{"title":"Peeling an Orange and Finding an Apple: Aboriginal Rights Litigation, Joseph Magnet & Dwight Dorey, eds.","authors":"Constance Macintosh","doi":"10.29173/ALR1260","DOIUrl":"https://doi.org/10.29173/ALR1260","url":null,"abstract":"","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":"43 1","pages":"481-488"},"PeriodicalIF":0.5,"publicationDate":"2020-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43336215","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Duelling Narratives of Religious Freedom: A Comment on Syndicat Northcrest v. Amselem","authors":"K. Chan","doi":"10.29173/ALR1263","DOIUrl":"https://doi.org/10.29173/ALR1263","url":null,"abstract":"","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":"43 1","pages":"451-467"},"PeriodicalIF":0.5,"publicationDate":"2020-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45023596","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article considers the implications of the recent Supreme Court of Canada decision in Peoples Department Stores v. Wise for the law of directors' fiduciary duties. The Court’s decision is attacked on two grounds. First, the author criticizes the Court’s interpretation and treatment of the phrase "the best interests of the corporation" as found in the Canada Business Corporations Act. It is argued that the decision in Wise rejects the traditional interpretation of this phrase which was previously accepted to mean "the best interests of the shareholders collectively. " This rejection raises the spectre of the debate between the "shareholder primacy " model of directors' duties and broader "pluralist" alternatives. By undercutting the lynchpin of the "shareholder primacy" model, the author suggests that the Court has left a vacuum in the law because the Court failed to outline what is to replace this traditional interpretation, or even to acknowledge the substantive change being made. At the level of process, it is equally suggested that the revision of important principles in corporate law exclusively through the judiciary is fundamentally undesirable, where the law of directors' duties has such a large element of public policy attached to it. The author also proposes that the decision in Wise has resulted in an unacceptable level of uncertainty in the law, and that this uncertainty was neither necessary nor advisable to resolve the case before the Court. Second, the author criticizes the Court's comments indicating that a breach of fiduciary duty requires mala fides on the part of directors. It is argued that this is inconsistent with pre-existing case law.
{"title":"Supreme Court Restates Directors' Fiduciary Duty - A Comment on Peoples Department Stores v. Wise","authors":"D. MacPherson","doi":"10.29173/ALR1257","DOIUrl":"https://doi.org/10.29173/ALR1257","url":null,"abstract":"This article considers the implications of the recent Supreme Court of Canada decision in Peoples Department Stores v. Wise for the law of directors' fiduciary duties. The Court’s decision is attacked on two grounds.\u0000 First, the author criticizes the Court’s interpretation and treatment of the phrase \"the best interests of the corporation\" as found in the Canada Business Corporations Act. It is argued that the decision in Wise rejects the traditional interpretation of this phrase which was previously accepted to mean \"the best interests of the shareholders collectively. \" This rejection raises the spectre of the debate between the \"shareholder primacy \" model of directors' duties and broader \"pluralist\" alternatives. By undercutting the lynchpin of the \"shareholder primacy\" model, the author suggests that the Court has left a vacuum in the law because the Court failed to outline what is to replace this traditional interpretation, or even to acknowledge the substantive change being made. At the level of process, it is equally suggested that the revision of important principles in corporate law exclusively through the judiciary is fundamentally undesirable, where the law of directors' duties has such a large element of public policy attached to it. The author also proposes that the decision in Wise has resulted in an unacceptable level of uncertainty in the law, and that this uncertainty was neither necessary nor advisable to resolve the case before the Court.\u0000 Second, the author criticizes the Court's comments indicating that a breach of fiduciary duty requires mala fides on the part of directors. It is argued that this is inconsistent with pre-existing case law.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":"43 1","pages":"383-383"},"PeriodicalIF":0.5,"publicationDate":"2020-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47415466","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article proposes a theory' 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.
本文提出了一种替代责任理论，试图解释替代责任理论的主要特征和局限性。本文的主要前提是英美法系应继续实施替代责任，因为它可以与现行侵权法制度共存。作者列出了替代责任理论的核心特征，并考察了为什么主要的理论基础(如控制、补偿、威慑、损失扩散、企业责任和混合政策)未能解释或说明其理论规则。作者提出了一种替代责任的补偿理论，并探讨了现行的替代责任规则为何局限于雇主-雇员关系而没有进一步扩展。本文认为，替代责任问题的解决在于雇主与雇员之间的契约关系，而不是雇主与侵权受害人之间的关系。拟议的赔偿理论暗示了一种补偿雇员在雇佣过程中所受损害的合同条款。因此，代位求偿和赔偿的合同概念适用于雇员、雇主和侵权受害者之间的特殊关系，由此产生了替代责任。最后，本文讨论并试图解决赔偿理论可能受到的批评，包括对赔偿理论与主要决策(包括Lister v. Romford)相冲突的担忧。贝兹利诉库里案和摩根诉朗彻伯里案。
{"title":"A Theory of Vicarious Liability","authors":"J. Neyers","doi":"10.29173/ALR1254","DOIUrl":"https://doi.org/10.29173/ALR1254","url":null,"abstract":"This article proposes a theory' 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.\u0000 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.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":"43 1","pages":"287-326"},"PeriodicalIF":0.5,"publicationDate":"2020-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43534192","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"What Is a Crime? Defining Criminal Conduct in Contemporary Society, Law Commission of Canada, ed.","authors":"Giles Renaud","doi":"10.29173/ALR1261","DOIUrl":"https://doi.org/10.29173/ALR1261","url":null,"abstract":"","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2020-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43797394","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article presents an historical account of the English criminal trial jury from its birth in the thirteenth century, as a largely self-informing institution that replaced the ordeals, to the nineteenth century, where the passivity of the modern trial jury became firmly established as a result of the influence of legal counsel and the development of the adversarial criminal trial. The expansive timeline that is assessed reveals that public distrust of the motives and competency of jurors is a recurrent theme and not simply a modern phenomenon. However, the historical evidence suggests that criminal trial jurors tended not to suffer from the deficiencies attributed to them by some commentators. Because the jury has undergone significant transformations in the past and survived, modern day proponents of the criminal trial jury could argue that it is capable of continuing to accommodate significant changes to the practices that govern its conduct. For those inclined towards the reform of the English criminal trial jury, some of the features noted by the author that have been discarded over time may be considered deserving of revival.
{"title":"The Origins, Early History and Evolution of the English Criminal Trial Jury","authors":"S. Anand","doi":"10.29173/ALR1258","DOIUrl":"https://doi.org/10.29173/ALR1258","url":null,"abstract":"This article presents an historical account of the English criminal trial jury from its birth in the thirteenth century, as a largely self-informing institution that replaced the ordeals, to the nineteenth century, where the passivity of the modern trial jury became firmly established as a result of the influence of legal counsel and the development of the adversarial criminal trial. The expansive timeline that is assessed reveals that public distrust of the motives and competency of jurors is a recurrent theme and not simply a modern phenomenon. However, the historical evidence suggests that criminal trial jurors tended not to suffer from the deficiencies attributed to them by some commentators. Because the jury has undergone significant transformations in the past and survived, modern day proponents of the criminal trial jury could argue that it is capable of continuing to accommodate significant changes to the practices that govern its conduct. For those inclined towards the reform of the English criminal trial jury, some of the features noted by the author that have been discarded over time may be considered deserving of revival.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2020-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45552916","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Cross-border sales of prescription drugs to U.S. patients by Canadian internet pharmacies have generated significant controversy in the U.S. and Canada. Violative of U.S. drug legislation and of Canadian professional codes of conduct, cross-border pharmacy has nonetheless flourished in response to strong demand and incomplete enforcement. Proponents laud the greater affordability of drugs for U.S. customers; opponents decry the practice as unsafe for U.S. patients, economically ill-advised, and ultimately contrary to Canadian interests. This article evaluates the safety arguments put forward by the U.S. Food and Drug Administration and others and concludes that these concerns, though valid, do not justify the current U.S. prohibition on prescription drug imports from Canada. Similarly, professional regulatory bodies' objections to the participation of Canadian doctors and pharmacists in cross-border pharmacy are misplaced. More compelling are the economic arguments against cross-border pharmacy, though even here opponents assume normative positions that should be explicitly defined and socially determined. Finally, however, the article acknowledges that Canada may be compelled by real-world circumstances to curtail cross-border pharmacy in order to safeguard domestic drug supplies.
{"title":"On the Legitimacy of Cross-Border Pharmacy","authors":"S. Rabinovitch","doi":"10.29173/ALR1255","DOIUrl":"https://doi.org/10.29173/ALR1255","url":null,"abstract":"Cross-border sales of prescription drugs to U.S. patients by Canadian internet pharmacies have generated significant controversy in the U.S. and Canada. Violative of U.S. drug legislation and of Canadian professional codes of conduct, cross-border pharmacy has nonetheless flourished in response to strong demand and incomplete enforcement. Proponents laud the greater affordability of drugs for U.S. customers; opponents decry the practice as unsafe for U.S. patients, economically ill-advised, and ultimately contrary to Canadian interests. This article evaluates the safety arguments put forward by the U.S. Food and Drug Administration and others and concludes that these concerns, though valid, do not justify the current U.S. prohibition on prescription drug imports from Canada. Similarly, professional regulatory bodies' objections to the participation of Canadian doctors and pharmacists in cross-border pharmacy are misplaced. More compelling are the economic arguments against cross-border pharmacy, though even here opponents assume normative positions that should be explicitly defined and socially determined. Finally, however, the article acknowledges that Canada may be compelled by real-world circumstances to curtail cross-border pharmacy in order to safeguard domestic drug supplies.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":"43 1","pages":"327-368"},"PeriodicalIF":0.5,"publicationDate":"2020-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48487703","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The author explores the jurisdictional ability of an administrative tribunal — specifically, the Alberta Energy and Utilities Board (EUB) — to decide constitutional matters. She focuses particularly on tribunal decisions relating to Charter rights and Aboriginal or treaty rights (s. 35(1)) and examines the recent decisions of Martin and Paul from the Supreme Court of Canada. The author concludes that for questions of law, the EUB has not only the option but the duty to consider constitutional questions.
{"title":"Alberta's Energy and Utilities Board and the Constitution of Canada","authors":"Nickie Vlavianos","doi":"10.29173/ALR1256","DOIUrl":"https://doi.org/10.29173/ALR1256","url":null,"abstract":"The author explores the jurisdictional ability of an administrative tribunal — specifically, the Alberta Energy and Utilities Board (EUB) — to decide constitutional matters. She focuses particularly on tribunal decisions relating to Charter rights and Aboriginal or treaty rights (s. 35(1)) and examines the recent decisions of Martin and Paul from the Supreme Court of Canada. The author concludes that for questions of law, the EUB has not only the option but the duty to consider constitutional questions.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":"43 1","pages":"369-381"},"PeriodicalIF":0.5,"publicationDate":"2020-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45346201","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Serhan v. Johnson & Johnson: A Case Comment","authors":"R. Brown, Moin A. Yahya","doi":"10.29173/ALR1264","DOIUrl":"https://doi.org/10.29173/ALR1264","url":null,"abstract":"","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2020-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45895332","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
After reviewing the place of securities law enforcement within the Canadian court system, the author traces the Peers and Aitkens decisions from the Provincial Court to the Supreme Court and outlines how these cases dealt with the question of what penalties trigger the right to a jury trial under section 11(f) of the Charter. The author explains how section 11(f) impacts the division of powers by creating a constitutional cap on the prison sentences that are available for violations of provincial law. In light of stiff maximum penalties for violations of securities laws, the Peers and Aitkens decisions raise the question of whether there are constitutional reasons to continue to try regulatory offences by judge alone in provincially appointed courts.
{"title":"The Jury is Out: The Controversy About Jury Trials Under the Alberta Securities Act","authors":"R. Stack","doi":"10.29173/alr2603","DOIUrl":"https://doi.org/10.29173/alr2603","url":null,"abstract":"After reviewing the place of securities law enforcement within the Canadian court system, the author traces the Peers and Aitkens decisions from the Provincial Court to the Supreme Court and outlines how these cases dealt with the question of what penalties trigger the right to a jury trial under section 11(f) of the Charter. The author explains how section 11(f) impacts the division of powers by creating a constitutional cap on the prison sentences that are available for violations of provincial law. In light of stiff maximum penalties for violations of securities laws, the Peers and Aitkens decisions raise the question of whether there are constitutional reasons to continue to try regulatory offences by judge alone in provincially appointed courts.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2020-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45583445","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：