bluuebunny/crossref_metadata_2025 huggingface dataset:
Punitive and Aggravated Damages in Canada
Authors: Hawley Donna Lea
Published: January 2019

The author surveys the law of punitive damages with reference to the conduct of the parties and discusses the types of causes of action giving rise to these damages, their pleading and their assessment. In· concluding that punitive damages are a proper consideration for tort law, the author sets out seven propositions which, if followed in defining the limits of punitive damages, would result in more uniformity in this area of the law.
Some Interesing Aspects of the Alberta Planning Act, 1977
Authors: Elder P. S.
Published: January 2019

This article is the second part of consideration of the Alberta Planning Act, 1977, the first part having been published at 17 Alta. L. Rev. 434. The editors recommend reading the first part as precedent to this article, as this article is conclusion to the first part, rather than an elaboration, and the discussion of development control, development agreements, reserve lands, and interpretation of the Act necessarily follows from the general outline of the Act given in the first article.
The Proper Role of the Lawyer as Legal Representative of the Child
Authors: McHale M. J. J.
Published: January 2019

The increased recognition given to children in legal proceedings today brings into focus the special problems facing lawyer in the role of legal representative of the child. The author outlines the three roles available to the child advocate: the traditional advocate, the neutral officer of the court, the guardian; and considers the suitability of each of these roles in the various legal proceedings in which child may be involved, e.g. juvenile delinquency proceedings, custody proceedings, etc. The personal and professional qualifications required to be com petent as child advocate are examined and the author concludes by emphasiz ing that the multi-faceted role of child advocate requires the lawyer to assume new responsibilities and be willing to develop new skills.
The New Alberta Planning Act
Authors: Elder P. S.
Published: January 2019

The 1977 Planning Act is assessed and compared with the development process under the former Act. The author advocates increased public participation and greater attention to environmental concerns under the new Act.
A Married Woman's Right of Action for Loss of Consortium in Alberta
Authors: Bailey Stella J.
Published: January 2019

The history ofmarried women’s rightofaction for loss of consortium is reviewed. Analysisofthe present state of the law lendstosuggestions for reform, including abolitionofthe action when foundedonenticement
Principles of Matrimonial Property Sharing: Alberta's New Act
Authors: Shone Margaret A.
Published: January 2019

Judicial practice in the division of property upon marriage breakdown led to remedial legislation in the form of Alberta's new Matrimonial Property Act. Interpretation of the new Act, which is limited in scope by its marriage breakdown focus and the provisions for contracting out, will become settled as the case law multiplies. The author discusses some of the issues which will have to be considered by any court in applying the legisla tion: its similarities with Acts in other Commonwealth countries; the meaning of the pro perty within the Act; the effect of the presumption of equal sharing; and possible inter pretations of the guiding factors set out in s. 8. The responsibility of ensuring that the Act is interpreted in remedial spirit is emphasized in conclusion.
Euthanasia and the Law
Authors: Campbell Tom
Published: January 2019

In considering the controversial issue of euthanasia, the author looks at the problems involved in legalizing certain forms of euthanasia, the advantages and disadvantages of "living wills" legislation, and possible civil or criminal liability of doctors who refrain from using extraordinary measures to prolong the life of dying patients. Alternatives to euthanasia and consequent legal developments are also discussed.
Statutory Limitation Periods in Alberta Statutes: 1977 Update
Authors: Of the Alberta Law Review The Editorial Board
Published: January 2019

In the third issue of its 1974 volume the Alberta Law Review pre sented the first comprehensive compilation of limitation periods in Alberta statutes done since 1962. The materials presented in the current volume are an effort to continue this project on an annual basis. The 1974 compilation and subsequent updates were prepared by the Institute of Law Research and Reform at the request of the current editor. The 1976 and 1977 updates have been prepared by the Editorial Board of the Alberta Law Review. While every effort at thoroughness has been made, the Board does not represent the absolute accuracy or absolute coverage of the limitation periods in the 1976 or 1977 Statutes of Alberta. It should be noted that no reference has been made to the Alberta Regulations with respect to limitation periods, and the reader is advised to have regard to the provisions of the Interpretation Act, R.S.A. 1970, c. 189 with respect to the computation of time.
Temptations of the Bench
Authors: Megarry The Hon. Sir Robert
Published: January 2019

In this short but very interesting article, which was originally an address delivered at joint meeting of the Bars of Alberta and British Columbia, the Honourable Sir Robert Megarry discusses some of the problems and temp tations judges face when on the bench. Although the article is written in light, humouri8tic tone, it does give the reader some insights into the workings of the judicial mind.
Intrafamily Tort Immunity: Alberta's Position
Authors: Bailey Stella J.
Published: January 2019

After reviewing the history of intrafamily tort immunity and finding that its juristic foundations have crumbled in an age when, however reluctantly, women have been conceded equal standing in the eyes of the law, the author, with lucidity and boldness, offers suggestions for reform.
The Right to Appeal in Indictable Cases: A Legislative History
Authors: Del Buono Vincent M.
Published: January 2019

The author traces the history of criminal appeals legislation in Canada from the Crown Cases Act of 1848 to the present. Through his analysis he illustrates the various forces giving rise to change and amendment, with special emphasis on the strong and often inappropriate influence of British legislation. In addition, the author examines the aim of national uniformity in criminal procedure, and the way in which appeals legislation has fostered this aim.
Bailee's Liability for Failure to Warn Bailor of Lack of Insurance: Source of the Duty of Care
Authors: Litman M. M.
Published: January 2019

The writer presents a detailed analysis of a recent torts case. Thecase is used as a vehicle for examination of several broader legal issues such as: the scope of the duty of affirmative care generated by the relationship of bailment, the characteristics of relationships which give rise to duties of affirmative care, misfeasance versus nonfeasance, and the principle of Hedley Byrne.
The Floating Trust: Mutual Wills
Authors: Sheridan L. A.
Published: January 2019

In order to give effect to testator's intention equity has recognized the concept of the trust of fluctuating property. The writer discusses this concept within the framework of the law relating to mutual wills. He begins by considering when wills are mutual wills giving rise to trust. He continues with discussion of the extent to which the parties are then restricted in making further wills effective to dispose of the beneficial interest in their property and concludes with consideration of when the trust starts to operate in. 'uding what property is subject to the trust and what powers of disposition inter vivos are removed from the testators who make the mutual wills.
The Law of Forcible Entry
Authors: Foster W. F. , Magnet Joseph E.
Published: January 2019

The author considers the two contradictory interests which the law on forcible entry must try to harmonize, namely the inviolability of the citizen's dwelling place as against the effective enforcement of the criminal law and civil process. He discusses the common law attitude towards forcible entry in civil and criminal matters and its view of the need for announcement prior to such entry. He also deals with developments in the United States in this area and considers the present state of the law of forcible entry in Canada in the light of the decision of the Supreme Court of Canada in Eccles v. Bourque [197S\ S.C.R. 739.
The Concept of a Corporation's Purchase of Its Own Shares
Authors: Phillips Robert L.
Published: January 2019

The purpose of this paper is to examine in detail the concept of corporation's purchase of its own shares. After reviewing the origin and development of the English and Canadian positions (a necessary element since statement of the current law is necessary to determine what, if any, changes should be made) and the corresponding American position, the theoretical nature of the concept will be examined, followed by discussion of the various uses for which corporate share purchase power could be exercised, the potential abuse it could give rise to and the possible statutory safeguards that could be imposed to restrict such abuse.
The Reception of English Law
Authors: Cote J. E.
Published: January 2019

new country is faced with choice in deciding upon system of law for itself. It can either copy someone else's codified law or it can adopt system of law which is largely judge-made. If it opts for the latter it cannot afford to spend centuries building up system of judge-made law. Therefore it must copy the rules of society which has already developed sophisticated body of such law. Most of the Commonwealth nations have chosen the latter route and as result have received English law as their own. The rules and consequences inherent in such a reception are discussed in this article. After short discussion of the distinction between the Imperial law in force proprio vigore and the English law received in the colony as such, the modes of reception of English law are described. In this respect the differences in reception between settled and conquered colonies are outlined. The parts of English law which have been received and the general rules of applicability as well as the applicability of particular areas of the law are also analyzed. The article concludes with discussion of repeal, amendment and reform of imported English law by the country receiving such law. An appendix contains an account of the reception of English law in each of the Canadian provinces. The subject of this article is often considered as part of legal history. It should be stressed however that this is not the case, as all the rules described are rules of present-day law and many of them are being applied and expounded continually, particularly in Australia and Canada. This is the author's second article in this area; the first being The Introduction of English Law Into Alberta, (1964) Alta. L. Rev. 262.
Freedom of Expression - The First Step
Authors: Bushnell S. I.
Published: January 2019

The following paper focuses on the existence of freedom of expression as the recognized leader of all civil liberties. The term "expression" is used since it refers to more than just speech itself. Also, the author discusses the implied Bill of Rights theory and whether freedom of expression is legal concept in our constitution.
Statute of Frauds
Authors: Stollery Douglas
Published: January 2019

The Statute of Fraud is approaching its 300th anniversary. This article analyzes the provisions and workings of those sections of the Statute of Frauds and Lord Tenterden's Act requiring some form of writing for various legal transactions. It begins with brief analysis of the historical framework in which the Statute of Frauds was passed. It then looks at the requirement of writing for contractsdiscussing firstly the operation of the requirement, then the means of avoiding the Provisions of the Statute and finally at the classes of contracts covered by the Statute. The provisions of the Statute as to trusts and of Lord Tenterden 's Act as to fraudulent representations of creditworthiness are similarly analyzed.
The Supreme Court and Civil Liberties
Authors: Tarnopolsky W. S.
Published: January 2019

To what extent has the Supreme Court of Canada tended to promote human rights and protect fundamental freedoms? This question is examined by looking at the bases on which the Supreme Court can protect civil liberties. In decisions prior to 1950 the author finds that the Supreme Court was not protective of "egalitarian" civil liberties. With respect to "political" civil liberties, the author finds the majority judgments of the Supreme Court of Canada of the 1950's inspiring. The enactment of the Canadian Bill of Rights in 1960 provided an important direction to the Court to protect civil liberties. The author feels that the Supreme Court has not yet satisfac torily responded to this direction. However, the Drybones decision recognized the constitutional status of the Bill of Rights and the author supports the argument that it is constitutional instrument.
Challenges for Cause
Authors: Fradsham Allan A.
Published: January 2019

Although the art of challenging for cause is well-developed in the United States, it is not so fully-developed in Canada. In this paper, what Canadian law there is in the area is examined. The purpose is to show the practitioner what pitfalls toavoid and what procedurestofollow. With the increase in the use of jury trials in Alberta, this subject will become more important, not only in the practice of criminal law but, as well, in the civil law field.
Land Rights: The Australian Aborigines Have Lost a Legal Battle, But
Authors: Lester Geoffrey , Parker Graham
Published: January 2019

Concern for aboriginal rights has been mounting in many former British colonies in the last decade. Nowhere is this more true than in Australia where there are no treaties and few statutes which make any attempt to protect the rights of the original inhabitants of the continent. But the decision in Milirrpum Ors. v. Nabalco Pty. Ltd. The Commonwealth of Australia appears to have "blocked further action through the courts and . . forced the debate into the political arena" by refusing to recognize any legal obliga tion on the Crown to take cognizance of aboriginal rights based on customary native tenure as "their relationship with the land could not be characterized as proprietary interest." But the authors submit that the Milirrpum court "failed to discover the existence of communal native title" because they operated in conceptual framework, the law of real property, which was not equal to the task. Instead the authors suggest that such rights stem from the aborigines'status as British subjects (and "central to this issue is the distinc tion between colonies acquired by conquest and those acquired by peaceful settlement"). In colonies acquired by peaceful settlement or annexation the aborigines were British subjects under the protection of the common law. And on the basis of case law, aborigines do have some rights at common law: their title has been characterized as right of "qualified" or "modified" dominion over the land, to the extent, at least, of occupation or enjoyment of the land, which is consistent with the Crown's right of pre-emption (exclusive right to extinguish native title). The authors cite the example of New Zealand and the British experience with the Maoris (where the theory was cessation with consent), offering detailed and careful examination of historical materials to support their view that there does exist doctrine of communal native title. They suggest that where aborigines enjoy the status of British subjects, the Crown's pre-emptive right
The Interpretation of Section 15 of the Immigration Appeal Board Act
Authors: Janzen William , Hunter Ian A.
Published: January 2019

Delegation of discretionary authority to subordinate agencies and tribunals is an increasingly necessary and frequent element of the administrative process. One example of delegated discretion is the power given to the Immigration Appeal Board under Section 15 of the Immigration Appeal Board Act; the Board may stay or quash deportation orders on grounds stipulated in the section. The authors critically examine the Board's interpretation of the enumerated grounds in order to establish the nature of the Board's policy in applying the section. Their analysis of recent Board decisions with respect to Section 15 reveals that under Sections 15(l)(a) and 15(l)(b)(ii) the Board has "evolved impressive guidelines", but that their decisions under Section 15(l)(b)(i) are open to some criticism. The authors suggest that the Board's interpretation of Section 15(l)(b)(i) may actually have "thwarted the inten tion of Parliament." In this connection, they question the Board's preoccupa tion with its own image as court. However, they conclude that, on the whole, the Board has exercised its discretion in line with the intention of Parliament that humanitarian and compassionate consideration be applied to specific cases, and has evolved guidelines which enable it to carry out this intention.
A Symposium on the Appointment, Discipline and Removal of Judges
Authors: Canadian Bar Association ᠎
Published: January 2019

Members of panel at the Annual Meeting of the Canadian Bar Association, 1971, suggest and analyze possible methods of improving the present process of selection and appointment as well as the disciplining and removal of judges. The Chairman, Mr. D. C. McDonald, outlines proposal for system of judicial appointments as suggested by Professor E. A. Tollefson in recent article. From Professor Tollefson's proposal Mr. McDonald extracts several "possibilities" including an intensive training course for judges upon their appointment, periodic refresher courses for all judges and the extension and upgrading of the "research staffs" available to the courts. The Chairman goes on to compare and contrast the disciplinary provisions that are applicable to Supreme, District and Provincial Court judges. Panel member G. M. Stirling, Q.C., who has served on the National Committee on the Judiciary of the Cana dian Bar Association, describes its function and method of operation and concludes that it is only first step in the process towards an improved method of selecting the most competent and highly qualified judges. Mr. Stirling suggests that modified form of the "Missouri plan" could be followed in Canada. The plan would involve the setting up in every province of standing independent commission "which would screen all qualified and available lawyers in the province and submit limited number of names to the Minister of Justice" from which the Minister would make his selection. Panel member, W. H. Hurlburt, Q.C., also endorses an "appropriate adapta tion" of the Missouri plan and goes on to suggest how the nominating commission might be constituted. With regard to the removal and disciplining of judges, Mr. Hurlburt approves of the concept of Judicial Council as set up by an amendment to the Judges Act (S.C. 1970-71-72 c. 55) but suggests that if the Council is to operate efficiently it must have an office and admin istrative staff. Panel member F. C. Muldoon, Q.C., submits that al
Invasion of Privacy
Authors: Williams Jeremy S.
Published: January 2019

The lack of coherent theory of privacy is at the root of the inadequacy of present-day legal measures to afford protection of the indivisible "social space" surrounding each individual Professor Williams, in recog nizing some of the difficulties involved in defining the sphere of an individual's interest in privacy, emphasizes the threat posed by the gathering and dissemination of information about an individual without his knowledge or authority. This threat, says Professor Williams, cannot be neutralized by the individual himself; there must be judicial or legis lative intervention on his behalf. Common law torts, while they do give some protection, are not sufficient: the remedies are both slow and costly, and, of course, are not available to one who is not aware that his privacy has been invaded. Statutory enactments such as those in Manitoba and British Columbia give only broad and general protec tion against invasions of privacy; and other legal protection (which only incidentally affects privacy-intrusive conduct) is both sporadic and limited. rational theory of privacy, the author concludes, is essential to effective protection against invasions ofprivacy.
Custody Orders - Jurisdiction and Recognition
Authors: Castel J.-G.
Published: January 2019

Profxsor Castel discusses the methods used by Canadian Courts in asserting jurisdiction with respect to custody orders. Where conflicts exist between the statutes of one province, they are resolved by closely analysing the intent and scope of the statute concerned and its applicability to the circumstances of the particular case. With regard to conflicts between custody orders made corollary to divorce decree under the Divorce Act, and those made pursuant to provincial legislation, the author suggests that no inflexible rule dictating which order would prevail can be given. The merits of the respective federal and provincial claims within this "co-extensive jurisdiction" can only be decided by means of wide measure of judicial discretion. After enumerating the types of situations where conflicts of jurisdiction may arise and the means used by the courts to assert jurisdiction, Professor Castel argues that the test of ordinary residence should be universally accepted as the most reasonable and realistic basis upon which the courts can exercise jurisdiction, although the courts should still be able to use the criteria of physical presence and domicile if this is in the best interests of the child. With regard to the recognition of foreign custody orders the law, as laid down by the Privy Council in McKee v. McKee is that custody order made by foreign court does not preclude Canadian Court from making an order as it sees fit since the foreign order does not have the effect of foreign judg ment and therefore comity does not demand its enforcement. The author, after observing that this approach encourages a wealthy parent to move child from one jurisdiction to another in search of court that will award custody to him, notes that the McKee decision is not necessarily binding on Canadian Courts and that it has not consistently been followed. He advocates the exercise of wide discretionary power by the courts in the best interests of the child, thus following via media betw
Estate Planning under the New Legislation
Authors: Jones Frank
Published: January 2019

The withdrawal by Federal Government from the estate tax field and the fact that Alberta does not levy Succession Duties or Gift Tax, do not mean that estate planning has ceased to be vital. In this article Professor Jones out lines some effects of the new Income Tax Act in regard to taxes which become exigible upon death. Particular emphasis is placed on the effect of section 70 on the disposition of capital gains and the new concept relating to valuation contained in section 164(6). In addition, the article discusses several techniques to minimize or reduce taxes payable, such as the estate "freeze", the tax-free "roll-over"for property passing to spouse, the transfer of non-capital assets to beneficiaries, the importance of assets being situated in Alberta, the usefulness of the corporate "freeze" and the lawyer's role in the "evaluation of assets" process.
The Legal Characterization of Overriding Royalty Interests in Oil and Gas
Authors: Davies G. J.
Published: January 2019

The question of whether overriding royalties are interests in land or interests in pure personalty, question which has not been decisively answered by the Canadian courts, forms the core of Mr. Davies' article. The author submits that an overriding royalty can be considered an interest in land only if it can be classified as belonging to one of three categories: reservation or exception of title to fraction of the oil and gas in place, or; profit prendre in itself, or at least tenancy in common in profit prendre, or; rent or an interest analogous to rent After examining Canadian and American authorities lending support to each of the three categories the author, extending to overriding royalties the principles presently applied by Canadian courts to lessor's royalties, concludes that, despite some conceptual difficulties, policy considerations favor the cate gorization of overriding royalties as rents or interests analogous to rents. The author submits that such categorization is necessary in order to extend to over riding royalties the protection afforded interests in land.
Rights and Remedies of an Operator Vis-A-Vis a Defaulting Non-Operator under Joint and Unit Operating Agreements
Authors: Bartlett Richard H.
Published: January 2019

"The oil and gas industry is not law unto itself and must operate within the strictures of the general principles of the law of contract and property." Within this framework, the author examines typical terms and conditions of Joint and Unit Operating agreements with view to discerning the nature of the operators' rights and remedies as against defaulting non-operator. Inadequate safeguards within the agreements and inequitable remedies at law are found to exist causing the author to make recommendations as to the drafting of agreements and the enactment of statutory provisions to improve this disadvantageous position.
Non-Disclosure of Evidence, Adverse Inferences and the Court's Search for Truth
Authors: Molot Henry L.
Published: January 2019

Professor Molot examines the interaction of two omnipresent and often con flicting premises of the trial process: the "truth theory" and the adversary system. In order to promote pure adversarial struggle and thereby allow either side to present its strongest case, it would appear necessary to ac cord counsel ultimate discretion as to whether known evidence should be disclosed at trial or concealed. The author observes, however, that such unlimited discretion has been modified by the courts and the legislatures in order to insure the presentation of complete and truthful evidential picture. As result of this necessary modification certain adverse inferen ces of fact have been developed to aid the court in assessing the effect of non-disclosure on the evidence adduced by either adversary. Using the "truth theory" and the "adversary theory" as foundation the author dis cusses the development of adverse inferences in the light of case law, both criminal and civil, in order to define and evaluate some of the underlying principles of the trial process.
The Unbroken Supremacy of the Canadian Constitution
Authors: Bird Brian
Published: January 2019

This article revives the awareness of the heritage and inheritance of section 52(1) of the Constitution Act, 1982. It exposes the pre-1982 legal basis for constitutional judicial review in Canada and the mechanics of the transition in 1982 to an express supremacy clause. This article also challenges two popular notions in Canadian constitutional law today. The first is that the addition of section 52(1) in 1982 transformed Canada from a state governed by parliamentary supremacy into a state governed by constitutional supremacy. The second is that the Canadian judiciary became the guardian of the Canadian Constitution in 1982. Contrary to conventional wisdom, 1982 was, with respect to the supremacy of the Canadian Constitution, a moment of continuity rather than a break with the past.
Vulnerability, Canadian Disaster Law, and The Beast
Authors: Stacey Jocelyn
Published: January 2019

This article argues that Canadian law plays a central role in creating and ameliorating conditions of disaster vulnerability. Using the circumstances surrounding the 2016 Fort McMurray wildfire for context, the article identifies and assesses the shared, structural features of Canada’s emergency management laws and their application to “natural” disasters. This article argues that these laws lag behind foundational social science research on disasters. It argues that Canadian emergency management laws fail to incorporate a multi-faceted vulnerability perspective, which leaves communities unnecessarily susceptible to disaster harm. This article offers some preliminary suggestions on how Canadian disaster law can begin to integrate a vulnerability perspective to rectify existing gaps and flaws at all stages of the disaster cycle.
Recent Judicial Decisions of Interest to Energy Lawyers
Authors: Dixon Olivia C. , Feasby Colin , Lee Jung
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 contractual interpretation, employment and labour law, Aboriginal law, constitutional law, intellectual property, bankruptcy and insolvency, and selected developments relating to summary judgments. Specific topics addressed include the appropriate standard of review, workplace drug and alcohol testing policies, appellate intervention in commercial arbitration, the appropriateness of granting summary judgments, valuation of dissenting shareholders’ shares, a duty to consult, the applicability of municipal bylaws when they conflict with federal legislation, and the rights and obligations of oil and gas companies placed into receivership. For each case, some background information is given, followed by a brief explanation of the facts, a summary of the decision, and commentary on the outcome.
Recent Legislative and Regulatory Developments of Interest to Energy Practitioners
Authors: Milne Carolyn , Warrier Vivek , Sheehan Dierdre , Williams Blake
Published: January 2019

This article provides an overview of recent regulatory and legislative developments from May 2017 to April 2018 of interest to energy lawyers. This includes the legal, political, and economic background to, and consequences of, new legislation and regulatory regimes. Also included are discussions of recent and ongoing judicial and regulatory decisions involving energy law. Topics discussed include market access and pipeline matters, climate change regulation, impact assessment changes, Aboriginal consultation, and abandonment liability.
Gender, Biology, and Third Party Custody Disputes
Authors: Wiegers Wanda
Published: January 2019

This article explores the significance of gender
difference in the custodial claims of biological parents
where de facto care of children has been transferred to
unrelated parties. Drawing on media accounts, the
trial transcript, and the 2007 decision in Hendricks v.
Swan (the “Saskatoon Dad” case), as well as an
extensive survey of similar reported cases, the author
identifies changes in the construction of birth mothers
and genetic fathers over time, both as claimants and
non-claimants of custody. The author contends that
despite significant differences in their biological roles,
mothers and fathers are constructed as formally equal
claimants in this context. Both mothers and fathers
nonetheless lose out more often than not to third
parties, often on grounds of instability rather than
bonding. The role of gender in the application of the
best interests test to claims by biological parents,
particularly the extent to which gendered norms affect
assessments of stability, is analyzed. In relation to
biological non-claimants, the author addresses the
erasure of the birth mother’s experience in Hendricks
through the use of a formal equality lens and examines
assumptions regarding non-disclosure of paternity that
privilege the interests of genetic fathers. In
conclusion, potential ways of avoiding or minimizing
the trauma associated with these cases are briefly
canvassed.
Rethinking Suresh: Refoulement to Torture Under Canada’s Charter of Rights and Freedoms
Authors: Jenkins David
Published: January 2019

This article takes the European Court of Human
Rights’ decision in Saadi v. Italy and uses it as an
opportunity to re-examine the Canadian case of Suresh
v. Canada (Minister of Citizenship and Immigration).
The author argues that the national security exception
in Suresh is no longer tenable in light of subsequent
developments in both international and Canadian law.
The author concludes that the Supreme Court of
Canada should reject the Suresh exception at its first
opportunity and adopt an approach to review of
refoulement cases similar to that under the United
Nations Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment and
the European Convention for the Protection of Human
Rights and Fundamental Freedoms.
The Canadian Environmental Assessment Act and Global Climate Change: Rethinking Significance
Authors: Kruger Toby
Published: January 2019

Environmental assessments conducted under the
Canadian Environmental Assessment Act turn on the
key finding of whether a proposed project is likely to
cause significant adverse environmental effects.
Despite the importance of “signifcance” in the
assessment process, the lack of objective criteria to
determine when the threshold of significant has been
reached in the greenhouse gas emissions context has
made the process ineffective. This prevents meaningful
judicial review and the regulatory scheme from
properly confronting climate change. The article
examines how significance might be objectified under
the current regulatory and government policy
framework, including the possibility of establishing
benchmarks, assessing relative significance by
comparing the proposal to alternatives, and the use of
mitigation strategies.
R. v. Cairn-Duff: A Look into Media Access to Court Exhibit
Authors: Roy Adrienne
Published: January 2019

It is firmly established that judges possess a discretionary power at common law to
prevent the media from accessing and broadcasting court exhibits in certain circumstances. In Sylvester, Minden J. held that “[a]s custodian of the exhibits, the court is entitled to
regulate the use to be made of the exhibits and to take steps to ensure it does not become an
unwitting party to their misuse.” However, this discretionary judicial power should be
exercised in accordance with general legal principles, case law, and statutory provisions so
that consistent judgments in this area of law are rendered. In departing from the jurisprudence
that demonstrated a general trend to favour media access to court exhibits, Cairn-Duff, a
2008 Alberta Court of Queen’s Bench decision, is a noteworthy judgment in its
interpretations of certain principles, its consideration of previously unacknowledged
practicalities, and its shift in onus to the media of having to prove its access is warranted.
Cairn-Duff essentially devised a new approach for deciding whether media access to court
exhibits should be granted, which, if followed in subsequent cases, will have a rather
sweeping effect of restricting media access to court exhibits for the purpose of broadcast.
Come on Mann Don’t Search Me! A Case Comment on R. v. C.J.F.
Authors: Johnston Michael A.
Published: January 2019

In Mann the Supreme Court of Canada confirmed that the police have the power to detain
individuals, albeit briefly, for investigative purposes. The Court also supplemented this
power with the power to conduct protective searches incident to these investigative
detentions (PSIIDs). While the Court made it clear that the power to conduct these searches
was not incident to every investigative detention, this power should, nevertheless, be
regarded dubiously. The conditions required to conduct a PSIID are lower than those
required for a peace officer to make an arrest without a warrant under s. 495 of the Criminal
Code for violations of ss. 884
or 905
of the Code. Allowing the police to wield both of these
weapons against “crime” augments police power to engage in warrantless searches, and
concomitantly decreases individual rights.
The recent decision of the Saskatchewan Provincial Court, Youth Justice Court, in C.J.F.,
illustrates the corrosive effect that Mann and its PSIIDs can have “on the right of individuals
to walk the streets free from state interference.” C.J.F. challenges us to ensure that Mann
is being properly applied, but it also challenges us to understand the effect of having PSIIDs.
Let the Chickens Run the Henhouse? Democratizing Pension Funds: Corporate Governance and Accountability by Ronald B. Davis
Authors: Bauslaugh Randy
Published: January 2019

The central thesis of this interesting, but clearly labour biased book, is that employees or
plan beneficiaries ought to exercise greater decision-making control over the pension funds
they participate in. In this way, Professor Ronald Davis argues, investee corporations can be
influenced to behave with greater social, ethical, financial, and environmental responsibility.
Notwithstanding its arguably optimistic if not naïve view of the potential benefits of
democratizing pension fund governance, this book deals with many themes that highlight
deficiencies in governance and accountability that many practitioners in the pension industry
would likely admit should be addressed.
Regulation and the Legal Profession
Authors: Law John M.
Published: January 2019

You will be pleased to know that my closing comments will be brief for two reasons: first, we have come to the end of an intense day of sessions; and second, time does not permit an intensive analysis of our panel’s presentations, which I believe speak for themselves. To begin with, I wish to thank all the members of the panel for their thoughtful and interesting presentations which have offered us a number of perspectives on the regulation of lawyers, particularly self-regulation. They have enriched our understanding of the salient issues and have clearly demonstrated that the regulation of lawyers is a very difficult and complex question, particularly for an increasingly fragmented and stratified profession. Having said that, let me make a couple of brief comments about the regulation of lawyers...
Where Have All the Women Gone?
Authors: McLellan A. Anne
Published: January 2019

It is a pleasure to be here this evening at the end of that which I know has been a stimulating and challenging set of panel discussions on lawyers and the legal profession in the twenty-first century. I do not intend to revisit your discussions of earlier today. When thinking about the perspective I might offer this evening, I reflected upon my time as Minister of Justice and Attorney General of Canada as it related to your conference theme. Ministers of Justice are regularly faced with the assertion that the public is losing, or worse, has lost, confidence in the justice system and in key participants within the system, particularly lawyers (and to a much lesser degree judges). The public continues to express a high degree of confidence in the police. There have been many surveys, polls, and focus groups done, both in Canada and around the world, regarding confidence in aspects of the justice system...
Foreign Investment Protection Treaties: Opportunities in the Petroleum Industry
Authors: Boscariol John W.
Published: January 2019

Over the last decade or so, foreign investment protection and promotion agreements have grown dramatically in number and in strength. The investment obligations and dispute resolution provisions available in these agreements have emerged as an attractive option for businesses seeking protection of their investments in foreign jurisdiclions.  The author presents an overview of Canada's existing investment agreements and provides a specificapplication of these agreements in the oil and gas sector by reviewing a recent arbitration decision.
Holmes on Law and Morality
Authors: Strasser Mark
Published: January 2019

This article explores Justice Holmes' position on the relationship between law and morality, and discussessome of the mistaken interpretations of that position.  Commentators' claims to the contrary notwithstanding, Holmes 'predictive theory of law and his discussion of the "bad man" do not illustrate the separation between law and morality but merely that lawful actions need not be performed for morally praiseworthy reasons and that positive law and morality do not always coincide. He suggested that the conflation of law and morality might be reduced by changing legal terminology so that moral and legal terms would not overlap, a proposal with possible drawbacks that Holmes did not seem to appreciate.  That said, however, detractors overestimate the extent to which Holmes asserted that law and morality should be distinguished, thereby distorting both Holmes' views and the value of his insights.
"Practical Necessity" or "Highly Sophisticated Opportunism"? Judicial Review and Rate Regulation After ATCO Gas and Pipelines Ltd. v. Alberta (Energyand Utilties Board)
Authors: Woolley Alice
Published: January 2019

Case comment on ATCO Gas and Pipelines v Alberta (Energy and Utilities Board).
Restrictions on Disposition in the Oil and Gas Industry: The Extinction of the Species?
Authors: Tarnowsky Gordon L. , Pittman Miles F. , Wilton Carolyn
Published: January 2019

Restrictions on disposition in the oil and gas industry, predominantly rights of first refusal, can create significant uncertainties in oil and gas transactions, particularly complex ones. In an effort to discern trends in judicial approaches, the authors review Canadian jurisprudence dealing with difficult rights offirst refusal issues against the backdrop of academic and professional commentary in the 1990s, which promoted the establishment of judicially developed "default rules" to ensure interpretive certainty. The authors postulate that parlies ought not to presume the existence or application of "default rules" in the interpretation and application of restrictions on disposition, based on the jurisprudence. Rather. parties ought to focus on considered drafting when preparing agreements and. where uncertainties arise defaut in the application of provisions, ought to contemplate the reasonable expectations of the parties to the agreement.
Recent Regulatory and Legislative Developments of Interest to Oil and Gas Lawyers
Authors: Jeffrey Paul , Chao Gloria
Published: January 2019

Surveyed herein are the recent regulatory and legislative developments of significance to the oil and gas industry. This article canvasses decisions of the courts, bulletins from national and provincial regulatory bodies, and legislative initiatives to provide a comprehensive update for the oil and gas lawyer.
Agricultural Biotechnology and the "Early-Working" Exemptions Under the Patent Act
Authors: Phillipson Martin
Published: January 2019

The author explores the availability to genericmanufacturers of two research exemptions under the Canadian Patent Act.  In order to expedite later market entry, processes of research and development and federal product approval are often initiated prior to patent expiry. The question arises of when these "early-working" endeavours will violate the protection offered hy a patent. The "research exemption " has been interpreted narrowly, and may only be of limited use to potential manufacturers engaging in early development of protected products. However, the "regulatory approval exemption" has been given a wider interpretation, both in Canada and the United States, and it is likely that processes related to regulatory approval will not as readily be considered as patent infringing. Finally, the author also briefly explores commercial and strategic considerations as they relate to these legal issues.
Prior Occupation and Schismatic Principles: Toward a Normative Theorization of Aboriginal Title
Authors: Newman Dwight G.
Published: January 2019

There are two divergent principles underlying theconstitutional recognition of Aboriginal title in s. 35(1) of the Constitution Act, 1982 the historically-oriented principle of "prior occupation, " and the forward-looking principle of "reconciliation. " A closer look at the principle of "prior occupation " reveals several possible rationales behind its requirement in the test for Aboriginal title: to promote economic efficiency; to ground a natural right of ownership; and to function as a proxy for the protection of individual or group identity.  However, each of these rationales fails to adequately respond to both previous jurisprudence in the area and the need to achieve a just and legally sound system for determining future claims. If "prior occupation" is instead understood as a proxy for "community connections to land," then the primary interests at stake are more clearly revealed. It is then possible to develop a principled and more consistent way of dealing with Aboriginal title claims in a way that respects the interests of all involved.
The Securities Transfer Act— The Radical Reconceptualization of Property Rights in Investment Securities
Authors: Khimji Mohamed F
Published: January 2019

The Securities Transfer Act (STA), which came into force in Alberta and Ontario on I January 2007, is based on the U.S. Uniform Commercial Code Revised Article 8 and reflects a radical reconceptualization of property law investment securities. This article analyzes the conceptual and policy choices behind the STA, focusing on the legislation's functional approach with respect to defining assets held by investors who hold securities through intermediaries, the property rights of such holders, cross-border settlement conflict of law rules, security interests investment property, and conveyancing rules. This article also responds to conceptual and policy-based criticisms directed at the legislative model employed by the STA. The author argues that the STA's functional approach nevertheless significantly contributes to a more accurate understanding of property rights in relation to intangible assets. Also, claims that property rights of prior holders are protected inadequately are analyzed and discussed.
On ATCO Gas and Pipelines: A Reply to Professor Woolley
Authors: Kay Q.C. H. Martin
Published: January 2019

No Abstract
Through a Glass Darkly: The Role and Review of "National Security" Concepts in Canadian Law
Authors: Forcese Craig
Published: January 2019

The expression "national security" or its close similes lacks a precise meaning, even in the public policy literature. Nevertheless, the concept appears in over 30 federal statutes. In most instances, the term is undefined, an important oversight in light of the significant powers these statutes accord the government. Under these circumstances, how courts review government invocations of "national security" is of real importance. With some exceptions, courts applying s. 7 of the Charter and standard administrative law doctrines have accorded substantial deference to government national security determinations. When largely deferential substantive review of the ambiguous concept of national security is coupled with the ex parti and in camera context in which these cases are often heard, the net effect is to leave government with a freer hand in national security matters than in other domains of administrative decision making. Several possible responses to this problem are proposed.
Sexual Exploitation and the Criminal Code
Authors: Patrick Jeremy
Published: January 2019

No Abstract
The National Energy Board: Regulation of Access to Oil Pipelines
Authors: Hocking Jennifer
Published: January 2019

In the past few years, a number of long-distance oil pipelines have been proposed in Canada — Northern Gateway, the Trans Mountain Expansion, Keystone, and the Energy East Project. This article describes the criteria used by the National Energy Board in approving the allocation of capacity in oil pipelines to firm service contracts while requiring that a reasonable percentage of capacity is allocated for uncommitted volumes (common carriage). It explains the economic theory related to regulation of access to major oil pipelines. It reviews and analyzes relevant NEB decisions, which show that the NEB supports well-functioning competitive markets, but will exercise its discretion to resolve complaints where markets are not functioning properly. The article also explains the economic significance of the proposed long-distance oil pipelines to Canada and Alberta despite the current low price of crude oil. The article concludes with recommendations for a written NEB policy regarding access to capacity in oil pipelines.