Alberta Law Review (ALR)
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An Intellectual History of Comparative Tax Law
No full textIn this article, the author argues that comparative tax law has an intellectual history. More specifically, the author claims that history reveals there is a distinguishable comparative tax law scholarship where tax scholars engage in common debates. The author then offers a description of method, highlighting the difficulty of identifying the work that might be considered “comparative tax law.” Next, the author conceptualizes and clusters contributions from scholars who have framed the comparative tax law field. The author argues that our national boundedness, combined with the lack of an explicit network of scholars, has masked the rich intellectual history in the field of comparative tax law. Finally, the author concludes by drawing attention to the network effects that seem to inform some of the approaches taken by the key contributors to comparative tax law’s intellectual history
Adapting to the Digital Transformation
No full textSociety is undergoing a digital transformation as artificial intelligence (AI) and other technologies are developed to optimize decision-making and operational performance. This trend is particularly prevalent in the energy industry. The legal considerations of AI in the context of contract law, tort law, and regulatory law present unique challenges for lawyers attempting to advise on appropriate risk-management strategies. The current state of the law, and the different jurisdictional approaches to AI, demonstrate that how these legal challenges are addressed may have significant impacts on the risks and rewards realizable through AI. The rapid evolution of AI and its complex nature may hinder the effectiveness of societal institutions charged with legislating, regulating, and applying the law to AI-related matters
A Theory of Vicarious Liability
Get PDFThis article proposes a theory\u27 of vicarious liability which attempts to explain the central features and limitations of the doctrine. The main premise of the article is that the common law should continue to impose vicarious liability because it can co-exist with the current tort law regime that imposes liability for fault. The author lays out the central features of the doctrine of vicarious liability and examines why the leading rationales (such as control, compensation, deterrence, loss-spreading, enterprise liability and mixed policy) fail to explain or account for its doctrinal rules.
The author offers an indemnity theory for vicarious liability and examines why the current rules of vicarious liability are limited in application to employer-employee relationships and do not extend further. It is proposed that the solution to the puzzle of vicarious liability rests within the contractual relationship between employer-employee and not the relationship between the employer and the tort victim. The proposed indemnity theory implies a contract term that indemnifies the employee for harms suffered in the course of his or her employment. Vicarious liability then follows from an application of the contractual concepts of subrogation and indemnity to the particular relationship between employee, employer and tort victim. Finally, the article discusses and attempts to resolve the possible criticisms that may follow the indemnity theory, including concerns that it is in conflict with leading decisions, including Lister v. Romford. Bazley v. Curry and Morgans v. Launchbury
Adoption Constitutionalism: Anishinaabe Citizenship Law at Fort William First Nation
No full textThis article explores familial jurisdiction over citizenship, using the study of Anishinaabe citizenship practices in the Fort William First Nation, through the lens of adoption stories. The author highlights how families are able to use adoption to regulate citizenship, bringing new citizens into the nation, while also selecting those who do not belong. The familial system of affirmation is different than a Certificate of Indian Registration and requires collective action, rather than individual self-determination. Belonging at Fort William is further argued to not depend solely on blood quantum, Indian status, or band membership but, rather, depends on active community determination and accountability to the community on an on-going basis. Seen this way, adoption narratives reveal a citizenship order that challenges Canada’s claimed jurisdiction to discern who belongs with First Nations
Back to Burgess: The Impact of the White Burgess Expert Evidence Regime in Alberta Decisions
No full textThe law on the admissibility of expert evidence was refined in the Supreme Court of Canada’s White Burgess decision. While still retaining the Mohan criteria, the Supreme Court further defined the trial judge as an agent of change through an enhanced gatekeeper function. However, all stakeholders in the justice system have a gatekeeper function and must work together when determining the use to be made of evidence. Through surveying Alberta cases involving expert evidence, the author identifies areas where lower courts are applying the new approach and where they do not fully embrace the new approach, but revert back to the traditional Mohan criteria. The author discusses notable themes from recent case law to identify potential future issues involving expert evidence. Although slowly, Alberta courts are applying the new regime, and the focus and direction of expert evidence continue to develop
The Devil is in the Scale: Revisiting the Commonality Requirement in Charter Class Actions
No full textEven a cursory look at the literature reveals scant agreement among experts on the future of Charter class actions. In no small part, this uncertainty can be attributed to the divergent views among the courts concerning the proper contours of the commonality threshold for aggregate Charter proceedings. While the doctrinal narrative of Thorburn suggests that Charter rights are individual in nature and, thus, are not easily amenable to collective redress, the counter-narrative delivered by Good posits that in order for a Charter class action to pass the commonality hurdle of certification “it does not have to resolve all issues that may exist in terms of establishing liability.” Although it is easy to see Thorburn and Good as thesis and antithesis, the subsequent Charter class actions such as Murray can hardly be portrayed as a synthesis. Hence, uncertainty over the commonality standard reigns.
Taking these observations as its guiding thread, this article makes a case for revisiting the commonality requirement in Charter class actions and argues that “over-individualization” of Charter rights that has been imputed into the analysis by Thorburn is unjustified on both descriptive and normative levels. Descriptively, such “over-individualization” is misguided because it semantically overpowers the analysis which, if properly conducted, would often reveal either no need for individual fact-finding at all or the possibility to follow the resolution of common issues with individual mini-trials. Normatively, overreliance on individualized inquiries as part of the commonality analysis is misguided because it misconstrues the very nature of the class action regime
Building Haystacks: Information Retention and Data Exploitation by the Canadian Security Intelligence Service
No full textThis article examines the technical topic of CSIS’s modern data acquisition, retention, and exploitation, a matter not canvassed in the existing legal literature. As part of a special collection on the National Security Act (NSA 2017), it focuses on the policy and legal context driving the NSA 2017 amendments, relying on primary materials to memorialize this background. This article examines how CSIS has been pulled in divergent directions by its governing law, and sometimes a strained construal of those legal standards, toward controversial information retention practices. It argues that the tempered standards on acquisition, retention, and exploitation of non-threat-related information created by the NSA 2017 respond to civil liberties objections. The introduction of the “dataset” regime in the NSA 2017 may finally establish an equilibrium between too aggressive an information destruction standard that imperils due process and too constraining an information retention system that undermines CSIS’s legitimate intelligence functions. The article flags, however, areas of doubt, the resolution of which will have important implications for the constitutionality and legitimacy of the new system
Let\u27s Talk About Royalties: The Continued Uncertainty Surrounding the Creation and Legal Status of the Overriding Royalty
No full textThe oil and gas and mining industries developed the practice of creating royalties that would run with the land. This led to the Supreme Court of Canada’s decision in Bank of Montreal v. Dynex Petroleum Ltd. Despite the decision in Dynex recognizing a new property right and changing the common law, the law remained unsettled until the Third Eye Capital Corporation v. Ressources Dianor Inc./Dianor Resources Inc. and Manitok Energy Inc (Re) decisions apparently simplified the concept of royalties as property interests. In this article, the authors explore the overriding royalty, its common law evolution, the uncertainties surrounding its proper legal characterization, the implications of such legal uncertainty, and the shift the Dianor and Manitok decisions represent, while considering the nature of the interests that royalties represent, the manner in which industry has attempted to protect those interests, and the efficacy of such attempts
Recent Legislative and Regulatory Developments of Interest to Energy Practitioners
No full textThis article provides a high-level overview of regulatory and legislative developments in Canada between May 2018 and early May 2019. The authors reviewed regulatory initiatives, decisions, case law, and legislation from provincial, territorial, and federal authorities. Topics of note include climate change regulation, renewable energy initiatives, federal project approvals and pipeline issues, abandonment liability, and developments related to Indigenous law
“We the North” As the Dispossession of Indigenous Identity and a Slogan of Canada’s Enduring Colonial Legacy
No full textAs the only Canadian team in the professional United States’ National Basketball Association, the Toronto Raptors adopted the slogan “We the North.” The new slogan is designed to invoke historical myths and narratives of what or who Canada is. The slogan emblematically assumes, as a metanarrative, the mythologized national identity of Canada as distinctly “northern,” revealing itself to be a reproduction of banal nationalism in Canada in the process. It is, however, more than that: it is the appropriation of an imagined northern Canadian, and specifically Inuit or authentic northern (indigenous) identity. Something as seemingly innocuous and banal as a Canadian sports team’s slogan can manifest the enduring colonial legacy of Canada. Banal nationalism in Canada is anything but benign, and in the case of the Raptor’s highly appropriative slogan, dispossessive of Inuit identity and an enduring symbol of Canada’s colonial legacy. In the process of attempting to encapsulate the imagined Canadian national identity and fashion it into a metanarrative, the slogan appropriates the uniqueness that makes northerners and northern indigenous peoples what they are, northerners, and dispossesses them of facets of their identity