scholarly journals Writing on a Blank Slate: The Alberta Court of Appeal’s Early Charter Cases

2014 ◽  
Vol 52 (1) ◽  
pp. 111
Author(s):  
P. Jonathan Faulds
Keyword(s):  
Supreme Court ◽  
Significant Role ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Blank Slate ◽  
Court Of Appeal

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.

scholarly journals Alberta's Court of Next-to-Last Resort: Appeals from the Alberta Court of Appeal to the Supreme Court of Canada, 1970-1990

1969 ◽  
pp. 861
Author(s):  
Peter McCormick
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Success Rates ◽  
The Supreme Court ◽  
The Law ◽  
Statistical Survey ◽  
Court Of Appeal

This paper reports the results of a statistical survey of the success rates of appeals to the Supreme Court of Canada. Appeals from all provinces were examined, but in his analysis Professor McCormick focuses on the Alberta Court of Appeal. The variables he discusses include the geographic and political composition of the Supreme Court, the mix of cases from different areas of the law, the length of experience of Court of Appeal judges, and the presence or absence of dissenting opinions.

scholarly journals Be careful what you promise: Proprietary estoppel in Cowper-Smith v Morgan

2018 ◽  
Author(s):  
Jason Chin
Keyword(s):  
British Columbia ◽  
Property Rights ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Canadian Experience ◽  
The Supreme Court ◽  
The Law ◽  
Court Of Appeal

Proprietary estoppel provides one of equity’s most powerful remedies. Estoppel is an equitable doctrine which arises when one party acts on the reliance of the promise of another. The promise and corresponding reliance creates a quasi-contract with reliance acting as an alternative to the consideration usually required in contracts. Proprietary estoppel is distinct from other equitable estoppels in that a proprietary estoppel can act as a ‘sword’ and form the basis of a cause of action. If all of the parts of proprietary estoppel are made out, a court can modify or create property rights to satisfy the equity.With regard to the Canadian experience, the Court of Appeal for Ontario recently noted that proprietary estoppel has received “somewhat uneven treatment in Canada.” It is within this context that the Court of Appeal for British Columbia split on the proper scope for the Supreme Court of Canada. In Cowper-Smith v Morgan, the Supreme Court of Canada has both clarified the test for — and arguably expanded the scope of — proprietary estoppel in the context of promises exchanged between children over their mother’s care during her lifetime. The fact that a party lacks an interest in the disputed property at the time of the promise does not negate the obligation of fulfilling the promise. Instead, when the party responsible for the expectation has or acquires sufficient interest in the property, proprietary estoppel will attach to that interest and protect the equity. This article will discuss the law of proprietary estoppel in other jurisdictions and how the Supreme Court of Canada has infused this remedy with greater flexibility to satisfy the equity.

scholarly journals GAARs and the Nexus between Statutory Interpretation and Legislative Drafting: Lessons for the U.S. from Canada

2016 ◽  
Vol 7 (1) ◽  
Author(s):  
Reuven S. Avi-Yonah ◽  
Amir Pichhadze
Keyword(s):  
Supreme Court ◽  
Tax Avoidance ◽  
Federal Court ◽  
Supreme Court Of Canada ◽  
Statutory Interpretation ◽  
Discretionary Power ◽  
The Supreme Court ◽  
The Us ◽  
Court Of Appeal ◽  
The U.S

Abstract Rules targeting specific known schemes are not the only tools available in the battle against tax avoidance. Legal systems also use measures that apply generally. The U.S. for example has tended to rely heavily on general doctrines. One such doctrine which is discussed in part 2 of this chapter is the “economic substance” doctrine. Yet as Xiong and Evans recently pointed out “although such judicial doctrines can be used to deal with various aspects of complicated tax abuse judges tended sometimes to limit and sometimes to enlarge the scope of jurisprudential interpretation leading to substantial uncertainty and risk.” One way to limit the discretionary power of judges and overcome the uncertainty apparent in their judgments is by formalizing the doctrines as the US has done by codifying the “economic substance” doctrine in 2010. As explained in part 2 of this chapter a limitation of the “economic substance” doctrine whether it is established judicially or codified by statute may be its focus on the taxpayer’s intentions as the basis for attacking tax avoidance. Part 3 of this chapter goes on to explain that the U.S. could overcome this limitation by adopting a statutory General Anti-Abuse Rule (“GAAR”). GAARs also impose generally applicable limits on what constitutes acceptable (reasonable) tax arrangements. But they do so based on whether the arrangements are consistent with the legislature’s intentions as they were conveyed in the tax provision which the taxpayer is relying on for achieving the tax advantage in question. As Canada’s Federal Court of Appeal (“FCA”) explained “by confining legitimate tax avoidance to schemes that are not inconsistent with the policy underlying the statutory provision invoked by the taxpayer GAAR effectively limits the scope of the principle in Commissioners of Inland Revenue v. Duke of Westminster… that ‘[e]very man is entitled if he can to order his affairs so that the tax attaching under the appropriate Acts is less than it would otherwise be’.” Based on Canada’s experience with the GAAR parts 4 and 5 identify and explain the nexus between statutory interpretation and legislative drafting and the implications of this nexus on the application of a GAAR in the U.S. should Congress choose to take this route. Part 4 identifies that while the Supreme Court of Canada (“SCC”) has recognized the need to apply a purposive interpretation of Canada’s GAAR in order to ascertain parliament’s intentions in the relevant tax provision the court has also held that it will only give effect to those intentions which were clearly conveyed by the relevant provision and will not invent a legislative intention which parliament has failed to convey. Part 5 notes that such judicial restraint has also been taken by the U.S. Supreme Court and therefore a similar approach could be expected by the U.S. courts should Congress adopt a GAAR. Therefore it would be up to Congress as it is similarly up to Canada’s Parliament to carefully and clearly draft its legislative intentions otherwise the effectiveness of a GAAR would be undermined.

scholarly journals The Supreme Court of Canada and the Alberta Court of Appeal: Do the Top Courts Have a Fundamental Philosophical Difference of Opinion on Public Law Issues

1969 ◽  
pp. 703
Author(s):  
Barbara Billingsley ◽  
Bruce P. Elman
Keyword(s):  
Supreme Court ◽  
Public Law ◽  
Supreme Court Of Canada ◽  
Divergence Of Opinion ◽  
The Supreme Court ◽  
Precise Analysis ◽  
Difference Of Opinion ◽  
Court Of Appeal

Prompted by the marked clash between the Supreme Court of Canada and the Alberta Court of Appeal in R. v. Ewanchuk, the authors ask whether this conflict is indicative of a fundamental divergence of opinion between the two courts. To answer this question, the authors embark on a review of all 132 public law cases appealed from the Alberta Court of Appeal to the Supreme Court of Canada between 1982 and December 2000. The authors examine these cases to determine the extent of the Supreme Court’s overt criticism of the reasoning employed by the Alberta Court of Appeal. While acknowledging the obvious difficulties of subjecting this data to precise analysis, the authors find that the data reveals some predictable patterns regarding the manner in which the two courts react to certain public law questions. The authors conclude that there are some fundamental philosophical differences between the courts, a finding which indicates that the class between the courts in the Ewanchuk case was not a completely unique or unpredictable circumstance.

scholarly journals A Failed Experiment - Investigative Detention: Ten Years Later

1969 ◽  
pp. 335 ◽  
Author(s):  
James Stribopoulos
Keyword(s):  
Supreme Court ◽  
Critical Evaluation ◽  
Supreme Court Of Canada ◽  
Police Power ◽  
Dialogue Model ◽  
Police Powers ◽  
Alternative Approach ◽  
The Supreme Court ◽  
Police Detention ◽  
Court Of Appeal

Ten years ago, the Ontario Court of Appeal introduced the investigative detention power to Canada with its decision in R. v. Simpson. After providing some necessary background about the realities of police detention practices, the author offers a critical evaluation of Simpson and the ancillary powers doctrine that it relied upon to create this new police power. The author then proceeds to consider how well the investigative detention experiment has fared over the last decade, examining whether it has lived up to the goal that provided its inspiration, namely, the regulation of police detention practices. The author advances two major claims. First, the investigative detention cases have done little to regulate but much to legitimize police detention practices, mostly serving to blur the line between the detentions they endorse and conventional arrests. Second, the investigative detention experiment holds larger lessons about the dangers inherent when courts, as opposed to legislatures, create police powers. Given these dangers, the paper contends that the ancillary powers doctrine should be rejected as a device for creating complex police powers, like investigative detention. Instead, the author draws upon the dialogue model, already embraced by the Supreme Court of Canada, to offer an alternative approach. He concludes by outlining steps the Court could take to encourage Parliament to finally enact the sort of clear, comprehensive, and prospective rules and procedures that are essential if police detention practices are to be effectively regulated in the future.

scholarly journals Inside McClung J.A.'s Closet in Vriend v. Alberta: The Indignity of Misrecognition, the Tool of Oppressive Privacy, and an Ideology of Equality

1969 ◽  
pp. 648
Author(s):  
James R. Olchowy
Keyword(s):  
Supreme Court ◽  
Gay Rights ◽  
Supreme Court Of Canada ◽  
Classical Liberalism ◽  
Substantive Equality ◽  
The Supreme Court ◽  
Interpretive Approach ◽  
Majority Judgment ◽  
Postmodern Philosophy ◽  
Court Of Appeal

Addressing recent expressions of concern about the Supreme Court of Canada's alleged inability to articulate a principled and coherent philosophy of the Charter, the author scrutinizes Vriend v. Alberta, a controversial gay-rights case in which starkly antithetical philosophical approaches to the Charter come into focus. While differentiating theoretically between modern and postmodern paradigms of justice, and contracting McClung J.A. 's majority judgment for the Alberta Court of Appeal with the ruling of the Supreme Court of Canada in Vriend, the author argues that the Supreme Court — guided by the Charter's equality provisions — has begun to articulate a postmodern philosophy of the Charter centred on the idea of inclusive justice. This emerging philosophy of inclusive justice is premised on the notion that the law works to produce the reality in which we live. not merely to reflect it. Whereas, in Vriend, McClung J.A. 's philosophy of the Charter adheres to the assumptions of modern jurisprudence and the concepts of classical liberalism — in particular, concepts such as abstract individualism, the private/public divide, and formal equality — the Supreme Court's philosophy in Vriend is coloured by postmodern insights that cogently impugn McClung J.A. 's traditional assumptions and concepts. What the Supreme Court's position makes clear is that, by resorting to a rhetoric of misrecognition, an ideology of privacy, and an ideology of equality, McClung J.A. tellingly exposes the limitations of his Charter philosophy, which actually reinforces and perpetuates the discriminatory treatment and oppression of sexual minorities in Canadian society. Juxtaposed with McClung J.A. 's questionable interpretive approach is the Supreme Court's emphasis in Vriend on achieving substantive equality — an emphasis that the author construes as underscoring how the Supreme Court has actually gone some distance toward articulating a credible postmodern philosophy of the Charter.

scholarly journals Justice Bertha Wilson: One Woman's Difference, Kim Brooks, Ed (Vancouver: UBC Press, 2009)

2012 ◽  
Vol 49 (3) ◽  
pp. 751
Author(s):  
Madam Justice Patricia Rowbotham
Keyword(s):  
Supreme Court ◽  
Gender Equality ◽  
Critical Analysis ◽  
Role Model ◽  
Task Force ◽  
Supreme Court Of Canada ◽  
Association Task ◽  
The Supreme Court ◽  
Bar Association ◽  
Court Of Appeal

Justice Bertha Wilson: One Woman’s Difference is a collection of 16 essays which reflect upon Wilson’s contributions as jurist, speaker, chair of the Canadian Bar Association Task Force on Gender Equality in the Legal Profession, mentor, and role model to a generation of lawyers and judges. The authors are all women; fifteen of the essays are written by academics (and a student) from law faculties across Canada, and one essay is authored by a barrister. For the most part the authors write from the perspective of their own considerable expertise in a particular area of law. Their critical analysis of several of Wilson’s judgments from both the Ontario Court of Appeal and the Supreme Court of Canada caused me to reflect upon those judgments in novel ways. Some of the authors tackle the tricky issue of whether Wilson was a “feminist” judge.

scholarly journals Judicial Nullification of Statutes under the Charter of Rights and Freedoms, 1982-1988

1969 ◽  
pp. 396 ◽  
Author(s):  
F. L. Morton ◽  
G. Solomon ◽  
I. McNish ◽  
D. W. Poulton
Keyword(s):  
Statistical Analysis ◽  
Supreme Court ◽  
Policy Making ◽  
Minority Rights ◽  
Supreme Court Of Canada ◽  
Judicial Activism ◽  
Judicial Interpretation ◽  
The Supreme Court ◽  
Legislative Policy ◽  
Court Of Appeal

This study assesses the effect of the Charter of Rights on legislative policy-making. Unlike earlier studies limited to the Charter decisions of the Supreme Court of Canada, this study identifies and analyzes all reported federal and provincial Court of appeal decisions from 1982 through 1988 in which a statute was declared invalid, in whole or in part. The authors discuss which Charter rights result in the most ' 'nullifications "of statutes, and judicial activism under the Charter, using a statistical analysis to support their assertions. The study also finds that the Charter has had a greater substantive effect on provincial jurisdiction, than on federal creating a tension between provincial rights and minority rights which can be moderated or exacerbated by different modes of judicial interpretation.

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