Alberta Law Review (ALR)
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Federalism and the Arbitration of Consumer and Employment Disputes in the United States and Canada: The Road Not Taken?
No full textIn many respects, the tale of the arbitration of consumer and employment disputes in the United States and Canada is a similar one. Both jurisdictions were traditionally hostile to arbitration, both jurisdictions had a complete change of heart in recent years, and in both jurisdictions, arbitration is widely used in the consumer and employment sphere. Moreover, in both jurisdictions questions have been asked regarding the fairness of arbitration agreements in consumer and employment contracts due to the inherent power imbalance between consumers or employees on the one hand and businesses or employers on the other. Despite these similarities, the consumer and employment arbitration landscape in each is radically different, whereas consumer and employment arbitration in the US is almost impossible for consumers and employees to avoid; in Canada, the opposite is true. This radical difference results from key differences in each jurisdiction’s understanding of federalism so that whilst Canadian provinces and courts have been able to protect consumers and employees, US states and courts have found themselves hamstrung by the Supreme Court’s interpretation of the Federal Arbitration Act and the dominance of federal law over state law. This has led to US courts pushing the envelope of the doctrine of unconscionability whilst Canadian courts have found this unnecessary due to provincial regulation. This article analyzes the different paths taken by federalism in each jurisdiction and how that in turn led to almost opposite outcomes for arbitration law north and south of the world’s longest border. Ultimately, the article concludes that in both federalism and arbitration law, Canada and the US each represent the road not taken by the other
The Lost Art of the Plea Inquiry: Learning From the Past to Prevent Wrongful Convictions in the Future
No full textA guilty plea wrongful conviction occurs when an innocent person pleads guilty to a crime that they did not commit. Canada’s main procedural protection against guilty plea wrongful convictions is an inquiry, codified in sections 606(1.1) and (1.2) of the Criminal Code, that courts must conduct before accepting a plea from the accused. This plea inquiry requires that a court be satisfied of three conditions before accepting a guilty plea from an accused: (1) that the plea is voluntary, (2) that the plea is informed, and (3) that the facts support the charge.
The goal of this article is to show that sections 606(1.1) and (1.2) offer insufficient protection against false guilty pleas and can be improved by learning from the early common law courts’ approach to plea inquiries. This article argues that when sections 606(1.1) and(1.2) were enacted in 2002, guilty plea wrongful convictions were poorly understood and, as a result, Parliament crystalized a plea inquiry that systematically fails to account for many recently recognized causes of false guilty pleas. However, this article suggests that sections 606(1.1) and (1.2) can be improvedby looking to the early common law, when courts were skeptical of guilty pleas and the risk of wrongful conviction. In particular, this article recommends three ways that sections 606(1.1) and (1.2) can be improved: (1) to conduct a full plea inquiry in every case, (2) to individualize the inquiry to the accused by considering their circumstances and motive for pleading guilty, and (3) to foster a skeptical attitude towards guilty pleas amongst the judiciary. This article further argues that these lessons can, at least in part, be implemented by challenging the constitutionality of sections606(1.1) and (1.2) under section 7 of the Charter
Recent Judicial Decisions of Interest to Energy Lawyers
Full text linkThis article summarizes recent judicial decisions of interest to energy lawyers. The authors review and comment on case law from the past year in several areas including: arbitration, bankruptcy and insolvency, class actions, competition law, contractual interpretation, cybersecurity, employment and labour, environment, Indigenous law, insurance law, securities litigation, and tax. The authors discuss the practical implications of the decisions and risk management strategies that may be of benefit to participants in the energy industry. The authors also highlight cases to watch in 2023
Recent Legislative and Regulatory Developments of Interest to Energy Lawyers
Full text linkThis article looks at several legislative and regulatory developments, primarily from April 2022 to March 2023, that may be of interest to energy lawyers, providing a high-level overview on topics including: (1) policy, legislation, and regulations aimed at continuing federal and provincial decarbonization efforts; (2) regulatory developments impacting power, hydrogen, and oil and gas pipelines; (3) consideration of cumulative impacts in duty to consult cases; (4) expansion of Indigenous-owned energy projects alongside progression in the implementation of UNDRIP across Canada; (5) jurisdictional disputes between the federal and provincial governments (for example, considerations regarding the Impact Assessment Act and Alberta Sovereignty Act); and (6) clarification of the application of the post-Vavilov standard of review
New Hosts for an Old Disease: History of the Organized Pseudolegal Commercial Argument Phenomenon in Canada — Part III
No full textUnited States-sourced false law concepts, “pseudolaw,” were the schematic backbone for a number of Canadian anti-authority and criminal populations that operated in 2000–2015. These “first wave” pseudolaw groups and their descendants are now dead or inactive.
A “second wave” of novel pseudolaw groups has since emerged, energized and catalyzed by economic stress and the COVID-19 pandemic. This article reviews Canadian second wave pseudolaw and its host populations, documents second-wave pseudolaw theories and activities, and examines their comparatively limited success. Finally, the potential of violence building off pseudolaw in Canada is investigated
The Thing and Judicial Methodology in Resolving Novel Property Claims: It Matters When It Matters
No full textThis article explores, in a very preliminary way, two issues that emerge when Bruce Ziff’s identification of two judicial methodologies in resolving novel property claims is coupled with the two currently dominant theories of property. First, that there is an intuitive correspondence, or correlation, between judicial approach and theory of property produces two correlatives — the attributes-property as things correlative, and the functional-property as relations correlative. And, second, in neither of the two correlatives is the thing or subject-matter of property merely a dispensable backdrop to the inquiry; rather, for both, the thing remains absolutely essential to understanding what property is and concluding that it exists in any given case. But less certainty exists as to when a court must take account of the thing in the context of a discrete novel property claim. Perhaps the most that can be claimed is that it matters when it matters
Property in Place: A Legacy of Context
Full text linkLegal research that highlights context to emphasize circumstances in which decisions occur is important for the legal academy as it reveals the realities in which law operates. This is particularly true for property law which, as the work of Bruce Ziff shows, the perspective of stories, people, and geographies are essential to understanding. In his investigation of seminal property case law, Ziff does not simply discuss legal rules, rather, Ziff explores the real life features of each case. Ziff provides a micro perspective on cases, which also capturing broader information that provides a macro outlook on how legal argument is created. Through this work it becomes clear that context matters
Prevailing Winds: Regulatory Frameworks and Commercial Realities for Developing Wind and Green Hydrogen Projects in Nova Scotia and Newfoundland and Labrador
Full text linkGovernment and industry in Nova Scotia and Newfoundland and Labrador are displaying increasing enthusiasm for onshore and offshore wind projects as well as associated development of green hydrogen resources. There are possible gaps between the commercial realities of wind-related development and both existing and proposed regulatory regimes in comparison with select international offshore regimes. The regulatory context and the makeup of the electrical grid in Nova Scotia and Newfoundland and Labrador have both parallels and distinctions, providing for differing trajectories when it comes to the development of onshore wind, offshore wind, and green hydrogen. More mature wind and hydrogen regulatory regimes within the European Union provide indicators of challenges that may be faced by both provinces as each try to rapidly pursue wind and green hydrogen development
Freedom of Expression: Values and Harms
No full textWhen considering restrictions on socially disfavoured expression, the Supreme Court of Canada has often considered the targeted expression’s “value.” In the seminal cases of Ford v. Quebec and Irwin Toy Ltd. v. Quebec, the Supreme Court articulated the importance of expressive freedom by relating it to three core values: (1) seeking and attaining the truth; (2) participation in democratic institutions; and (3) diversity in forms of individual self- fulfillment. Subsequent cases considering restrictions on expression have evaluated the extent to which the targeted expression advances these values. Ironically, although Ford and Irwin Toy embraced a broad conception of expressive freedom, the Supreme Court has used the values analysis developed in these cases to justify limiting disfavoured expression. As applied to marginalized ideas, the Supreme Court has tailored its balancing test under R. v. Oakes such that expression found to be “distant from the core of free expression values” is granted little protection under the Canadian Charter of Rights and Freedoms. Under this test, legal restrictions on hate speech, obscenity, and other forms of disfavoured expression have been upheld based on the Supreme Court’s low assessment of the value of the underlying expression.
This article argues that although certain forms of expression may be validly restricted under the Charter, the Supreme Court’s practice of assessing the value of targeted expression when applying the Oakes test is both politically illegitimate and vulnerable to error. This practice should be abandoned in favour of an alternative application of Oakes that balances (1) the severity of the restriction against (2) the harm of the targeted expression. Under this analysis, the value of the expression is not a factor because all expression is considered equally valuable. This approach adopts a relativistic perspective on the value of free expression and denies the ability of courts to mediate absolute truth. According to this view, the only characteristic of targeted expression that may justify its restriction is its likelihood to cause harm, a question more susceptible to judicial determination than its underlying value. The impetus for my argument is that, as applied, the Supreme Court’s values analysis inevitably imposes political preferences onto Charter interpretation. A more politically- neutral framework would be more consistent with section 2’s unqualified protection of “thought, belief, opinion and expression,” as well as section 1’s concern for “a free and democratic society.