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This paper argues that there is a fundamental conceptual gap between the cases of Doré and Vavilov. This is because both cases are motivated by different conceptions of administrative law. In Vavilov, the paper suggests that the Court melded together two theories of judicial review; a Diceyan theory based on a harmonious understanding of the principles of legislative sovereignty and the Rule of Law; and a "culture of justification" for administrative decision-makers. On the other hand, Doré is motivated by a functionalist understanding of administrative law, in which the expertise of decisionmakers is emphasized. The paper explores the doctrinal gap and suggests two ways in which it might be bridged. First, Doré might be recalibrated to bifurcate the standard of review analysis, so that decisions implicating the scope of Charter rights are reviewed more stringently. Second, Vavilov's justificatory standards might be imported into the Doré context. [ABSTRACT FROM AUTHOR]

It has now been over 15 years since Canada enacted the Anti-Terrorism Act, codifying what we think of today as Canada's anti-terrorism criminal laws. The authors set out to canvass how these provisions have been judicially interpreted since their inception through an empirical analysis of court decisions. After exploring how courts have settled initial concerns about these provisions with respect to religious and expressive freedoms, the authors suggest that courts' interpretations of Canada's terrorism offences still leave us with many questions, particularly with respect to the facilitation and financing offences. The authors explore these questions and speculate about future challenges that may or may not be successful with the hopes of providing guidance to prosecutors and defence lawyers working in this area. [ABSTRACT FROM AUTHOR]

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. [ABSTRACT FROM AUTHOR]

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. [ABSTRACT FROM AUTHOR]

This article addresses the phenomenon of Organized Pseudolegal Commercial Arguments (OPCA) from the lens of inter-partner disputes. The author begins by briefly reviewing the history of OPCA in Canada, and then proceeds to conduct a Canada-wide survey of OPCA judgments that involve inter-spouse conflict. One of the primary cases focused on is the Alberta judgment, Meads v. Meads. The author finds that there are few OPCA judgments to draw from, which he concludes is a result of the character of OPCA pseudolegal concepts. These concepts are typically intended to target government and institutional actors, rather than private individuals, meaning that these arguments are ill suited to family law situations. [ABSTRACT FROM AUTHOR]

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. [ABSTRACT FROM AUTHOR]

The article discusses the jurisprudence on freedom of association as a groundbreaking for labour lawyers and constitutional lawyers in Canada. It reviews the Supreme Court of Canada's 2015 cases on freedom of association which also known as the 2015 labour trilogy. The article also discusses that the trilogy reinvigorates the values of the Canadian Charter of Rights and Freedoms.

The article discusses the three cases of the Supreme Court of Canada in which constitutional protection of freedom of the Canadian Charter of Rights and Freedoms was invoked to challenge different labour legislation. The labour relations cases cited in the article are Mounted Police Association of Ontario v Canada, Meredith v Canada and Federation of Labour v Saskatchewan.

The "conflicts quartet" of cases decided by the Supreme Court of Canada can be understood as part of a long-standing tension in Anglo-Canadian jurisprudence between two competing conceptions of a lawyer's professional identity. In the most recent of these cases, C.N. Railway v. McKercher, the Supreme Court conclusively preferred the loyalty-centred conception of the practice of law over the entrepreneurial conception. While the Federation of Law Societies of Canada amended its Model Code of Professional Conduct in 2014 in response to the Supreme Court's decision in McKercher, this article argues that those amendments did not go far enough. The authors propose a more substantial set of modifications to the Model Code to better entrench the duty of loyalty as a foundational principle of legal ethics. These amendments, they argue, would better reflect the reasoning in McKercher and would provide lawyers with a lodestar to guide their ethical judgement. [ABSTRACT FROM AUTHOR]

The workload of the Supreme Court of Canada is shared among the Court's nine members, but is this sharing equal with respect to the writing of judgments? A simple count does not provide an answer because not all cases are equally important. This paper develops an objective measure of case importance--the Legal Complexity Index--and applies it to the cases decided by the McLachlin Court. It demonstrates that judgment-delivery opportunities for significant cases have not been shared equally, either overall or with respect to any of the major subdivisions of the caseload. Some judges enjoy the spotlight, while others are relegated to the margins. An assessment of the major correlates of this inequality--gender, seniority, and the "Chief Justice factor"--indicates that their combined impact poses a significant challenge for the Court. [ABSTRACT FROM AUTHOR]

The article discusses the decision of the Supreme Court of Canada to the constitutional question of the government of Quebec concerning the federal law repealed by the Parliament in 2012 which established a mandatory long-gun registry. Topics discussed include the judicial history of the constitutional challenge of the government of Quebec, the majority judgment in the Supreme Court, and the constitutional implications of the use of the Canadian Firearms Registry (CFR) data.

What is Canada's actual legal model to govern its corporations? Recent landmark judicial decisions indicate Canada is shifting away from an Anglo-American definition of shareholder primacy. Yet the Canadian securities commissions have become increasingly influential in the governance sphere, and by nature are shareholder-focused. Shareholders' rights have increased well beyond what was ever contemplated by Canadian corporate laws, and the issue of greater shareholder vs. board control has now become the topic of live debate. These conflicting theoretical positions have enriched the dialogue on the current environment of Canadian corporate governance. This qualitative study brings together some of Canada's leading senior legal practitioners to opine on the fundamental principles that are driving the development of Canadian corporate governance. Taken within the context of today's legal and regulatory environment, their insights piece together the framework of a Canadian model of corporate governance to further director knowledge and help inform future research [ABSTRACT FROM AUTHOR]

This is an exact reprint of an article published in 1978 in Volume 16 of the Alberta Law Review. It is the story of the last appeal to go from Canada to the Judicial Committee of the Privy Council, as told by the late Justice Morrow of the Supreme Court of Alberta Appellate Division. This article not only describes the background to a historically significant case that went through the Appellate Division, but also provides the unique perspective of one of its former members. As noted in the original abstract, "[t]he material contained in the reported decisions is interesting but it is hoped the reader will find that the story back of the reports is even more interesting." [ABSTRACT FROM AUTHOR]

This article surveys rape law reform efforts in Canadian criminal law by mapping these changes onto the decisions of the Alberta Court of Appeal. First, the article outlines how decisions in the 1970s and 1980s reflected ideas and assumptions about sexual offences. It then traces how these ideas were challenged in law reform efforts in 1983 and 1992. Next the article turns to the definition of non-consent and the Ewanchuk case, and how the reasons at the Court of Appeal reflect evolving attitudes to sexual assault. Finally, the article ends with reflections on sexual assault law following the Ewanchuk decision. [ABSTRACT FROM AUTHOR]

This article describes several cases heard by the Alberta Court of Appeal during the first five years after the Charter was proclaimed. In doing so, it highlights the key contributions made by the Court of Appeal to early Charter interpretations. It further explores how the Alberta Court of Appeal's Charter judgments were received by the Supreme Court of Canada. It outlines the contributions that these judgments made to foundational principles of Charter interpretation and ultimately concludes that the Alberta Court of Appeal had a significant role in shaping how the Charter was understood and applied. [ABSTRACT FROM AUTHOR]

This article discusses the role of judicial review in access to information regimes in Canada. It provides a review of recent court decisions that show how the Canadian courts are actively supervising the exercise of administrative discretion over access to information. It argues that although efforts to reform Canada's access to information legislation have so far been met with limited success, the judiciary has provided significant and important scrutiny, providing a key means of enforcing access to information rights in Canada. [ABSTRACT FROM AUTHOR]

Evaluation of legislation and procedures in place to help recover species at risk of extinction is an important component of conservation efforts. Despite its biological importance and key role in species protection and recovery legislation, identification of critical habitat is inconsistently applied. We analyzed data from 126 recovery strategies implemented under Canada's nascent (2002) Species at Risk Act (SARA) to determine how lead agency, Federal Court rulings, and the proportion of independent team members influenced identification of critical habitat. Only 17% of strategies led by the Department of Fisheries and Oceans included critical habitat, compared with 63% of strategies led by Environment Canada, indicating that aquatic species at risk are much less likely to have critical habitat identified. A 50% increase in recovery strategies that identified critical habitat following precedent-setting court judgments suggests that legal action by nongovernmental organizations played a key role in the evolution of recovery policy for species at risk in Canada. The proportion of independent scientists on a recovery team was statistically unrelated to identification of critical habitat at a national scale, but case studies indicate that independent team members may play an important role in ensuring compliance and transparency during recovery planning. [ABSTRACT FROM AUTHOR]

Christie v York has pride of place among decisions wrongly decided in Canadian legal history. Fred Christie and two friends were on their way to a hockey game when they entered the York Tavern at the Montreal Forum, seeking a beer before the game, and the York denied them service on the grounds of race. Or so the facts tell us. As it turns out, a significant error has long been woven into the story of Christie v York. What were Christie and his friends doing that night at the Forum? This article reveals that they were not attending a hockey game. The real facts, long hidden from view, involve a hot summer night, the Canadian Olympic boxing trials, Joe Louis, American race riots, and a local black boxer. And yet, even in error, hockey matters in the case, especially in Justice Henry Davis's famous dissent. Recasting Christie as a case that turns on the judicial construction of facts, this article highlights the importance of real space and circumstance in creating notions of identity, belonging, and equality. While Christie's errors of law have been the principal source of interest among legal scholars to date, this article argues that Christie's facts, both real and imagined, provide a far richer contribution to the legal history of the complex relationship among race and space and law. [ABSTRACT FROM AUTHOR]

Two recent unanimous decisions from the Supreme Court of Canada in Galambos v Perez and Alberta v Elder Advocates of Alberta Society have narrowed and refreshed the requirements for recognizing fiduciary relationships and obligations. All fiduciary obligations must be founded by an undertaking, either express or implied, on the part of the fiduciary to act in the best interest of the beneficiary. At the heart of the fiduciary obligation, the undertaking of a fiduciary may also serve as a foundation for the goals of fiduciary accountability. The developing "Galambos approach" remains incomplete in its application in this regard. In the spirit of Galambos and Elder Advocates, I propose that the undertaking of the fiduciary can provide principled guidance in the availability of gain-based relief for breach of fiduciary duty. Particularly, I suggest that the imposition of a constructive trust as proprietary gain-based relief may be rationalized under the objective of perfecting or enforcing the fiduciary undertaking. To demonstrate my proposal, I investigate three example undertakings and breaches of fiduciary duty in which the fiduciary acquires property through the breach of duty. By grounding this overall discussion towards a conceptual remedial goal of enforcing the fiduciary's undertaking, Galambos may spark the development of a principled approach to understanding both the making and the breach of fiduciary obligations. [ABSTRACT FROM AUTHOR]

R. v. Arcand was no ordinary sentence appeal. It was a reconsideration of four previous Alberta Court of Appeal sexual assault decisions. It was an opportunity to discuss the significance of starting point sentences -- essentially appellate court mandated starting points to be followed by lower court judges when issuing sentences for specific sub-categories of offences. The decision also purports to provide a clear-eyed assessment of the problems with sentencing in Canada since the passage of Bill C-41 in 1996 and a way out of the morass of unprincipled sentencing decisions by lower judges that have eroded Canadians' faith in the justice system itself. However, there is something missing in the decision. The force of the reasoning advanced in Arcand is strongly diminished by the Court of Appeal's failure to advert to the Supreme Court of Canada's decision in R. v. Gladue and to the realities of Aboriginal overrepresentation in Canadian and, more specifically, Alberta corrections facilities. Recognition of Gladue should lead to a reconsideration of the conclusions in Arcand on the issues of proportionality, Aboriginal concepts of sentencing, circumstances of the Aboriginal offender, general deterrence, and the way sentences reflect harm to victims. [ABSTRACT FROM AUTHOR]

When the Supreme Court of Canada delivers its reasons for judgment, the normal expectation (the rare "By the Court" decision aside) is that the judgment of the Court-unanimous or majority or even plurality-will be designated as having been delivered by one specific judge. ("The reasons of A, B, C and D were delivered by B. ") But in recent decades, the practice has developed for two or more judges to share this formal designation; co-authorships currently account for one judgment (and, for that matter, one set of minority reasons) in every ten. This article explores this practice, unusual among comparable national high courts: when it started, which judges and which combinations of judges have been the most frequent participants, and what sorts of cases (type of law, size of panel, length of reasons) have tended to be involved; and it concludes by considering why this matters, and what it tells us about the evolving Court. [ABSTRACT FROM AUTHOR]

The article presents a commentary on the Fullowka v. Pinkerton's of Canada Ltd. case in the Canadian Supreme Court which addressed the issue of duty and standard of care, as well as factual causation and the vicarious liability of unions. A description of facts underlying the case is provided, along with the material-contribution test for factual causation in negligence. Information on appellant level decisions on the case is also given. It notes the importance of the court's reasons on factual causation in Fullowka for this part of negligence law.

This article discusses potential legal arguments that can be made for a lottery player in a seemingly hopeless situation: buying a winning lottery ticket immediately before the deadline, only to find out that the ticket was mistakenly dated for the next week's draw. Although the lottery rules and regulations and the courts' interpretation thereof are strongly slanted against lottery players, the authors nevertheless argue that a consistent and coherent application of traditional contract law principles could favour the claimant. They note that Canadian courts have rarely been consistent in their application of contract law to lottery situations, with courts sometimes characterizing lottery advertisements as both an offer and an invitation to treat. Even so, whether the lottery corporation is construed as the offeror or the offeree, the authors contend that a diligent analysis of the formation of the underlying contract could entitle the claimant to the prize. The article concludes that the regulatory framework governing lotteries does not necessarily preclude the acceptance of contract law arguments in favour of the claimant. Rather, it is the courts' tendency to analyze the contractual elements of the relationship between the player and the lottery corporation in a haphazard manner that has been the source of frustration for many lottery players across Canada. [ABSTRACT FROM AUTHOR]

This article examines the Supreme Court of Canada's cost-benefit analysis of freedom of conscience and religion guaranteed by s. 2(a) of the Canadian Charter of Rights and Freedoms in Alberta v. Hutterian Brethren of Wilson Colony. The article finds that while the Supreme Court's reasoning was ultimately flawed, its use of cost-benefit analysis may be a positive development in the freedom of religion framework. The article also looks at the Court's treatment of the freedom of conscience guarantee in relation to freedom of religion. The article suggests that this treatment may foreshadow a more uniform approach to the broader freedom of conscience and religion than was provided for in previous decisions. [ABSTRACT FROM AUTHOR]

The article presents a commentary on the R. v. Conway case in the Canadian Supreme Court which raised the issue of the role of administrative tribunals in deciding Charter of Rights and Freedoms claims. According to the author, the Conway case can be considered as a restatement and consolidation of the law. A description of facts underlying the case is provided, as well as the decisions of both the Ontario Review Board and the Court of Appeals. He notes the implication of the case for the remedial jurisdiction of administrative tribunals.

This article identifies recent regulatory and legislative developments of interest to oil and gas lawyers. The authors survey a variety of subject areas, examining decisions of key regulatory agencies such as the National Energy Board, the Ontario Energy Board, the Alberta Energy Resources Conservation Board, the Alberta Surface Rights Board, and the Alberta Utilities Commission, as well as related court decisions. In addition, the authors review a variety of key policy and legislative changes from the federal and provincial levels. [ABSTRACT FROM AUTHOR]

This article discusses the decision of the Supreme Court of Canada in a case about how courts should review decisions of administrative tribunals. It looks at trends in the identification of the standard of review, including the reliance of the Alberta Court of Appeal on the pragmatic and functional analysis. It also analyzes the application of the reasonableness standard in the case. In addition, the explores a clear methodology for how deference should be done and the ability of courts to do deference.

This article discusses the decision of the Supreme Court of Canada in a case about privacy. The defendant claimed a reasonable expectation of privacy in his garbage when the authorities filed charges against him. Police officers evidence of drug production in the content of his garbage. They found an ecstasy laboratory inside the plaintiff's residence. The court rejected the defendant's claim.

This article provides a brief review of recent Canadian judicial decisions of interest to oil and gas lawyers. The authors survey recent Canadian cases in the following areas of law: aboriginal, administrative, conflict of laws, confidentiality, contracts, employment, environmental, freehold leases, unit agreements, injunctions, rights of first refusal, surface rights, taxation, and securities. [ABSTRACT FROM AUTHOR]

Most of the empirical work on the decision making of justices on the Supreme Court of Canada has taken as its exclusive focus the divided decisions of the Court. In contrast to this extensive body of research on divided decision, the much more limited knowledge of unanimous decisions is troubling because such decisions constitute nearly three-quarters of all of the formal decisions of the Court. The analysis reported below provides a first step towards understanding the neglected nature of unanimous decisions. This investigation of the nature and causes of unanimity in the Supreme Court of Canada explores two competing explanations: one drawn from the most widely accepted general explanation of judicial voting (that is, the attitudinal model) and the other from the perspectives of the justices themselves. To determine that perspective, the author interviewed ten of the current or recent justices on the Court. After describing these two alternative accounts of unanimity, empirical tests are conducted of the implications of each view. We find substantially more support for the perspectives of the justices than for the perspective derived from the attitudinal model on unanimity. [ABSTRACT FROM AUTHOR]

The article discusses the enforcement of non-money judgments in Canadian Courts. Non-money ruling implications provides an equitable remedy, like specific performances and injunctions wherein judgment creditors must establish a fresh action and advances evidence for relief in foreign court judgments. It could be imposed for two reasons, including the required action for the defendant to presents a sum of money and assess the ruling scope and decide whether the decision is appropriate.

The article gives a succinct account of the applicable status quo in Canada with respect to recognition and enforcement of foreign judgments. It also discusses the likely impact of the Hague Convention on Choice of Court Agreements thereon, assuming the convention does come into force and Canada follows through in ratifying it. Moreover, this article focuses on the Uniform Law Conference of Canada's Uniform Enforcement of Foreign Judgments Act.

Examines the legal issues of state immunity, the revenue rule and the enforcement of foreign judgments considered by Canadian courts. Interpretation of the concept of state immunity in the decision of the Court of Appeal of Ontario in Bouzari v. Iran; Impact of the revenue rule in United States of America v. Ivey on other court rules denying relief to claimants and judgment creditors; Enforcement of foreign judgments and the decision of the Supreme Court of Canada in the Beals v. Saldanha case.

The article investigates the impact of legal mobilization and judicial decisions on official minority-language education (OMLE) policy in the Canadian provinces outside Quebec, using the “factor-oriented” and “dispute-centered” theories of judicial impact developed by U.S. scholars. The Canadian Supreme Court's decision in Mahé v. Alberta (1990), which broadly interpreted Section 23 of the Charter of Rights to include management and control of OMLE programs and schools, along with federal funding to the provinces to implement OMLE policy, are important to explaining OMLE policy change as predicted by the factor-oriented approach. The dispute-centered approach, on the other hand, helps us understand how the Charter of Rights and judicial decisions shaped the goals and discourse of Francophone groups in the policy process and, more instrumentally, provided opportunity structures that Francophone groups exploited effectively. The article concludes that both approaches to explaining judicial impact could be accommodated within an institutional model of judicial impact that construes institutions as state actors, as sets of rules, and as frameworks of meaning and interpretation. Such an approach would allow for the development of a more comparative model of judicial impact. [ABSTRACT FROM AUTHOR]

The article focuses on the dignitary interest as a distinct head of damages. It analyzes recent decisions of the Supreme Court of Canada that have commented on the availability of aggravated damages. It informs that these decisions illustrate a degree of incoherence over the function of aggravated damages and how they should be quantified. It identifies how the protection of dignity lies at the root of awards for aggravated damages. It conceptualizes what is encompassed within the dignitary interest.

Assesses the attitudinal dimension that dominates judicial decision- making in Canadian context. Examination of the voting behavior of Canadian Supreme Court Justices in non-unanimous post-Charter cases; Disclosure of principal dimensions underlying the voting behavior; Observation of cases scoring.

Discusses the common law scholarship about federalism from 1940 to 1970 in Canada. Allocation of powers between the federal government and the provinces; Influence of the welfare of the contemporary society on the decisions of courts.

The article examines the validity of the United States bounded rationality theory of judicial decision-making in the Canadian Supreme Court. Since the mid-1980s, scholars have contended that judicial decision making on the U.S. Supreme Court in search and seizure cases is influenced by factual scenarios as well as attitudinal variables. This research has demonstrated that U.S. justices rely on shorthand cues from the factual circumstances in the cases to help them reach their decisions. When these factual variables are subsequently coupled with attitudinal variables, these scholars have been able to accurately predict a significant proportion of search and seizure votes by justices on the U.S. Supreme Court. Given the importance of these findings, it is surprising that scholars have not tested the relevance of the factual model to other high courts in advanced democracies. The article attempts to apply the search and seizure factual model to cases decided by the Canadian Supreme Court, and assess the validity of the model in a different cultural context.

The article informs that in the past year two very important changes have been made in the Canadian constitution. The first of these modifications took the form of an amendment by the Imperial Parliament of the British North America Act of 1867, it granted the Dominion Parliament power to amend certain parts of the constitution. The second change, and the one with which this article is concerned, was accomplished by act of the Canadian Parliament. The Judicial Committee of the Privy Council, which until recently served as the highest court of appeals for Canada and which still performs that function for much of the British Empire, has never, strictly speaking, been a court of law.

Presents the case of Ewing v. Dominion Bank involving equitable estoppel in Canada. Details of the case; Contention of the defendants; Judgment issued on the case.