other two. These markers will be used to ‘fingerprint’ the PPSA legislation in other countries in order to measure the extent to which the jurisdiction has borrowed from each of the three templates. The article will conclude with a number of observations about the path of secured transactions law reform on an international level.
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Garant, Patrice, and Sylvio Normand. "Le contrôle judiciaire des erreurs de droit en présence d'une clause privative." Les Cahiers de droit 23, no. 1 (April 12, 2005): 5–20. http://dx.doi.org/10.7202/042489ar.
Full textAbstract:
Administrative Tribunals have jurisdiction to deal with questions of law. In the exercise of such jurisdiction they may sometimes make mistakes in the construction of the statutes, regulations or other instruments. Even in the presence of a privative clause, an inferior tribunal should not be the supreme interpret of the law. It is one of the requirements of the « rule of law » that the Superior Court should have a supervisory « droit de regard ». Traditionally, only errors of law going to jurisdiction were out of the shield of the privative clause ; the Superior Courts used to restrain their intervention only after charactarizing the alleged error as « jurisdictional error of law ». Two difficulties came to arise from the approach about whether there exists an error of jurisdiction or one « merely » of law. Firstly, who can tell whether there is a genuine error of law. Secondly, what criteria transmute in the minds of Superior Court Judges an error into one of jurisdiction. The recent case law convinces us of the necessity of a different approach in order to achieve some clarity in this field of Administrative law. Mr. Justice Dickson of the Supreme Court of Canada hints at it in the Nispawin and the New Brunswick Liquor Corporation cases. This approach would put an end to the confusion that still prevail in other Supreme Court cases like Blanco or Labrecque. The distinction between errors of law going to jurisdiction and « merely » errors of law is unrational and so unpracticable that it should be abandoned and replaced by what we suggest in the following lines... Mr. Justice Robert Reid of the Ontario Divisional Court has also expressed the same concern in a remarquable judgment.
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Verge, Pierre. "Vision d'une révision du Code du travail." Les Cahiers de droit 20, no. 4 (April 12, 2005): 901–34. http://dx.doi.org/10.7202/042351ar.
Full textAbstract:
Would a codification of labour law — in the Continental meaning of the word, and not a mere consolidation of existing statutes — enhance the development of this field of law ? Would the resulting instrument be likely to generate more appropriate ways of dealing with labour situations, whether or not they pertain to a collective bargaining context ? Adjective as well as substantive law would have to be involved in such an exercise. The latter aspect raises the fundamental issue of the proper relationship between the general law — civil law essentially — and labour law. What degree of autonomy is necessary to the integrity of the specialized law ? Conversely, to what extent is the general law to be relied upon to provide the necessary second-line set of legal provisions ? For instance, the two sets of legal rules entertain different views as to the termination of the employment relationship and as to the effect of a collective agreement. A well-integrated body of labour law should, in the author's opinion, govern comprehensively labour situation. The codifying process would also aim at eliminating internal discrepancies and a simpler, more accessible legal subsystem would emerge. As to the adjective aspects of labour law, the identification of desirable forms of third-party intervention relating to both collective bargaining and labour standards legislation could lead to appropriate jurisdictional arrangements. In the case of industrial conflicts, of particular interest are the flexible powers of intervention with which the Canada and British Columbia labour boards are endowed. Consideration should also be paid to certain European models — namely the Conseil de prud'hommes — which allow both conciliation and adjudication to take place in the solving of normative law conflicts of application. A full-fledged Labour Code would indeed invite the setting up of a more authentic Labour Court.
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Akthar, Zia. "Acts of State, State Immunity, and Judicial Review in the United States." British Journal of American Legal Studies 7, no. 1 (May 30, 2018): 205–34. http://dx.doi.org/10.2478/bjals-2018-0006.
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Abstract The doctrine of the Act of State and State Immunity has its foundation in common law frameworks. It is settled law that there is no cause of action that will make a foreign state liable in the domestic court of another country. In the United States there has been acceptance that certain cases involve “political questions” that are non-justiciable, as they are not a “case or controversy” as required by Article III of the U.S. Constitution. The courts have only intervened either where the federal statutes have applied extraterritorially, such as under the Civil Rights Act 1964 where a U.S. citizen is employed abroad by a company registered in the United States, or under the Alien Tort Claims Act (ATCA) 1789, which protects foreign parties who are designated sufficiently “alien” for the sole purpose of invoking jurisdiction after a civil wrong has been committed against them. There needs to be an evaluation of the U.S. Supreme Court precedents that have asserted judicial oversight in respect of wrongs committed extra-territorially, and their present rationale for retaining the doctrine. This paper also discusses the scope of the Federal State Immunity Act (FSIA) and the Justice Against Sponsors of Terrorism Act (JASTA) that narrow the concept of state immunity when dealing with terrorism by another state or its agents. A comparative analysis with the state immunity doctrine in Canada and the framework for litigation under the merits-based approach by the courts is provided. The common law courts have developed the doctrine of the Act of State and it has become a principle of customary international law. The argument of this paper is that there needs to be a greater focus on the civil injuries that are caused in other jurisdictions that should allow the claimants to litigate in the forum court and for judicial review to be available.