scholarly journals Will That Be Performance - Or Cash: Semelhago v. Paramadevan and the Notion of Equivalence

1969 ◽  
pp. 589 ◽  
Author(s):  
Donald H. Clark
Keyword(s):  
Real Estate ◽  
Supreme Court ◽  
Specific Property ◽  
Supreme Court Of Canada ◽  
Breach Of Contract ◽  
The Supreme Court ◽  
Specific Performance ◽  
The Right ◽  
Judicial Remedies ◽  
Estate Law

This article discusses the manner in which the Supreme Court of Canada assessed damages in Semelhago v. Paramadevan, a dispute arising from a breach of contract for sale of land. The author analyzes the decision as it affects established real estate law and principles governing judicial remedies available in contracts. Before Semelhago, specific performance was normally granted as all land was presumed to have no substitute and therefore, damages were considered to be inadequate. As a result of the decision in Semelhago, the plaintiff, whether vendor or purchaser, is now required to adduce evidence that the specific property in question is unique. The plaintiff retains the right to request specific examine performance or damages and can make her election any time up until the date of the trial. The author discusses when the value of the property should be assessed and the deductions that should be included in the final judgment. He also outlines the confusion and uncertainty this judgment has created and how the plaintiff is overcompensated by using thisformula. A solution to this dilemma is presented.

The Right to Assisted Dying: Constitutional Jurisprudence and Its Impact in Canada, Germany and Austria

ICL Journal ◽  
2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Kerstin Braun
Keyword(s):  
Supreme Court ◽  
Supreme Court Decision ◽  
Constitutional Court ◽  
Supreme Court Of Canada ◽  
Assisted Dying ◽  
Constitutional Courts ◽  
The Supreme Court ◽  
Federal Constitutional ◽  
The Right ◽  
Constitutional Jurisprudence

Abstract Many states are grappling with the regulation of assistance in suicide and ending the life of another upon their request. Initially punishable in most countries, a growing number of jurisdictions have now introduced permissive frameworks decriminalising, to varying degrees, rendering assistance in dying. Other countries, however, have proceeded with the criminal prohibition and several courts have upheld the lawfulness of the respective criminal laws during human rights and constitutional challenges. Yet, the Supreme Court of Canada in 2015, the German Federal Constitutional Court in February 2020 and the Austrian Constitutional Court in December 2020 have respectively declared unconstitutional and void national criminal laws prohibiting rendering assistance in dying. This article first outlines the criminal law framework relating to assisted dying in Canada, Germany and Austria. It subsequently analyses the judgments before pondering their impact on the legal landscape in the three countries. The article concludes that while the Canadian Supreme Court decision appears to have had a significant impact on the introduction of subsequent legislation in Canada, the effects of the Constitutional Courts’ judgments seem much more subdued in Germany and are yet to unfold in Austria.

scholarly journals Feu la D.C.D. L'arrêt Miller et la peine de mort

2005 ◽  
Vol 18 (2-3) ◽  
pp. 567-576
Author(s):  
Henri Brun
Keyword(s):  
Supreme Court ◽  
Death Penalty ◽  
Supreme Court Of Canada ◽  
Bill Of Rights ◽  
Right To Life ◽  
The Supreme Court ◽  
The Subject ◽  
The Law ◽  
The Right ◽  
First Time

The Miller case, decided by the Supreme Court of Canada on October 5, 1976, puts the death penalty under the light of the Canadian Bill of Rights which formulates the right to life and the right to protection against cruel and unusual treatment or punishment. The following comment on the case relates to the interpretation given specific clauses of the Bill of Rights by the Court on that occasion. But it stresses especially the law that flows from the case about the compelling weight of the Bill of Rights over acts of Parliament enacted after the Bill came into force. In Miller, the Supreme Court expressed itself on the subject for the first time.

scholarly journals Was the Supreme Court right to change the law on the right to a speedy trial?

2017 ◽  
Vol 26 (3) ◽  
pp. 1
Author(s):  
Leonid Sirota
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Reasonable Time ◽  
Canadian Charter ◽  
The Supreme Court ◽  
The Law ◽  
The Right ◽  
Speedy Trial

In R v Jordan, the Supreme Court of Canada held, by a 5-4 majority and over the vigorous disagreement of the concurrence, that criminal prosecutions in which a trial does not conclude by a set deadline will be presumed to breach the right to be tried within a reasonable time, protected by section 11(b) of the Canadian Charter of Rights and Freedoms. The acceptable length of proceedings set out in the decision is of 18 months from the day charges are laid for cases that proceed without a preliminary inquiry, and 30 months otherwise. The Crown can still show that exceptional circumstances outside of its control have arisen and can explain — and excuse — a case taking longer than that, but unless it does so, a stay of proceedings will be the automatic consequence of such delay. Meanwhile, an accused will be able to show that delay below these ceilings is unconstitutionally unreasonable, but only by demonstrating not only that the delay is “markedly” greater than reasonable, but also that he or she diligently sought to have the case heard sooner.

scholarly journals Recent Developments in the Law of Equitable Remedies: What Canada Can Do For You

2002 ◽  
Vol 33 (1) ◽  
pp. 51 ◽  
Author(s):  
Jeff Berryman
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Specific Performance ◽  
Recent Developments ◽  
The Law

The Supreme Court of Canada has clearly enunciated a distinct equity jurisprudence for Canada. This paper discusses certain aspects of the most recent developments particularly in the area of equitable remedies. The recent "explosion" in the use of Anton Piller decisions is charted, and where appropriate, analogous Commonwealth decisions are discussed. The use of Injunctive remedies is canvassed, as well as specific performance.

scholarly journals Ce qui est abusif au sens de l'article 8 de la Charte canadienne lors de la recherche de preuves

2005 ◽  
Vol 27 (4) ◽  
pp. 965-982
Author(s):  
Bernard Auger
Keyword(s):  
Supreme Court ◽  
Search And Seizure ◽  
Supreme Court Of Canada ◽  
Section 8 ◽  
The Supreme Court ◽  
Liberal Approach ◽  
Compliance With The Law ◽  
The Individual ◽  
The Right ◽  
Minimum Criteria

In determining whether legislation permitting search and seizure properly meets the requirements of section 8 of the Canadian Charter of Rights and Freedoms, the courts have been obliged to balance the right of the individual to be secure against unreasonable search and seizure with the right of the state to ensure compliance with the law. In Hunter v. Southam, the Supreme Court of Canada established the minimum criteria of reasonable search and seizure for the purposes of section 8. The liberal approach adopted by the Supreme Court raises an important question : Should the same criteria apply to administrative statutes empowering bodies to conduct inquiries and inspections ? The author compares section 8 of the Charter with the American 4th Amendment, examining the requirement for search warrants in the light of Canadian cases. He then examines and discusses the case law concerning the applicability of section 8 to statutory provisions relating to the production of documents and the standard of reasonableness that should apply to these situations.

The Compensation of Wrongful Pregnancy in Québec Civil Law

1999 ◽  
Vol 14 (01) ◽  
pp. 61-82
Author(s):  
Louise Langevin
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Analytical Framework ◽  
Child Rearing ◽  
Supreme Court Of Canada ◽  
Reproductive Autonomy ◽  
Canadian Charter ◽  
The Supreme Court ◽  
The Right ◽  
The Cost

AbstractThe Supreme Court of Canada has recognized the right to reproductive autonomy for women based on the right to liberty protected by section 7 of the Canadian Charter of Rights and Freedoms. Thus, it is a woman's choice whether to have children. It follows, therefore, that in the case of a violation of her reproductive autonomy, a woman has a right to compensation. It is in light of these principles that I analyze the wrongful pregnancy cases in Québec civil law. From a feminist analytical framework, I posit that Québec courts have effectively denied women the right to reproductive autonomy by awarding compensation for the cost of child-rearing only in cases where a difficult economic situation is evidenced by the parents. In so doing, the courts have not only refused to fully compensate women for the injuries caused to them, but they continue to reproduce the dominant pronatalist ideology in reproductive matters. This judicial reaction to cases of wrongful pregnancy is another example of the gendered dimension of law.

scholarly journals Equitable Compensation for Breach by Fact-Based Fiduciaries: Tentative Thoughts on Clarifying Remedial Goals

1969 ◽  
Vol 37 (1) ◽  
pp. 95
Author(s):  
Jeff Berryman
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Punitive Damages ◽  
Supreme Court Of Canada ◽  
Breach Of Contract ◽  
Distinctive Features ◽  
The Supreme Court ◽  
The Common

The Supreme Court of Canada has purported to distinguish the approach to quantifying equitable compensation from that applied to the quantification of damages in common law for breach of contract or tort. In particular, the rules associated with causation and remoteness and the application of evidential presumptions has dominated this discourse. In this comment the author suggests that these distinctions are adding to conceptual muddling of the fiduciary relationship and that it would be better for the court to embrace totally the sophisticated analytical rules of the common law rather than recreate new rules in equity. Further, he argues that the distinctive features of the fiduciary relationship would be better recognized through the application of punitive damages rather than the distortion of compensation principles.

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