Alberta Law Review (ALR)
Not a member yet
2493 research outputs found
Sort by
The Civil and Criminal Applications of the Identification Doctrine: Arguments for Harmonization
Get PDFThe identification doctrine refers to the attribution of mental states to a corporation. This article analyzes the two types of situations in which this doctrine is used. Tlte first is where the Crown wishes to hold a corporation liable for crimes requiring proof of mental fault. Canadian Dredge & Dock Co. Ltd. v. R. serves as the cornerstone case in which the doctrine is firmly established as a "sword" against corporations in the criminal law. The second situation in which the doctrine has been used is where the corporation sues in tort, and the defendant wishes to say that the mental state of the plaintiff corporation disentitles recovery. In other words, the doctrine can be used as a "shield" for individuals against claims in tort by corporations.Legislative amendments to the Criminal Code have altered criteria for the doctrine in the criminal law. These changes do not affect the "shield" use of the doctrine, which is still governed by the common law.The author argues for the harmonization of the common law doctrine with its criminal legislative counterpart
Finding Order in Calgary\u27s Cash Corner: Using Legal Pluralism to Craft Legal Remedies for Conflicts Involving Marginalized Persons in Public Spaces
No full textBinners, book and magazine sellers, day labourers protestors, and sex workers are fixtures in our Canadian urban jungle that the law seeks to regulate. Legal responses to the existence of marginalized persons in public spaces have aimed at excluding them from public space. Much of the work employing legal pluralism as a lens through which we view our urban landscape focuses on the effect of the law on marginalized communities. The courts are increasingly being asked by marginalized communities to mediate conflicts arising in public spaces. This article analyzes this effect on marginalized communities and suggests that, in finding remedies, the courts should take guidance from ethnographic research using a legal pluralism lens
The Contractual Principle of Good Faith and the Duty of Honesty in Bhasin v. Hrynew
Get PDFThis article explores the Supreme Court of Canada’s 2014 decision in Bhasin v. Hrynew. This includes an assessment of the new duty of honesty in contractual performance and the newly identified organizing principle of good faith. The authors also discuss contracting out of the duty of honesty — which Bhasin itself raises as a possibility — by assessing both Canadian and American law on point, including the Uniform Commercial Code. The article concludes that Bhasin’s largest and most lasting contribution is likely in how it expressly legitimates and defends the role of good faith in the common law of contract
The Scope and Meaning of Reasonableness Review
Get PDFThis article draws attention to the post-Dunsmuir framework regarding the standard of review of administrative action and the Supreme Court of Canada’s reluctance to engage in grand theorizing about the general principles of judicial review. The article explores the uncertainty surrounding the application of the standard of reasonableness and what factors can or should be taken into consideration during its application. The article identifies four key problems — the scope of the post-Dunsmuir framework, the scope of its correctness category, the difficult relationship between the reasons given for a decision and the substantive reasonableness of the decision in question, and the emergence of difficult distinctions bedevilling the application of the reasonableness standard. Through identifying weaknesses in the current administration of reasonableness review, it is hoped that the courts, sooner rather than later, will adopt a unified approach for using the reasonableness standard of review
Holmes on Law and Morality
Get PDFThis article explores Justice Holmes\u27 position on the relationship between law and morality, and discussessome of the mistaken interpretations of that position. Commentators\u27 claims to the contrary notwithstanding, Holmes \u27predictive theory of law and his discussion of the "bad man" do not illustrate the separation between law and morality but merely that lawful actions need not be performed for morally praiseworthy reasons and that positive law and morality do not always coincide. He suggested that the conflation of law and morality might be reduced by changing legal terminology so that moral and legal terms would not overlap, a proposal with possible drawbacks that Holmes did not seem to appreciate. That said, however, detractors overestimate the extent to which Holmes asserted that law and morality should be distinguished, thereby distorting both Holmes\u27 views and the value of his insights
The Last Word: Media Coverage of the Supreme Court of Canada, Florian Sauvageau, David Schneiderman and David Taras
No full textBook review of <i>The Last Word: Media Coverage of the Supreme Court of Canada,</i> Florian Sauvageau, David Schneiderman and David Taras (Vancouver: University of British Columbia Press, 2006)
Restrictions on Disposition in the Oil and Gas Industry: The Extinction of the Species?
Get PDFRestrictions on disposition in the oil and gas industry, predominantly rights of first refusal, can create significant uncertainties in oil and gas transactions, particularly complex ones. In an effort to discern trends in judicial approaches, the authors review Canadian jurisprudence dealing with difficult rights offirst refusal issues against the backdrop of academic and professional commentary in the 1990s, which promoted the establishment of judicially developed "default rules" to ensure interpretive certainty. The authors postulate that parlies ought not to presume the existence or application of "default rules" in the interpretation and application of restrictions on disposition, based on the jurisprudence. Rather. parties ought to focus on considered drafting when preparing agreements and. where uncertainties arise defaut in the application of provisions, ought to contemplate the reasonable expectations of the parties to the agreement
The EPC Contract and the Energy Lawyer
Get PDFWith conventional reserves on the decline and large scale energy projects enticing a broader array of energy producers and transporters to consider participation, it is inevitable that energy lawyers willbe called to advise upon and document the contracts that will facilitate the engineering, procurement, and construction (EPC) of these projects leading to commercial operation. This article surveys the marriage of owner and contractor that results from such contracts, beginning with preliminary issues such as control and tolerance for risk, moving through the various contractual methods to align the parties\u27 interests while anticipating, and responding to to fluctuating circumstances, and ending with options for both owners and contractors when faced with a deteriorating relationship
Recent Regulatory and Legislative Developments of Interest to Oil and Gas Lawyers
Get PDFSurveyed herein are the recent regulatory and legislative developments of significance to the oil and gas industry. This article canvasses decisions of the courts, bulletins from national and provincial regulatory bodies, and legislative initiatives to provide a comprehensive update for the oil and gas lawyer
Agricultural Biotechnology and the "Early-Working" Exemptions Under the Patent Act
Get PDFThe author explores the availability to genericmanufacturers of two research exemptions under the Canadian <i>Patent Act</i>. In order to expedite later market entry, processes of research and development and federal product approval are often initiated prior to patent expiry. The question arises of when these "early-working" endeavours will violate the protection offered hy a patent. The "research exemption " has been interpreted narrowly, and may only be of limited use to potential manufacturers engaging in early development of protected products. However, the "regulatory approval exemption" has been given a wider interpretation, both in Canada and the United States, and it is likely that processes related to regulatory approval will not as readily be considered as patent infringing. Finally, the author also briefly explores commercial and strategic considerations as they relate to these legal issues