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.

scholarly journals The Supreme Court of Canada, the House of Lords, the Judicial Committee of the Privy Council, and Administrative Law

1969 ◽  
pp. 5
Author(s):  
D. H. Clark
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Administrative Law ◽  
Supreme Court Of Canada ◽  
Privy Council ◽  
House Of Lords ◽  
Mumbo Jumbo ◽  
The Supreme Court ◽  
The Law ◽  
The Individual

The Supreme Court of Canada's contribution to the jurisprudence of administra tive law has been weak and fitful, erratic and lacking in attention to the principles of its own previous decisions. Failure to articulate points of distinction between its decisions has led to uncertainty in the law. The speaker suggested that the insufficiency of the Court's reasoning and the inadequacy of its citation might be reduced if judgments were more often delivered by more members of the Court thus increasing the individual research and writing of the Court so that its earlier fcmons would be kept in view and the case law developed more coherently. Furthermore, the Court should foUow the House of Lords in not considering itself bound by ds own decisions. The speaker regretted the Court's tendency to take mechanically conceptualise approach to substantive administrative law issues- if Canadian courts are to keep pace with those of other jurisdictions, the Supreme Court of Canada cannot continue to use outworn mumbo-jumbo as substitute for identifyltZtJ «»*"*»* societal interests that are the stuff of /hefPe?kfr aho discussed and compared the contributions of the House of Lords and of the Judicial Committee of the Privy Council. Although it has fewer members the House of Lords has more dissenters in administrative law decisions than the Supreme Court of Canada, (whereas the Privy Council until 1966 could not have dissent). While the S.C.C. has been inconsistent and weak, the Privy Council has been consistent and weak. Although there have been occasional achievements, between 1951 and 1971 the Privy Council rendered series of regressive decisions that impaired coherent development of the administrative law in England and in the Commonwealth. ReidZhh^ i*' f" H0USe °f Lof* under the influenc* of the late Lord h^'^nuJf has enjoyed as most creative °n TegreSSiVe period inPrivy relation Council to public decisions> law si™ However *• earlyhaknZd 1960's mnnt rxiicc ft ££Icrt has*eenperfo

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 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 L'étanchéité de l'A.A.N.B. est-elle menacée?

2005 ◽  
Vol 18 (2-3) ◽  
pp. 383-396
Author(s):  
Jean-Charles Bonenfant
Keyword(s):  
North America ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
German Federal Republic ◽  
Privy Council ◽  
Stare Decisis ◽  
British North America ◽  
The Supreme Court ◽  
Distribution Of Powers ◽  
Canada Limited

In his opinion in John A. MacDonald, Railquip Enterprises Ltd and Vapor Canada Limited, Chief Justice Laskin commented that in the future it might be necessary to reconsider the 1937 Labour Conventions Decision which established the « watertight compartments » doctrine applicable to the implementation of treaties concluded by Canada. According to this doctrine as it was set forth by the Privy Council, the fact that Canada can enter into treaties with other countries does not mean that the Federal Parliament of Canada can legislate contrary to the distribution of powers provided for by sections 91 and 92 of the British North America Act. In his article, Professor Bonenfant recalls the criticism which the Privy Council evoked, particularly that which appeared in the June, 1937, issue of The Canadian Bar Review. If the Supreme Court of Canada wishes to revise the decision of the Privy Council, it will not be hampered by the rule of stare decisis. But, Professor Bonenfant writes, whatever the judicial solution may be, it would probably be better to follow the example of other countries, particularly the example provided by article 32 of the Constitution of the German Federal Republic, and seek a political solution. In this domain as in others, if federalism has failed in Canada, he writes that it is perhaps because the interpretation of Canada's Constitution has been left to the intellectual virtuosity of the members of the Privy Council and of the Supreme Court.

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 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 Fraud Is Now Legal in Texas (For Some People)

2020 ◽  
Vol 8 (1) ◽  
pp. 1-62
Author(s):  
Val D. Ricks
Keyword(s):  
Supreme Court ◽  
Limited Liability ◽  
Appellate Courts ◽  
Legislative History ◽  
Freedom Of Contract ◽  
Contractual Obligation ◽  
The Supreme Court ◽  
Business Entities ◽  
The Cost ◽  
Personal Liability

Three intermediate appellate courts in Texas have held that corporate actors— directors, officers, managers, shareholders, and probably common employees and agents—are immune from personal liability for fraud that they themselves commit as long as their deceit relates to or arises from a contractual obligation of the corporation. Similar actors in limited liability companies also enjoy immunity. These courts do not require that the business entities themselves be liable for the fraud. When the entities are not liable, these new holdings leave fraud victims no remedy at all, even if a jury would find fraud. One (or maybe two) Texas appellate courts have held otherwise. The Supreme Court of Texas will probably decide the issue, and one justice has already signed on. To date, these decisions have only been noticed in print by a few practicing attorneys. No commentator has questioned them. But the decisions are wrong. These courts claim to be following a statute, but the statute does not support the courts’ analysis. Nor does the statute’s legislative history. Surprising (and probably unnoticed) results strongly suggest the legislature never intended this reading. And what rationale could justify it? Fraud is the economic equivalent of theft. Practitioner comments on the decisions suggest that the cost of litigating fraud is too high. Texas’s reputation for pro-business policies might suggest this move is just helpful de-regulation, but it is not. Policing fraud is the only way to make markets safe for freedom of contract, and litigating fraud claims is the courts’ role. These decisions should be abandoned before they become the law in all of Texas and elsewhere.

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