scholarly journals The Supreme Court and the Law of Obligations

1969 ◽  
pp. 149
Author(s):  
G. H. L. Fridman
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Law

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

scholarly journals The Rise and Fall of Plaintiff-Friendly Causation

2016 ◽  
Author(s):  
Vaughan Black
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Law ◽  
The Impact ◽  
Do So

Starting about a generation ago, Canadian courts altered the rules governing causation to make them more plaintiff-friendly. However, these changes came to be regarded as misguided. In the 2012 decision Clements v. Clements, the Supreme Court of Canada modified the doctrine, reversing the plaintiff-friendly trend that had defined the law of causation for decades. This article will explore how Clements effectively curtailed the test of causation. It will do so in part by examining the impact it has had on the lower courts in subsequent years.

scholarly journals The Odhavji Decision: Old Ghosts and New Confusion in Canadian Courts

1969 ◽  
pp. 1061
Author(s):  
Michael Bodner
Keyword(s):  
Supreme Court ◽  
Tort Law ◽  
Supreme Court Of Canada ◽  
Public Office ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Law ◽  
To Come

The tort of misfeasance in public office was recently examined by the Supreme Court of Canada in Odhavj Estate v. Woodhouse. While the case provided a statement on the law in this area, it also left many questions unanswered. This article lays out the factual background of the case, the elements of the tort as laid down by the Court and the tort's relationship with other aspects of Canadian tort law. Further, the author critically examines the ambiguities and additional problems that have arisen in the wake of the decision and how the lower courts have been dealing with the tort in subsequent cases. The author ultimately concludes that it is very likely that the Supreme Court of Canada will need to revisit this area of tort law in the years to come.

scholarly journals After Labaye: The Harm Test of Obscenity, the New Judicial Vacuum, and the Relevance of Familiar Voices

2009 ◽  
Vol 46 (3) ◽  
pp. 741 ◽  
Author(s):  
Richard Jochelson
Keyword(s):  
Supreme Court ◽  
Freedom Of Expression ◽  
Tolerance Test ◽  
Supreme Court Of Canada ◽  
Obscenity Law ◽  
The Supreme Court ◽  
Tolerance Approach ◽  
Lower Courts ◽  
The Subject ◽  
Community Standards

In R. v. Labaye, the Supreme Court of Canada finally retired the community standards of tolerance test of obscenity. The test had been the subject of much academic critique, a matter that reached its zenith in the period following Little Sisters Book and Art Emporium v. Canada (Minister of Justice), in which a gay and lesbian bookshop contested the procedures and legislative regime of customs officials in detaining its imports. The engagement in the literature on the efficacy of the community standards test that followed was often heated, always interesting, and ultimately unresolved. To date, we have not seen any clarifying applications of the newly proposed harm test by the Supreme Court, nor have we seen a profound articulation in any lower courts. Subsequently, the academic discussion has slowed to a crawl. In this article, the author reviews four accounts of the community standards test that were prominent following Little Sisters, and asks if the newly proposed Labaye standard meets their concerns. The Labaye case provides much fodder for the previous critics and supporters of a community standards of tolerance approach to analyze. After a critical analysis of the new Labaye test, the author concludes that the concerns have not been muted by the retirement of the community standards test, even if the voices have been. The engaged voices heard in the aftermath of Little Sisters should not hold back and they should not abandon the work to be done in obscenity law and freedom of expression discourse generally.

scholarly journals A Choice among Values: Theoretical and Historical Perspectives on the Defence of Necessity

1969 ◽  
pp. 848 ◽  
Author(s):  
Benjamin L. Berger
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Historical Perspectives ◽  
Theoretical Approaches ◽  
A Value ◽  
Canadian Law ◽  
The Supreme Court ◽  
History Of ◽  
The Law ◽  
The Way

The author explores various theoretical approaches to the defence of necessity, rejecting both excusatory conceptions of the defence and those based on the notion of moral involuntariness. Rather, the author argues that necessity is properly understood as a justificatory defence based on a lack of moral blameworthiness. After extensively surveying the history of the defence in Canadian law, the author critiques the way in which the Supreme Court of Canada has restricted the defence. He contrasts the current Canadian approach with the treatment of the defence in other jurisdictions and concludes that Canadian law would be served best by a robust defence of necessity, which would acknowledge that, in some circumstances, pursuit of a value of greater worth than the value of adherence to the law can be justified.

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 Private Prosecutions in Mauritius: Clarifying Locus Standi and Making the Director of Public Prosecutions more Accountable

2017 ◽  
Vol 10 (1) ◽  
pp. 1-34
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
African Countries ◽  
Locus Standi ◽  
Statutory Requirement ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Law ◽  
The Right

Case law shows that private prosecutions have been part of Mauritian law at least since 1873. In Mauritius there are two types of private prosecutions: private prosecutions by individuals; and private prosecutions by statutory bodies. Neither the Mauritian constitution nor legislation provides for the right to institute a private prosecution. Because of the fact that Mauritian legislation is not detailed on the issue of locus standi to institute private prosecutions and does not address the issue of whether or not the Director of Public Prosecutions has to give reasons when he takes over and discontinues a private prosecution, the Supreme Court has had to address these issues. The Mauritian Supreme Court has held, inter alia, that a private prosecution may only be instituted by an aggrieved party (even in lower courts where this is not a statutory requirement) and that the Director of Public Prosecutions may take over and discontinue a private prosecution without giving reasons for his decision. However, the Supreme Court does not define “an aggrieved party.” In this article the author takes issue with the Court’s findings in these cases and, relying on legislation from other African countries, recommends how the law could be amended to strengthen the private prosecutor’s position.

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 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 Commentary on Papers Delivered on the Supreme Court of Canada and the Law of Obligations

1969 ◽  
pp. 160
Author(s):  
D. C. McDonald
Keyword(s):  
Supreme Court ◽  
Civil Code ◽  
Supreme Court Of Canada ◽  
Privy Council ◽  
Appellate Courts ◽  
Trial Judge ◽  
The Supreme Court ◽  
The Law ◽  
The Cost

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

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