Alberta Law Review (ALR)
Not a member yet
2493 research outputs found
Sort by
Gender in Automobile Insurance Underwriting: Some Insureds Are More Equal Than Others
Get PDFThis article examines the use of gender as a variable by the insurance industry to determine insurance premiums. This article explores the tension between society’s abhorrence of sexual discrimination on one hand, and the insurance industry’s need for a cost-effective method of classifying risk on the other. Following an analysis of how gender-based classification has been treated by Canadian and international courts, this article recommends that gender-based classification in Canada be eventually phased out
R. v. Imperial Tobacco Ltd.: More Restrictions on Public Authority Tort Liability
Get PDFSince 2001, it has become very difficult for claimants to successfully sue public authorities for their negligent conduct, particularly in relation to their regulatory functions. This primarily has been due to the refined duty of care formula established by the Supreme Court of Canada in Cooper v. Hobart and Edwards v. Law Society of Upper Canada. As a result of their 2011 R. v. Imperial Tobacco Ltd. decision, the Supreme Court of Canada has restricted even further the ability of private claimants to successfully sue governments for their regulatory failures
The Law of Nuisance in Canada, Gregory S Pun & Margaret I Hall (Markham, Ont: LexisNexis, 2010)
Get PDF“There is perhaps no more impenetrable jungle in the entire law,” Dean Page Keeton once wrote, “than that which surrounds the word ‘nuisance.”’ Such impenetrability may explain steps taken in England to subsume nuisance law into the fault-based law of negligence. It does not take much imagination to appreciate why the English would move in that direction. At some point, after all — Dean Keeton’s jungle floor having become impossible to navigate — practitioners and judges must be tempted to join the academic lawyers who gaze down from the treetops. The perspective from the canopy might well persuade them that their problem is not amenable to the small doctrinal fix of cutting a path through a grove or two. Rather, it is more fundamental, going to the very lay of the land. They therefore abandon nuisance law’s tangled thickets altogether, preferring — to bring the metaphor home now for a decent burial — the broader and more familiar paths of negligence law
Justice Bertha Wilson: One Woman\u27s Difference, Kim Brooks, Ed (Vancouver: UBC Press, 2009)
No full textJustice Bertha Wilson: One Woman’s Difference is a collection of 16 essays which reflect upon Wilson’s contributions as jurist, speaker, chair of the Canadian Bar Association Task Force on Gender Equality in the Legal Profession, mentor, and role model to a generation of lawyers and judges. The authors are all women; fifteen of the essays are written by academics (and a student) from law faculties across Canada, and one essay is authored by a barrister. For the most part the authors write from the perspective of their own considerable expertise in a particular area of law. Their critical analysis of several of Wilson’s judgments from both the Ontario Court of Appeal and the Supreme Court of Canada caused me to reflect upon those judgments in novel ways. Some of the authors tackle the tricky issue of whether Wilson was a “feminist” judge
Recent Judicial Developments of Interest to Energy Lawyers
Get PDFThis article provides an overview of recent judicial developments of interest to energy lawyers. The authors summarize and provide commentary on recent Canadian case law in the areas of Aboriginal law, leases, joint operating agreements, surface rights, environmental law, contract law, taxation, privilege, employment law, conflict of laws, and limitations law
Comparing Aboriginal and Other Duties to Consult in Canadian Law
Get PDFThis article compares recent Aboriginal rights and labour relations court decisions to assess the way the Canadian jurisprudence has conceptualized the duty to consult. While traditionally the duty to consult has been considered a constitutional duty, enshrined in section 35(1) of the Constitution Act, 1982 and section 2(d) of the Canadian Charter of Rights and Freedoms, the author suggests that courts have had great difficulty conceptualizing this duty as a constitutionally required process. The author’s analysis reviews the sources and purposes of constitutional duties to consult and the hurdles the courts have faced in applying the duty meaningfully, and drawing on concepts from administrative law, offers a tentative solution to the problem of making consultative practices effective
Limits on the Operation of Exclusion Clauses
Get PDFThis article discusses exclusion clauses and instances when a court should intervene to limit the operation of such clauses. The author argues that exclusion clauses which are used improperly have the potential to damage the nature of contract by undermining the transfer or creation of rights under the contract. More specifically, the author discusses that exclusion clauses may eliminate obligations owed under the contract or absolve one party from liability completely. The author further argues that exclusion clauses allow for the unilateral alteration of the allocation of risk under a contract. In discussing these issues, the author makes reference to Canadian case law, particularly the Supreme Court of Canada’s views on appropriate limits on enforcement of exclusion clauses. In conclusion, the author considers the validity of public policy as a rationale to address the various problems created by exclusion causes
Fixing the Energy Project Approval Process in Canada: An Early Assessment of Bill C-38 and Other Thoughts
Get PDFThis article examines Bill C-38 and its potential impact on the current energy project assessment process in Canada, and considers whether Bill C-38 is likely to achieve its stated objectives. This article then considers how Bill C-38, as a proxy for the major energy review processes in Canada, addresses Aboriginal, stakeholder, and political issues and whether the Bill is likely to have any significant influence on these issues. On the assumption that Bill C-38 does not fully address these issues, this articlethen concludes with a further discussion of these influences and what might be done to address them
The Fiduciary Explanation for Presumed Undue Influence
Get PDFDespite centuries of the common law more or less recognizing the distinction between actual and presumed undue influence, recent cases from the House of Lords and Supreme Court of Canada indicate a failure to appreciate the true nature of presumed undue influence and its connection to fiduciary law. As such, an appropriate legal test for presumed undue influence is still required. Through an examination and critique of leading case law and academia on the conventional fiduciary obligation, deferential trust, and the two types of undue influence, this article makes a case for the adoption of fiduciary influence as the appropriate test for deferential trust. The circumstances that can give rise to fiduciary influence are infinitely variable; however, courts must determine whether, on the facts, the trusted party acquired influence for the limited and defined purpose of acting in the trusting party’s interest at the time of the impugned transaction