bluuebunny/crossref_metadata_2025 huggingface dataset:
La Cour Supreme et le Partage des Competences
Authors: Bonenfant Jean-Charles
Published: January 2019

In the B.NA. Act and the Senate Canada has had two limping federative institu tions for over century. This has given more important role to the judiciary in interpreting the constitution than in other countries, Switzerland excepted. From its inception until the abolition of appeals to the Privy Council, the S.C.C. has often been unjustly kept in the shadows; its decisions often contained more of substance than those of the Privy Council. It appears that since 1949 the S.C.C. has rejected literal interpretation of the outdated B.NA. Act and has been prepared to create the law necessary for the political, economic and social functioning of the country. Unless change occurs in our institutions, we may drift into kind of neofederalism that amounts to government by judges. This is result to be feared, no matter how honest the judges or generous their decisions may be. Since the S.C.C. can create law in respect of the division of powers, it is under standable that Quebec, province different from the others, has not always accepted the decisions of the S.C.C. enthusiastically. As long as the S.C.C. was subordinate court its constitutional decisions were not feared in Quebec: rather, there was longstanding fear that the purity of Quebec civil law would be endangered. Since the 1974 amendments to the Supreme Court Act civil appeals will be considerably fewer and Quebec's problem in respect of the S.C.C. will above all relate to the division of powers. Although it would be difficult to specify any anti-Quebec attitudes on the S.C.C. bench, the court is still perceived by most French-speaking Quebeckers as primarily English-speaking institution as distant and strange as the Privy Council, and above all pro-federal tribunal. Several calls for the establishment of constitutional court have been made. Although number of decisions of the S.C.C. over the last twenty-five years have proven to be blessing to Quebec, two recent decisions have been perceived as unjustified federal int
The Supreme Court and Civil Liberties
Authors: Scott Stephen Allan
Published: January 2019

Of the plan suggested by its title (intended to embrace amongst other things some treatment of the Canadian BiU of Rights and relevant aspects of the distribution of legislative authority) this paper as delivered is confined to single part dealing with the rule of law. Roncarelli v. Duplessis, probably the single most celebrated of the Supreme Court's decisions, is chosen as the source of four themes. Each involves conflict between the individual's rights and liberties and governmental power. The author argues that lawful governmental action especially competent legislation and anything which is authorized by competent legislation is damnum sine injuria. Some of the harshest consequences of legislative supremacy have however been mitigated by various common law rules, notably those governing natural justice, the prerogative remedies, mens rea in the criminal law, the condition of reasonable ness implied into at least some statutory powers, and the restriction of subdelegation. The author examines critically the work of the Supreme Court on these subjects, as also on the matter of access to the courts for redress, question central to individual liberty, both as regards the jurisdiction of the Supreme Court of Canada itself, and that of the other superior courts.
The Supreme Court and the Law of Obligations
Authors: Fridman G. H. L.
Published: January 2019

In this article, Professor Fridman criticizes the Supreme Court of Canada for what he feels to be its lack of independence of thought and reasoning in its tendency to apply English precedents rather than to develop its own opinions in the area of contracts, quasi-contracts and torts. He recommends that the Court should analyse problems in depth at every opportunity afforded to it so as to provide greater guid ance for the lower Courts of Canada.
Commentary on Papers Delivered on the Supreme Court of Canada and the Law of Obligations
Authors: McDonald D. C.
Published: January 2019

The speaker noted that the Hon. Emmett Hall, for whom he was substituting, had had experience as trial judge, quality he considers desirable in the appellate courts. He then commented on some of the very early cases of the S.C.C., before proceeding to discussion of Dean Friaman's paper. The speaker discussed aspects in the development of the law relating to trespassers and occupier's liability. He was of the opinion that the S.C.C. was not as mechanistic in its approach to the law of tort as Dean Fridman thought it to be. In commenting on Dr. Beaudoin's presentation, Mr. Justice McDonald noted that the blame for the lack of weight given to French decisions in matters concerning the Quebec Civil Code droit de delits should not be attributed to the S.C.C. but to the Privy Council. In concluding, His Lordship observed that the process of applying for have to appeal to the S.C.C. deserves further study, since the present requirement that the Court dispose of applications for leave which are not accompanied by an oral submis sion increases the cost of appeal particularly for Western cases.
Environmental Impact Assessment: A Comparative Analysis of the Federal Response in Canada and the United States
Authors: McCallum Sandra K.
Published: January 2019

This article examines the planning tool known as environmental impact assess ment. This tool is decision-making model which attempts to integrate en vironmental considerations into each stage of the planning process together with the traditional concerns of economics and technology in order to identify secon dary and cumulative impacts and to weigh environmental effects. The success of an assessment process depends on the capability of the chosen institutional arrangements to achieve the desired goal. The proposed federal procedure is ex amined and several weaknesses identified. One is the absence of legislative measures to support the process. The United States National Environmental Policy Act provides model. This statute is discussed with view to ascertaining whether like legislation in Canada would produce like result. The conclusion reached is that differences between Parliamentary and Congressional systems suggest that in Canada more appropriate course would be to adopt legislative measures which strengthen and improve the existing functions of government. Such course would better serve the goal of environmental impact assessment than attempts to transplant concepts which are ill fitted and insensitive to the parliamentary system.
Legal Problems Involved in the Prescription of Contraceptives to Unmarried Minors in Alberta
Authors: Gilborn Richard J.
Published: January 2019

Mr. Gilborn 's article deals with the thorny problem of the prescription of contraceptives to unmarried minors. In order to appreciate the legal difficulties involved in the area, an examination of the ability of minors to consent to medical treatment in general is undertaken. Using the 'mature minor' rule, as a base, it has to be considered whether the treatment involved is such as to fall within its scope. The article then examines the various ways in which a doctor might be made liable. The author considers possible civil liability, criminal and quasi-criminal liability under the Criminal Code and the Food and Drug Act, and finally the issue of whether the prescription of contraceptives could be viewed as contributing to juvenile delinquency under the Juvenile Delinquents Act. Lastly, the article considers the possibility of disciplinary proceedings launched by professional bodies as a possible risk in the prescription of contraceptives. The article concludes with a series of recommendations as to how the law in this area may berendered more clear not only in the field of the prescription of contraceptives but in the area of a minor's ability to consent to medical treatment in general.
Obscenity
Authors: Fox Richard G.
Published: January 2019

The project staff ofthe Prohibited and Regulated Conduct Project of the Law Reform Commission of Canada state that the uncertainty of the law of obscenity the unevenness of its interpretation and application throughout Canada, and the question of its relevanceasa constituent partofthe criminal law prompted this extensive considerationofwhether the existing law is in need of reform. In his introduction, Professor Fox elaborates on the two fundamental difficulties at the rootofthe problem: first, that obscenity is an inescapably subjective phenomenon; and second, the law's own indeterminacyofaim. He then scrutinizes the plethora of possible subjectmatterfor obscenity and its dissemination; and he proceeds to a consideration of whether the suspectmaterialis obsceneper seorvariable according to susceptibility of the audience. Six possible justifications are offered for legislative prohibitions on obscenity; eachofthese areveryclosely examined and most are found to be tenuous at best. After a rather detailed examination of the cases on the Criminal Code provisions, other Federal legislation touching on the subject of obscenity, and the necessaril11 incidental consideration of defenses and expert witnesses, Professor Fox weighs the possible alternatives to the present law. There cannot, of course, be any definitive answers.
Compulsory Acquisition of the Interest of a Dissenting Minority Shareholder
Authors: Flisfeder A. Maurice
Published: January 2019

The problem of dissenting minority in take-over draws into focus wider issues relating to the nature of corporate organization and the respective rights and obligations of shareholders, as well as the position of the courts in any conflict which may arise. The author examines the Anglo-Canadian approach of compulsory acquisition, with its prerequisite of the forced sale being "bona fide in the interests of the company as whole". This is contrasted to the American ap proach of charter alteration, share redemption, merger, sale of assets to new cor poration, and, perhaps more important, the right to appraisal of shares. It is sug gested that the Anglo-Canadian approach of compulsory acquisition is more convenient method of eliminating dissenting minority than that used in the United States, but that Canada should incorporate the right of appraisal of the American system, and thereby obtain the benefits of both systems.
Sovereignty, State Participation and the Need to Restructure the Existing Petroleum Concession Regime
Authors: Zakariya Hasan S.
Published: January 2019

Serious discontent amongst oil exporting countries with the existing regime of petroleum concessions, particularly in regard to tax rates and levels of posted prices, has resulted in confrontations with concession-holding countries, and much reassessment of the situation. Iraqi lawyer and diplomat, Dr. Zakariya calls on his experience with the Organization of Petroleum Exporting Countries (O.P.E.C.) to discuss some problems inherent in the scheme as it now stands. He looks especially to the issue of state participation and discusses several alter natives such as curtailment of duration or the exercise of the legal right of nationalization open to those countries whose commitment to the existing system will not expire for\ many years. Dr. Zakariya considers the aims of such state participation, as well as the implications and legality of it, concluding in the hope that, with continued united efforts on the part of exporting countries, an amicable level of state participation will be soon realized.
Termination of Employment
Authors: Harrison Rowland J.
Published: January 2019

If as Parliamentary critics would have us believe, more and more Canadians are soon to become "consumers of social services", Professor Harrison's article is indeed timely. In the following pages one aspect of the law of master and servant is explored—that of termination of employment. Looking at both the employee's position and that of the employer, the author discusses the rights and obligations of each when the employment contract has, or is about to be, terminated. Difficult aspects of this area of the law—wrongful dismissal, the defences, the bars, the appropriate period of notice, and the quantum of damages are all discussed, both in their historical context and against the social policies and pressures of today.
Compulsory Unionism: A Strength or Weakness? The New Zealand System Compared with Union Security Agreements in Great Britain and in the United States
Authors: Szakats Alexander
Published: January 2019

In the following article Doctor Szakats evaluates the workers' position with regard to the necessity of membership in union as an indispensable prerequisite for obtaining and retaining work. In particular, he analyzes current employer-union practices and legislation in New Zealand, Great Britain and the United States. The author points out that in New Zealand the relevant statutes apply only to registered workers' associations. However, registered union has the advantages of: monopoly position; blanket clauses; and unqualified preference clauses. The author concludes that the so-called abolition of compulsory unionism in New Zealand does not change the position of workers seeking employment since by virtue of the unqualified preference clauses in nearly all awards and industrial agreements, compulsory unionism has de facto remained in force. In Great Britain, as in New Zealand, relevant statutes apply only to registered associations. Although it has been recognized in Great Britain since 1871 that trade unions are voluntary associations, the theory does not always conform with the practice. As result, certain arrangements can inhibit worker's choice of specified trade union and closed shop agreements may lawfully counteract this right of not joining, thereby introducing de facto compulsory unionism. By way of contrast to Great Britain and New Zealand, relevant legislation in the United States extends to and binds all trade unions. The author concludes that although com pulsory unionism imposed by the state generally weakens the labour movement, compulsory unionism imposed by employer-union agreement strengthens the movement.
Equity, Notice and Fraud in the Torrens System
Authors: Davies G. J.
Published: January 2019

The Torrens land system has been adopted in many jurisdictions, including Australia, Canada and New Zealand, as substitute for the old common law and equity system of land transfer. The various Torrens Acts of these juris dictions contain sections purporting to eliminate the equitable doctrine of notice. The author suggests that although these sections are virtually identi cal their application has varied. The courts of Australia, the Supreme Court of Canada and the courts of Saskatchewan have applied the sections literally to allow registration of transfer to defeat an unregistered interest even though at the time of contracting to purchase the transferee knew of the un registered interest and that his registration would defeat or prejudice it. On the other hand, the courts of New Zealand, British Columbia, Manitoba and Alberta have viewed notice, at least when accompanied by an intention to defeat prior unregistered interest, as sufficient in itself in some cases to constitute fraud upon that interest. The author contends that the sections were intended to keep fraud and notice distinct and that the doctrine of notice should be eliminated in order to achieve security of title. Registration under the Torrens system was intended to provide ultimate protection against other interests. Where it is not possible to effect registration immediately upon the acquisition of an interest, as is generally the case, the caveat pro visions of the various Acts are intended to be and should be utilized to pro tect that interest, thus eliminating the need for the protection provided pre vious to the Acts by the doctrine of notice.
Risk Regulation for the Legal Profession
Authors: Dodek Adam , Alderson Emily
Published: January 2019

This article explores the current state of Canadian legal services regulation and changes that are impacting it. The authors argue that the only legitimate purpose for legal services regulation is the protection of the public interest, and this goal is best achieved through risk regulation. The article discusses four roles risk plays in regulation: as an object of, and justification for, regulation, as an organizing principle, and as a measure of accountability. It includes practical examples and comparisons to other jurisdictions and professions. Finally, the authors recognize that substantial changes will be required to shift to a risk regulation regime for legal services, but that such a change is necessary.
An Analysis of Costs Awarded by the Alberta Energy Regulator
Authors: Fluker Shaun , Dalke Eric
Published: January 2019

This article assesses the costs regime of the Alberta Energy Regulator (AER) (and its predecessor, the Alberta Energy Resources Conservation Board) since its inception in 1978. An analysis of the policy and legal framework governing the issuance of costs awards by the AER shows that the Board now has a wide scope of discretion in deciding whether to grant costs to a hearing participant, and the process appears less transparent than before. A statistical analysis of the AER's recent costs decisions leads to two conclusions. First, costs awards have overwhelmingly been applied to cover participants’ legal fees, and second, in exercising its discretion to make cost awards, the AER seems more discriminate in its evaluation of certain types of experts.
The Prejudicial Effects of "Reasonable Steps" in Analysis of Mens Rea and Sexual Consent: Two Solutions
Authors: Vandervort Lucinda
Published: January 2019

This article examines the operation of “reasonable steps” as a statutory standard for analysis of the availability of the defence of belief in consent in sexual assault cases and concludes that application of section 273.2(b) of the Criminal Code, as presently worded, often undermines the legal validity and correctness of decisions about whether the accused acted with mens rea, a guilty, blameworthy state of mind. When the conduct of an accused who is alleged to have made a mistake about whether a complainant communicated consent is assessed by the hybrid subjective-objective reasonableness standard prescribed by section 273.2, many decision-makers rely on extra-legal criteria and assumptions grounded in their personal experience and opinion about what is reasonable. In the midst of debate over what the accused knew and what steps were “reasonable,” given what the accused knew, the legal definition of consent in section 273.1 is easily overlooked and decision-makers focus on facts that are legally irrelevant and prejudice rational deliberation. The result is failure to enforce the law. The author proposes: (1) that section 273.2 be amended to reflect the significant developments achieved in sexual consent jurisprudence since enactment of the provision in 1992; and (2) that, in the interim, the judiciary act with resolve to make full and proper use of the statutory and common law tools that are presently available to determine whether the accused acted with mens rea in relation to the absence of sexual consent.
Medical Assistance in Dying: Canadian Registry Recommendations
Authors: Carter, Q.C. Rose M. , Rodgerson Brandyn , Grace Dr. Michael
Published: January 2019

Medical assistance in dying (MAID) is a relatively new phenomenon in Canada, and is therefore a growing area of interest in the legal and medical communities. Research is hampered, however, by the lack of a standardized approach to collecting data on MAID cases. The authors first discuss the importance of having comprehensive data to improving preventative and end-of-life care across Canada. The authors then canvas the existing framework for reporting MAID cases in Canada before noting its deficiencies, most importantly, a lack of comprehensive, nation-wide data collection. The authors then propose a model for national data collection based on the existing Canadian cancer registry system.
Rethinking the Ramifications of Reasonableness Review: Stare Decisis and Reasonableness Review on Questions of Law
Authors: Biddulph Michelle
Published: January 2019

The recent fashion in the Canadian law of judicial review is to apply the reasonableness standard of review to virtually any decision rendered by an administrative decision-maker. Reasonableness review is a deferential standard of review that requires a court to ensure that the administrative decision falls within a range of reasonable outcomes that are defensible in light of the facts and law. When reasonableness review is applied to questions of law, the Supreme Court has occasionally ruled that the question admits of only one reasonable interpretation and has affirmed or quashed an administrative decision on that basis.This article addresses the difficult question of whether a judicial decision affirming that a provision admits of only one reasonable interpretation is strictly binding on an administrative decision-maker interpreting that provision in the future. If reasonableness review is premised on deference, then deference ought to apply to an administrative decision-maker’s interpretation of that question in the future, even if it differs from the court’s interpretation. After situating this issue within the principled foundation of the Canadian law of judicial review, this article explores possible solutions to this problem, attempting to balance the need to protect the rule of law against the rationale for deference to administrative interpretations of law in the first place. It ultimately concludes by suggesting that, should Canadian courts continue to apply reasonableness review to virtually all questions of law, a uniquely administrative law approach to stare decisis will need to be developed in order to maintain a coherent and principled system of judicial review.
Alberta’s Oil Sands: An Unsecured Asset? An Analysis of the Mine Financial Security Program in Relation to Surface Mining of the Alberta Oil Sands
Authors: Cook Michelle
Published: January 2019

This article conducts a comprehensive review of Alberta’s Mine Financial Security Program (MFSP), the provincial program that governs the collection of financial assurance for reclamation liabilities (also known as “reclamation liability security,” “financial reclamation sureties,” or “closure bonds”). This article assesses the MFSP program in relation to surface oil sands mining. It concludes that while the recently implemented MFSP has improved some aspects of the oil sands reclamation security regime, Alberta’s MFSP still suffers from issues of transparency, inadequate collection of financial security, and utilization of underinclusive classifications of environmental liabilities. Moreover, this article analyzes the particular risk that oil sands assets have of “stranding” (namely, being unanticipatedly or prematurely written off, downwardly revalued, or converted to a liability) as well as how stranding would impact Alberta’s financial assurance regime.This article concludes that while the oil sands are at a heightened risk for asset stranding compared to the international oil industry as a whole, international oil and gas assets are unlikely to become completely stranded. This article also finds that investors have likely already priced the risk of asset stranding at 1.5–2 percent and will be unlikely to readjust their portfolios unless divestment campaigns strengthen or environmental legislation becomes more certain. The MFSP uses a method that does not account for large fluctuations in oil prices, nor does it sufficiently account for the risk of partial stranding. If asset stranding were to occur, the only way the Alberta government would be able to afford the costs of reclamation would be to paradoxically develop the very resource that was defaulted on, against the environmental legislation or political pressures that caused the stranding.
Waste Not, Want Not: "Waste" as a Tool of Resource Conservation in the Atlantic Canadian Offshore
Authors: Moores Greg , Andrews Mark , Whitehead Amanda
Published: January 2019

As the Atlantic Canadian oil and gas industry continues to mature, offshore regulators face new and varied issues as they work to implement the objectives of the Atlantic Accords. Laws that were largely developed before the Atlantic Canadian offshore contained producing projects are now being applied to a diverse and evolving industry. As is often the case, laws, as expressed on paper, can prove difficult to apply to each unique set of circumstances that arises in practice.Fundamentally, many of the powers of the Atlantic Canadian offshore regulators rely on the concept of “waste.” An offshore regulator can order a company to commence, continue, or increase production of petroleum where it is of the opinion that such an order “would stop waste.” Conversely, the regulators may order a decrease, cessation, or suspension of the production of petroleum for the same reason. In certain situations of “waste,” the Accord Acts provide for a “forced marriage” via compulsory unitization.While “waste” is instrumental to the authority of the offshore regulators, by necessity its definition is open to some interpretation. This article will explore various interpretations of “waste,” and examine the role of waste in the Atlantic Canadian offshore regimes.
May You Litigate in Interesting Times: Specific Performance, Mitigation, and Valuation Issues in a Rising (or Falling) Market
Authors: Gordon Scott R. , Gorman, Q.C. Howard A. , Benediktsson Gunnar
Published: January 2019

This article provides practical insight and strategic guidance regarding how to properly structure the prosecution or defence of a claim in a rising and falling market, and what expert and fact evidence is necessary. First, the article discusses the threshold required to be awarded specific performance and how courts have interpreted Semelhago’s “uniqueness” test, especially in the context of property purchased for commercial investment purposes. Next, if specific performance is not awarded, the valuation date must be chosen. The authors propose a new “hybrid approach” for assessing damages whereby the loss based on actual cash follow up to the date of trial is measured (and a risk adjustment applied to reflect that revenues are never earned risk-free). The net present value of remaining cash flow is then calculated on the basis of the most recent data available at the date of trial. The proposed hybrid approach allows the plaintiff to receive the value of land less the cost to acquire it, plus in every claim month the plaintiff receives the cash it would have earned, but also assumes the risk of operating the land as of that time. Finally, in considering Southcott the authors address some strategic and practical considerations regarding mitigation and the needed evidentiary burden to consider.
Materiality in Franchise Disclosure: An Analysis of How “Material Facts” Have Been Interpreted Under Other Legislation
Authors: Kornhauser David N.
Published: January 2019

As the information imbalance inherent to the franchisor-franchisee relationship can put a franchise purchaser at a significant disadvantage in a transaction, several Canadian provinces have implemented legislation aimed at resolving this disparity. The legislation attempts to strike a balance between empowering potential purchasers in their decision-making process and unduly burdening franchisors with an obligation to produce all information available, regardless of utility. Integral to the determination of what must and need not be disclosed to a franchisee prospect is the concept of materiality, specifically the statutory obligation to disclose “material facts” and “material changes.”  While materiality is inherently contextual and thus cannot be precisely defined, without further guidance from the courts, franchisors will continue to grapple with the extent of disclosure necessary to conduct sound business transactions.
Municipal “Direction, Control and Management” of Local Wetlands and Associated Riparian Lands: Section 60 of Alberta’s Municipal Government Act
Authors: Stewart Judy
Published: January 2019

Section 60 of the Municipal Government Act
authorizes municipal “direction, control and
management” of Alberta’s rivers, streams,
watercourses, lakes, and other natural bodies of water
within the municipality. There is little legal
interpretation of s. 60, and even less municipal water
body management planning, or water management
plan implementation at the local level. In this article
the author reviews s. 60, including the legislative
history of the phrase “direction, control and
management.” Section 60 is interpreted in light of
constitutional doctrines and Alberta Water Act
provisions for water management planning.
“Watershed management planning” is underway in
Alberta pursuant to Water For Life: Alberta’s Strategy
for Sustainability and municipalities have a role to
play.
Cowboy Jurists and the Making of Legal Professionalism
Authors: Pue W. Wesley
Published: January 2019

This article discusses the novelty of the concept of lawyers’ professionalism in the twentieth century. The author discusses the evolution of the structure of legal professionalism in the early twentieth century, outlining the social context in which these changes occurred. Significant reforms were implemented, affecting such matters as the qualifications of lawyers, education and admission to the profession, professional ethics, and the regulatory powers of the professional organizations. The author concludes that twentieth-century professionalism in Canada emerged as a cultural project, undoubtedly influenced by political and social change, as opposed to pure market-based motivations.
Racism and Legal Culture: Is there Room for Diversity in the Legal Profession?
Authors: Brockman Joan
Published: January 2019

The nutshell summary of these articles is that Charles C. Smith tells us what is wrong with the legal profession and optimistically what can be done to improve diversity, and W. Wesley Pue explains, from an historical perspective, why there may be resistence to diversity. I will use their articles as a springboard to comment on racism and legal culture in the legal profession.
Imperfect Duty: Lawyers’ Obligation to Foster Access to Justice
Authors: Woolley Alice
Published: January 2019

Access to justice is an integral component of the legal system. However, the question of upon whose shoulders the obligation of ensuring this access should fall has been widely debated. In particular, do lawyers, as part ofthe legalprofession, have a special obligation to foster access to justice? In this article, the author explores the legitimacy of various arguments with respect to whether lawyers should carry this obligation to a greater extent than other members of society. The author begins by critiquing the traditional arguments related to imposing such an obligation on lawyers — for instance, the refined monopoly arguments. She then goes on to critically consider an alternative argument: that imperfections in the marketfor legal services justify the existence of a special obligation for lawyers. An examination of the limitations of this justification follows. Overall, the author concludes that while the arguments arising from imperfections in the legal market offer the best justification for seeing lawyers have a special obligation to ensure access tojustice, the claims from the argument are modest ones, and any policy response in furtherance of such an obligation should be similarly modest.
Professional Competence Peer Review and Quality Assurance in England and Wales and in Scotland
Authors: Sherr Avrom , Paterson Alan
Published: January 2019

Peer review has emerged as a method of assessing the work of legal aid lawyers in the United Kingdom. The authors show how testing different methods led to review of files emerging as the most effective means of peer review. A number of approaches, including double marking of files, are used to ensure accuracy and consistency among the reviewers. Peer review in Scotland may be more relevant than England and Wales to the Canadian context as the legal professions are of similar size. The authors discuss both criminal and civil work and the application of peer review as well as the outcomes of the pilot projects in the U.K.
Regulating the Market for Legal Services
Authors: Trebilcock Michael J.
Published: January 2019

The regulation of the provision of professional services should be viewed from a consumer protection or welfare rationale. The legal profession should devote fewer of its regulatory resources to input regulation and instead, focus more of its resources on output regulation. A bottom line, output-oriented regulatory regime is what the consumer welfare perspective demands. While there are numerous advantages to the self-regulation of the legal profession, this self-regulation should not be absolute. Rather than moving completely away from the notion of self-regulation or to a form of co-regulation, the current regulatory regime should be tempered with appropriate public accountability mechanisms.
Potential for Performance-Based Regulation in the Canadian Offshore Oil and Gas Industry
Authors: Grant, QC Rob , Moreira, QC Will , Henley David
Published: January 2019

After providing a background and comparative assessment of Performance-Based Regulation (PBR) inother offshore oil and gas sectors, the potential for similar application in Canada is discussed. The developments in these sectors have evolved from a prescriptive regulatory scheme to one that is more PBR based. In such a regime, the governing agency sets out objectives for industry performance that include design and operation objectives, as well as expectations for safety and environmental protection.  It is then up to the individual company to develop a program as to how they propose to achieve these performance objectives, which is then submitted to the agency for review. The discussion centres on the overall compliance and improvements that have been realized by PBR regimes, and the efficiency of the government agencies. The scheme is intended to be more responsive to industry changes and requires more participation by the regulated companies than in prescriptive regimes.  Overall objectives of PBR are to reduce the level of prescriptive measures imposed upon industry by government. while reducing exposure to the risks of offshore oil and gas exploration and development by placing the means ofmanaging the risk in the hands of the operators. The premise of PBR is that these operators are in a belter position to react to changes in technology and risk than are government agencies.
Oil and Gas Transportation: Is Contract a Viable Alternative to Traditional Regulation?
Authors: Brett J. David , Berge Nadine E.
Published: January 2019

The article reviews both the provincial and federal legislative frameworks governing access to oil and gas pipelines, with emphasis on dispute resolution options in the case of access and toll disputes. These codified resolution obligations are compared with the traditional common law common carrier obligations, and it is demonstrated that the latter still play an important role in today's regulatory environment. Key regulatory decisions of both the National Energy Board and the Alberta Energy and Utilities Board are examined to demonstrate both the approaches of these bodies in encouraging settlement of outstanding issues and their attitudes toward yielding regulatory jurisdiction when parties' affairs have been arranged by contract. It is demonstrated that these regulatory bodies still maintain jurisdiction over some aspects of oil and gas transportation even where parties have agreed to privately drawn oil or gas pipeline contracts and will not hesitate to interfere given the right public policy concerns.
The Last Word: Media Coverage of the Supreme Court of Canada, Florian Sauvageau, David Schneiderman and David Taras
Authors: Deturbide Michael E.
Published: January 2019

Book review of The Last Word: Media Coverage of the Supreme Court of Canada, Florian Sauvageau, David Schneiderman and David Taras (Vancouver: University of British Columbia Press, 2006).
Police Use of Force: Assessing Necessity and Proportionality
Authors: Cyr Kevin
Published: January 2019

This article seeks to clarify the limits imposed on police use of force. It argues that police use of force must be necessary, proportional and lawful. Police officers’ safety practice often leads them to act on mere suspicion and contradicts with the probability-based thinking required by law — there must be reasonable grounds to warrant the use of force. Therefore, this article proposes an alternative use of force model adopted by the Edmonton Police. The Edmonton model has been successful in guiding police officers to focus on objectively discernible facts to support their subjective beliefs to meet the threshold on the use of force.
The Case for Broadening the Ambit of Restraint of Trade and for Focusing on Reasonableness
Authors: Bildfell Connor
Published: January 2019

The jurisprudence in the area of restraint of trade reveals inconsistencies concerning what falls within the ambit of a restraint of trade. In addition, the modern employment relationship is of a radically different nature than the employment relationships of the past. This article reviews the historical approach and discusses some recent Canadian jurisprudence on restraint of trade. In light of changes to the employment landscape, this article proposes modifications to the court’s characterization of “restraining” provisions and directs more emphasis towards reasonableness and the interest-balancing process. It concludes with an application of the proposed test for an unreasonable restraint of trade and a defence of the proposed alterations.
Editors' Note
Authors: LeClair Brooklyn , Smith Patrick
Published: January 2019

none
Apportionment of Damages for Contributory Negligence: The Causal Potency Criterion
Authors: Goudkamp James , Klar Lewis
Published: January 2019

The courts in several common law jurisdictions have adopted a causal potency criterion forthe purposes of apportioning damages for contributory negligence. It has recently beensuggested that Canadian courts should follow suit. This article explores the causal potencycriterion. It is argued that the criterion has been left unexplained with the result that it is anempty concept. Moreover, no compelling justification has been offered in support of takingcausal potency into account. Accordingly, adopting the causal potency criterion would bea retrograde step for Canadian tort law.
Alberta's Statutory Privacy Regime and its Impact on the Workplace
Authors: Anderson Sandra M
Published: January 2019

The author describes the tension created by the new privacy legislation between the individual values of personal privacy and the common values of the workplace. There is a detailed discussion of the respective obligations of employers and employees to protect and make accessible personal records held by the employer. The article focuses on various types of employee information, including health information, and discusses in what circumstances they can be disclosed to an employer. Next, the developing impact of the privacy statutes on labour law is surveyed, specifically the rights of unions to obtain employees' personal information. Then the author examines the extent of employee personal information the employer is entitled to have and in what circumstances by surveying three controversial areas: video and other surveillance, drug and alcohol testing and electronic monitoring in the workplace. She concludes that privacy legislation is having a major impact on rights and relationships between employers and employees.
Introduction
Authors: Renke Wayne N , Racicot Marc-Aurele
Published: January 2019

None.
Evicted: Poverty and Profit in the American City, Matthew Desmond (New York: Crown Publishing Group, 2016)
Authors: Lund Anna
Published: January 2019

None.
Recent Judicial Decisions of Interest to Energy Lawyers
Authors: Greenfield Donald E. , McInerney Thomas W. , Laing Ian R.
Published: January 2019

This article summarizes a number of recent judicial decisions of interest to energy lawyers. The authors review and comment on the past year’s case law in several areas, including Aboriginal law, environmental law, employment law, contractual interpretation, enforcement of foreign judgments, surface rights, utility regulation, and selected developments in civil procedure. Specific topics addressed include the availability of summary judgment for operators’ claims in the face of countervailing non-operators’ claims, recent appellate case law regarding the duty to consult, and the application of the “polluter pays” principle in contaminated sites litigation.
Legal and Regulatory Considerations in Plant Decommissioning and Rationalization Plans
Authors: Neufeld Richard A. , Paskuski Geoffrey S.
Published: January 2019

The liability of owners and operators of sites contaminated by industrial activity is imposed at common law and by statute. Under the statutory regime prior to the new Alberta Environmental Protection and Enhancement Act ("AEPEA"), the scope of liability was generally limited to ongoing operations and arguably extended to the active remediation of the site. Further, past owners of industrial sites escaped liability for their pollution-causing activities. Under the AEPEA, more stringent provisions exist that govern the decommissioning process, including significantly increased penalties for non-compliance and the indirect imposition of liability upon past owners and non-operators for pollution-causing events that occurred in the past or during the decommissioning process. The authors recommend a regulatory strategy in regard to a program of site decommissioning associated with gas processing capacity. They point out that potential conflicts arise between the new Environmental Appeal Board ("EAB") and the Energy Resources Conservation Board ("ERCB") as to their respective roles in the rationalization plan approval process. In order to avoid the potential for duplication of public hearings before the EAB and ERCB, the authors recommend that processing capacity rationalization proponents consider submitting an omnibus application to the ERCB detailing all the activities required to implement the rationalization plan.
Introduction – The Future Role of Health Law and Medicare: The Holy Grail of Access, Quality, and Sustainability
Authors: Hardcastle Lorian , Flood Colleen M , Ogbogu Ubaka
Published: January 2019

None.
Efficiency and the Pursuit of Patient Safety
Authors: Archibald Tom
Published: January 2019

Efficiency and patient safety are two important intersecting health policy goals. Efficiency should not be exploited for political expediency, but instead balanced against concerns with patient safety. Too often, the concept of efficiency has been used to justify cost saving or cost containment measures that create further adverse effects. There is clear evidence that nurseto- patient ratios have a direct impact on patient safety, but the government has resisted staffing more nurses on the basis of cost. This causes a greater cost in terms of human suffering and avoidable medical errors. Therefore, efficiency-based claims made by the government should be viewed with caution. Governments should establish a solid evidentiary foundation before advancing any efficiency claims in the health sector.
Autonomy, Equality, and Access to Sexual and Reproductive Health Care
Authors: Nelson Erin
Published: January 2019

The focus of this article is on access to sexual and reproductive health care, an essential aspect of reproductive justice. Although the scope of the problem is unknown, there are reasons to question whether Canadian women are able to access reproductive and sexual health services such as contraception and abortion. The author discusses these issues, and the significance of additional barriers that Canada’s First Nations, Metis, and Inuit women face in obtaining access to reproductive health care services. The author argues that providing meaningful access to sexual and reproductive health care is essential to ensuring women’s reproductive autonomy, and must be part of any political endeavour aimed at ensuring equal status for women.
Next Up: A Proposal for Values-Based Law Reform on Unilateral Withholding and Withdrawal of Potentially Life-Sustaining Treatment
Authors: Downie Jocelyn , Willmott Lindy , White Ben P
Published: January 2019

The unilateral withholding and withdrawal of potentially life-sustaining treatment presents a complex issue of law and public policy. The authors examine the current state of this practice and conclude that it is occurring, being challenged in the courts, and is treated differently in different jurisdictions. The authors review the current state of the law in the United Kingdom, Australia, New Zealand, the United States, and Canada. The authors use Canada as a case study to outline a process for pursuing law reform. The authors propose a model for law and policy reform in this area that is both informed and shaped by the fundamental values of Canadian society.
The Impact of Biological Psychiatry on the Law: Evidence, Blame, and Social Solidarity
Authors: Chandler Jennifer A
Published: January 2019

This article considers the history of biological understanding of mental disorder, and explores the impact of today’s dominant neuroscientific approach on the law. The author argues that this approach subtly affects legal rules and practices, and that these socio-legal effects will likely be enhanced by the increasingly sophisticated use of neuroscience in biological psychiatry. The author illustrates the impact of the neurobiological model using five areas of law: evidence of mental states, the definition of disability in human rights law, criminal responsibility, the regulation of brain interventions, and the regulation of reproductive technologies.
Jake and Josie Get Drunk and Hook Up: An Exploration of Mutual Intoxication and Sexual Assault
Authors: Scott Michael
Published: January 2019

In R. v. Daviault, the Supreme Court of Canada recognized a defence of extreme intoxication to general intent offences, including sexual assault. In the aftermath of Daviault, Parliament swiftly enacted section 33.1 of the Criminal Code. While the lower courts are divided on the constitutionality of section 33.1, its operation precludes a defence of extreme intoxication for some general intent offences. Thus, intoxication can prevent the complainant from giving valid consent, but cannot prevent the accused from forming the necessary intent. How should criminal liability be determined where two individuals become voluntarily intoxicated to the point of incapacity and engage in sex? In theory, the criminal law is committed to the protection of the bodily integrity of all individuals and to the punishment of only the morally blameworthy. However, this article argues that the law’s treatment of mutual voluntary intoxication violates these core principles of our justice system.
PowerPoint's Pedagogy
Authors: Adams Catherine
Published: January 2019

Teacher-student discourse is increasingly mediated through, by and with digital technologies. In-class discussions have found new, textually-rich venues online; chalk and whiteboard lectures are rapidly giving way to PowerPoint presentations. Yet, what does this mean experientially for students? This article investigates college students' experiences of PowerPoint in the classroom. The research asks: What are the tacit and pedagogical dimensions of the PowerPoint presentation for students? The method of inquiry is informed by a hermeneutic phenomenological approach and by the heuristic notions of pedagogical tact and thoughtfulness.