Alberta Law Review (ALR)
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Covenant Marriage and the Conflict of Laws
Get PDFRecently, three American stales introduced covenant marriage as a new form of marriage in response to the rising divorce rate. The author examines the threedistinguishing characteristics of covenant marriage that distinguish it from the current form of marriage offered in the United States and Canada. For the United States, the author canvasses the possibility of separating jurisdiction from choice of law. separating subject matter jurisdiction from personal jurisdiction, and recognition of the parties\u27 intent, as three possible alternatives that non-covenant marriage states can utilize in order to respect the parties\u27 intentions and the covenant marriage state\u27s legislative intent. For Canada, the author canvasses the possibility that while Canada could take jurisdiction on the "ordinarily resident" basis, they may refuse jurisdiction on the basis of <i>forum non conveniens</i> or, alternatively, that they may apply the substantive law of the covenant marriage state on the basis that the Declaration of Intent signed by the parties represents an express choice of law clause
Role and Responsibilities of Counsel for the Child in Alberta: A Practitioner\u27s Perspective and a Response to Professor Bala
Get PDFThe representation of children and the role and responsibilities of counsel have recently become topics of discussion in Alberta. This dialogue includes consideration of whether, and in what situations, acting as a best-interests advocate, an amicus curiae, or a traditional advocate best meets the goal of reaching an outcome that serves the best interests of a child whose parents are engaged in family law and child protection disputes. This article proposes that the most appropriate role for counsel who represent children becomes obvious once the societal motivation for having such representation is clarified. In particular, counsel\u27s role depends on whether children are accepted as rights-bearers, which also impacts the interpretation of statutory language, particularly "interests" and "best interests." and the test for capacity to instruct counsel. This analysis rejects Professor Bella\u27s proposal that counsel should advocate their own opinions of the child\u27s best interests because such an approach exceeds the training and expertise oflawyers and is not supported by current legal systems. The author joins Professor Bala in urging decision- and policy-makers to develop a coherent child representation program to address these and related issues.
Through a Glass Darkly: The Role and Review of "National Security" Concepts in Canadian Law
Get PDFThe expression "national security" or its close similes lacks a precise meaning, even in the public policy literature. Nevertheless, the concept appears in over 30 federal statutes. In most instances, the term is undefined, an important oversight in light of the significant powers these statutes accord the government. Under these circumstances, how courts review government invocations of "national security" is of real importance. With some exceptions, courts applying s. 7 of the Charter and standard administrative law doctrines have accorded substantial deference to government national security determinations. When largely deferential substantive review of the ambiguous concept of national security is coupled with the ex parti and in camera context in which these cases are often heard, the net effect is to leave government with a freer hand in national security matters than in other domains of administrative decision making. Several possible responses to this problem are proposed
A Canadian Commentary on Constructive Expropriation Law Under NAFTA Article 1110
Get PDFBy virtue of the Constitution Act, 1982. Canada has established that some rights andfreedoms are beyond the reach ofgovernment. However, the protection of properly, especially with regard to the guaranteeing of compensation ifproperty is taken by the state, has not been elevated to this same level of constitutional protection. This article examines regulatory takings claims under Article 1110 ofthe North American Free Trade Agreement and provides an exposition of the law insofar as it has developed in the NAFTA context. It begins with a survey of constructive takings in international and domestic U.S. law and concludes by highlighting the obvious differences between the protection afforded to foreign NAFTA investors in Canada and domestic owners of properly when property is taken
Drafting Canadian Oilfield Master Service Agreements: An Overview of Key Clauses and Market Trends
Get PDFA cohesive master service agreement is a fundamental component of the operator–service provider relationship for the provision of oilfield services for upstream oil and gas operations. This article: explores the sometimes unique contract relationships found in the Canadian marketplace; provides an overview of key contentious issues and potential solutions, which are examined and contrasted with those seen in American and international contracts; and identifies recent relevant market trends, including special considerations for large-scale hydraulic fracturing operations and the perspectives of new international operators entering the Canadian marketplace
Judicial Fundraising in Canada
Get PDFThe extent to which judges should be involved in fundraising for civic and charitable causes is an important issue of judicial ethics. The default principle adopted by judicial councils in Canada precludes judges from fundraising subject to only minor exceptions. Yet anecdotal evidence indicates that some Canadian judges do engage in fundraising. This raises the question of whether there should be a change to the principle so as to allow judges greater scope for fundraising activities. The aim of this article is to review the ethical principles for judicial fundraising and evaluate whether they require modifications for the modern Canadian judiciary. The authors consider several hypothetical fundraising scenarios and propose recommendations to the Canadian Judicial Council’s <i>Ethical Principles for Judges</i>
From Right to Wrong: Grounding a "Right" to Privacy in the "Wrongs" of Tort
Get PDFThis article discusses the theoretical foundations for a common law tort of invasion of privacy. The author argues that invading a person’s “right” to privacy is conduct that can be regarded as a tortious “wrong.” He illustrates this by integrating privacyinto the work of several leading tort theorists and also by drawing analogies between privacy and defamation, on the one hand, and battery and trespass, on the other. He concludes that asking tort to protect privacy does not ask it to do work of a kind any different in substance from that which it has long been doing
Re-defining Privity of Contract: Brown v. Belleville (City)
Get PDFCase comment on <i>Brown v. Belleville (City)</i>, 2013 ONCA 148, 114 OR (3d) 561
Personal Stare Decisis, HIV Non-Disclosure, and the Decision in Mabior
Get PDFThe doctrine of stare decisis has long been considered foundational to our judicial system. The concept operates in two manners: (1) to bind lower courts to the previous decisions of higher courts, which is known as vertical precedent; and (2) horizontal precedent — the practice of a court adhering to its own prior decisions. This article examines the adherence to horizontal precedent by appellate courts and, in particular, how appellate judges that have substantially disagreed with the majority through a concurring judgment should treat this concurrence in a subsequent case in which the majority’s legal rule has become a horizontal precedent. The discussion focuses primarily on Chief Justice McLachlin’s adherence to the majority’s decision in R. v. Cuerrier in her unanimous decision in R. v. Mabior, even though she wrote a concurring opinion in Cuerrier strongly disagreeing with the majority’s decision. This article argues that if precedent must prevail, Chief Justice McLachlin should have followed her own personal stare decisis rather than horizontal precedent
Smart Regulation — Rhetoric or Reality?
Get PDFThis article examines historical, contemporary, andemerging form of governmental regulation in various contexts and jurisdictions, and applies that information comparatively in undertaking descriptive and prescriptive analyses in relation to regulation in Canada\u27s energy sector. So-called "smart regulation " is the latest trend in regulatory (re)structuring. and the author attempts to probe the substance behind this catch-phrase to discover what its practical implications are to affected parties. The reader will contemplate how "smart regulation " differs, if at all from prescriptive regulation, goal-oriented regulation, performance-based regulation, and deregulation or whether it is some combination of several. "Smart regulation" necessarily imports inter- and intra-governmental cooperation and coordination to avoid regulatory duplication and multi-layering; in this regard Canada\u27s regulatory regime appears to be in transition. Accurately measuring the degree of regulatory and industrial efficiency and effectiveness resulting from the "smart regulation" movement may ultimately require more credible evaluation methodology and increased research in the area