scholarly journals Consultation with Aboriginal Peoples: Impacts on the Petroleum Industry

2020 ◽  
Author(s):  
Tony Fogarassy ◽  
KayLynn Litton
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Petroleum Industry ◽  
The Other ◽  
Aboriginal Peoples ◽  
Supreme Court Of Canada ◽  
Company Limited ◽  
The Supreme Court ◽  
The One ◽  
Court Of Appeal

The duties of consultation and accommodation with Aboriginal peoples affected by resource development were, until 2002, primarily the responsibility of the Crown. The British Columbia Court of Appeal, in two related decisions involving the Haida Nation on the one hand and the Crown and Weyerhaeuser Company Limited on the other, has placed these duties squarely on to the shoulders of industry. Where the Crown fails to discharge its duties of consultation and accommodation, resource tenures such as permits, licenses or leases may be invalid and activity conducted pursuant to the tenures may result in damages awarded against industry in favour of affected Aboriginal peoples. Appeals from both decisions will be heard by the Supreme Court of Canada. In the meantime, the law on industry’s duty to consult and to accommodate Aboriginal peoples continues to lack certainty.

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 Compensation and the Scope of Equity's Remedial and Restitutionary Generosity

1969 ◽  
Vol 37 (1) ◽  
pp. 114
Author(s):  
Paul M. Perell
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Fiduciary Duty ◽  
Supreme Court Of Canada ◽  
Civil Case ◽  
The Supreme Court ◽  
Court Of Appeal

Canson Enterprises Ltd. v. Boughton is a case about equity’s restitutionary remedies, including compensation for breach of fiduciary duty and compensation under the doctrines of knowing assistance and knowing receipt. It was an unusual civil case because it had two distinct phases that yielded two trial level judgments, two judgments of the British Columbia Court of Appeal, and an important judgment form the Supreme Court of Canada. The Canson case was extraordinary because there were significant changes from phase one to phase two in the factual foundation of the case, and these changes provided a novel opportunity to study the nature of equitable remedies and to develop instructive comparisons and contrasts. This article uses the Canson case as a vehicle to explore equitable compensation and the scope of equity’s remedial and restitutionary generosity.

scholarly journals Corporate Tax Planning: GAAR: An Economic Test?—The Courts Divide

2020 ◽  
Vol 68 (1) ◽  
pp. 351-390
Author(s):  
Brian R. Carr ◽  
Brittany Finn ◽  
Ryan Wolfe
Keyword(s):  
Supreme Court ◽  
Federal Court ◽  
Tax Planning ◽  
Supreme Court Of Canada ◽  
Corporate Tax ◽  
Inherent Difficulty ◽  
The Supreme Court ◽  
The One ◽  
Compare And Contrast ◽  
Court Of Appeal

The authors of this article review the history and development of the general anti-avoidance rule (GAAR) in section 245 of the Income Tax Act (Canada), for the purpose of assisting in the analysis of recent decisions of the federal and provincial courts of appeal. They discuss the inherent difficulty in construing section 245 and outline various tests that the courts could have employed to interpret its provisions. The authors then review three of the four decisions in which the Supreme Court of Canada interpreted GAAR—<i>Canada Trustco</i>, <i>Mathew</i>, and <i>Copthorne</i>. With that background, the authors contrast the different approaches to the provincial general anti-avoidance rules taken, on the one hand, by the Alberta Court of Appeal in <i>Husky Energy</i> and <i>Canada Safeway</i>, the Ontario Court of Appeal in <i>Inter-Leasing</i>, and the BC Court of Appeal in <i>Veracity</i>, and, on the other hand, by the Quebec Court of Appeal in <i>OGT</i> <i>Holdings</i> and <i>Iberville</i>. They then compare and contrast those approaches with the pronouncements of the Supreme Court of Canada on how GAAR should be interpreted. The authors also discuss the approach taken by the Federal Court of Appeal in four recent GAAR decisions—<i>Univar</i>, <i>Oxford Properties</i>, <i>594710 British Columbia Ltd.</i>, and <i>Birchcliff</i>. They compare and contrast that approach with the approaches of the provincial courts, and consider whether the Federal Court of Appeal's approach is consistent with the Supreme Court of Canada's pronouncements on GAAR. Finally, the authors offer some advice for tax planners based on the recent GAAR decisions of the various courts of appeal.

scholarly journals Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada

2013 ◽  
Vol 50 (3) ◽  
pp. 697
Author(s):  
Peter Bowal
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
The Other ◽  
Supreme Court Of Canada ◽  
Judicial Decision ◽  
General Contractor ◽  
General Insurance ◽  
Other Hand ◽  
The Supreme Court

The unanimous judicial decision of the Supreme Court of Canada in Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada resolves divergent appellate judicial holdings, in British Columbia on one hand and Ontario and Saskatchewan on the other hand, on the issue of an insurer’s duty to defend its insured general contractor in the ensuing litigation under commercial general liability (CGL) policies in cases of defective construction workmanship.

scholarly journals Equity, Notice and Fraud in the Torrens System

1969 ◽  
pp. 106
Author(s):  
G. J. Davies
Keyword(s):  
British Columbia ◽  
New Zealand ◽  
Supreme Court ◽  
Common Law ◽  
The Other ◽  
Supreme Court Of Canada ◽  
Land System ◽  
Land Transfer ◽  
The Supreme Court ◽  
Title Registration

The Torrens land system has been adopted in many jurisdictions, including Australia, Canada and New Zealand, as substitute for the old common law and equity system of land transfer. The various Torrens Acts of these juris dictions contain sections purporting to eliminate the equitable doctrine of notice. The author suggests that although these sections are virtually identi cal their application has varied. The courts of Australia, the Supreme Court of Canada and the courts of Saskatchewan have applied the sections literally to allow registration of transfer to defeat an unregistered interest even though at the time of contracting to purchase the transferee knew of the un registered interest and that his registration would defeat or prejudice it. On the other hand, the courts of New Zealand, British Columbia, Manitoba and Alberta have viewed notice, at least when accompanied by an intention to defeat prior unregistered interest, as sufficient in itself in some cases to constitute fraud upon that interest. The author contends that the sections were intended to keep fraud and notice distinct and that the doctrine of notice should be eliminated in order to achieve security of title. Registration under the Torrens system was intended to provide ultimate protection against other interests. Where it is not possible to effect registration immediately upon the acquisition of an interest, as is generally the case, the caveat pro visions of the various Acts are intended to be and should be utilized to pro tect that interest, thus eliminating the need for the protection provided pre vious to the Acts by the doctrine of notice.

scholarly journals COMPROMISE, UNDUE INFLUENCE AND ECONOMIC DURESS Gerolomou Constructions (Pty) Ltd v Van Wyk 2011 (4) SA 500 (GNP)

Obiter ◽  
2021 ◽  
Vol 33 (3) ◽  
Author(s):  
CJ Pretorius ◽  
R Ismail
Keyword(s):  
Supreme Court ◽  
Case Note ◽  
The Other ◽  
Undue Influence ◽  
Other Hand ◽  
The Supreme Court ◽  
The Law ◽  
The One ◽  
Court Of Appeal ◽  
Sound Judgment

The matter of Gerolomou Constructions (Pty) Ltd v Van Wyk (2011 (4) SA 500 (GNP)) alludes to two rather problematic aspects of the law of contract: on the one hand it demonstrates that practically speaking the question of what constitutes an enforceable agreement of compromise is still no easy matter, and despite the sound judgment delivered recently by the Supreme Court of Appeal in Be Bop A Lula Manufacturing & Printing CC v Kingtex Marketing (Pty) Ltd (2008 (3) SA 327 (SCA)), it seems that the judiciary’s interpretation as to when an offer of compromise exists remains difficult to predict. On the other hand the Gerolomou decision deals with improperly obtained consensus by way of undue influence, whereas the facts actually fit more comfortably into the niche of so-called economic duress, a form of procedural impropriety that has yet to be recognized as an independent ground for setting aside a contract in our law. This case note examines these issues against the backdrop of the manner in which the case was pleaded.

scholarly journals L'arbitre de griefs, instrument efficace de contrôle des abus de pouvoirs de l'employeur ?

2005 ◽  
Vol 19 (1) ◽  
pp. 105-115
Author(s):  
Jean-Louis Dubé
Keyword(s):  
Supreme Court ◽  
The Other ◽  
Collective Agreement ◽  
Supreme Court Of Canada ◽  
Collective Agreements ◽  
Grievance Arbitration ◽  
Chief Justice ◽  
Arbitration Process ◽  
The Supreme Court ◽  
The One

In theory, recourse to the grievance arbitration would appear to be an efficient means of controlling the abuse of powers (i.e. violations of the collective agreement) by the employer. Indeed, experience has borne out the truth of this affirmation. Mainly due to the management rights principle however, there still remain several important lacunae in this regard. On the one hand, by invoking the so-called management rights principle as a favorite means for circumscribing the arbitrator's jurisdiction, the Supreme Court of Canada has greatly diminished the efficacy of the arbitration process. This has occured primarily through the quashing of arbitration decisions either on the basis of error of law or else by limiting the arbitrator's discretion in disciplinary cases. On the other hand, it would be just as harmful to the efficiency of the arbitration process if arbitrators themselves were to abuse the management rights principle in interpreting and applying collective agreements. In general, arbitrators have proved to be highly conscious of this problem. By the same token, arbitrators have been faced with the problem of whether or not to discipline acts of insubordination even though employees may have been provoked by an abuse of authority on the part of the employer. All in all, arbitrators, by their attitude, appear to manifest a desire of ensuring the efficient functioning of the arbitration process, without acting to the detriment of management rights. In this regard, the Supreme Court of Canada, with the notable exception of Chief Justice Laskin, would seem to be fighting a rear-guard action by continually emphasizing management rights.

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

Regspraak: Novasie en delegasie van skuld – hoe raak dit die versekering van die tersake skuld?

2021 ◽  
Vol 2021 (2) ◽  
pp. 356-378
Author(s):  
JC Sonnekus ◽  
EC Schlemmer
Keyword(s):  
Supreme Court ◽  
The Other ◽  
Secured Debt ◽  
Personal Rights ◽  
The Supreme Court ◽  
Preferential Position ◽  
The Creation ◽  
D 20 ◽  
Court Of Appeal ◽  
Secured Creditors

Personal rights may be transferred by means of cession, and, in such an instance, the cedent (creditor) does not need the debtor’s permission, but once the debtor has been informed, the debt is redeemed only if he performs against the cessionary. If however, someone owes a debt, he (the debtor) can free himself of the obligation only if he redeems the debt, if he is released, or through the running of prescription. But sometimes it might be necessary that a restructuring of someone’s debts takes place or the debtor may want to be replaced with someone else who is willing to take over his obligation. This can be done only with the cooperation and agreement of the creditor. In such a case the debtor delegates his obligation to another person, who then becomes the new debtor of a new debt – the creditor relinquishes his right against the old debtor and accepts the new debtor and the new debt. The old debt no longer exists. It is also possible to rearrange the debt and create a new obligation which extinguishes the old debt – a novation takes place. This contribution starts with a discussion of these general principles and particularly the role that they (should) play when one is dealing with a secured debt which the debtor wants to delegate or when novation comes into play. This leads into a discussion of Wilke NO v Griekwaland Wes Korporatief Ltd (1327/2019) 2020 ZASCA 182 (23 Dec 2020) and the judgments in the earlier courts in which the supreme court of appeal and the other courts did not consider the implications of delegation and novation on an underlying debt when that debt was secured. Delegation and novation extinguish the underlying debt and any security right fortifying that debt is thereby also extinguished because of the principle of accessority. If the creditor requires the new debt to be secured, a new security right needs to be established by meeting all the requirements for the establishment of such security whether it is a right of suretyship or a real security right. A creditor must carefully consider agreeing to a delegation or novation of a secured debt since the implication is that he loses his secured and preferential position, and, even with the creation of a new security right, he loses the ranking he initially held in the line of secured creditors when a right of mortgage, for example, is at stake – qui prior est tempore potior est iure (D 20 4 11pr).

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