{"title":"Is that All There Is? The Dubious Dividends of Daniels","authors":"K. Wilkins","doi":"10.29173/alr2568","DOIUrl":"https://doi.org/10.29173/alr2568","url":null,"abstract":" \u0000 ","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44361015","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 Supreme Court of Canada established an architectural model of the Constitution through the Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island and the Reference re Secession of Quebec. This model has an informing core of “organizing principles” engaging both written and unwritten rules. These two decisions and earlier landmark rulings have used unwritten principles to reach dramatic conclusions. Yet, the Supreme Court departs from this line of authority in Imperial Tobacco in which a strong textual approach is taken. The author argues this decision led to instability in constitutional doctrine that was further complicated in Trial Lawyers. This article explores the strengths of the Judges Reference and the Secession Reference and the need to uphold the use of unwritten constitutional principles while calling for the Imperial Tobacco case to be set aside.
{"title":"Imperial Tobacco and Trial Lawyers: An Unstable and Unsuccessful Retreat","authors":"James Johnson","doi":"10.29173/alr2563","DOIUrl":"https://doi.org/10.29173/alr2563","url":null,"abstract":"The Supreme Court of Canada established an architectural model of the Constitution through the Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island and the Reference re Secession of Quebec. This model has an informing core of “organizing principles” engaging both written and unwritten rules. These two decisions and earlier landmark rulings have used unwritten principles to reach dramatic conclusions. Yet, the Supreme Court departs from this line of authority in Imperial Tobacco in which a strong textual approach is taken. The author argues this decision led to instability in constitutional doctrine that was further complicated in Trial Lawyers. This article explores the strengths of the Judges Reference and the Secession Reference and the need to uphold the use of unwritten constitutional principles while calling for the Imperial Tobacco case to be set aside.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47507173","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 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.
{"title":"Back to Burgess: The Impact of the White Burgess Expert Evidence Regime in Alberta Decisions","authors":"Lisa A. Silver","doi":"10.29173/alr2562","DOIUrl":"https://doi.org/10.29173/alr2562","url":null,"abstract":"The 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.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47026512","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}
Even 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.
{"title":"The Devil is in the Scale: Revisiting the Commonality Requirement in Charter Class Actions","authors":"I. Ponomarenko","doi":"10.29173/alr2565","DOIUrl":"https://doi.org/10.29173/alr2565","url":null,"abstract":"Even 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. \u0000Taking 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.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49565961","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}
A. Acorn, Darcy Lindberg, J. Nichols, Eric L Pentland, Brock Roe
{"title":"Roundtable: Buffalo Days and Nights, Peter Erasmus and Henry Thompson","authors":"A. Acorn, Darcy Lindberg, J. Nichols, Eric L Pentland, Brock Roe","doi":"10.29173/alr2569","DOIUrl":"https://doi.org/10.29173/alr2569","url":null,"abstract":" \u0000 ","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48440091","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 law in Alberta regarding wrongful dismissal is at odds. The source of this schism is the moment of breach when an employee is dismissed with insufficient notice. The “Mandatory Notice” doctrine holds it is at the moment of termination, while the “Contractual Option” doctrine holds that the breach occurs on failure to provide reasonable notice or pay in lieu of notice. While the Mandatory Notice doctrine is considered trite law in other jurisdictions, Alberta has continued to develop case law supporting the Contractual Option. However, the Contractual Option doctrine suffers from several fatal flaws which highlight illogical theoretical and practical results flowing from its application. Therefore, this trend must reverse and Alberta must return to the Mandatory Notice doctrine.
{"title":"Defining Wrongful Dismissal: The Alberta Schism","authors":"Dennis D. Buchanan","doi":"10.29173/alr2567","DOIUrl":"https://doi.org/10.29173/alr2567","url":null,"abstract":"The law in Alberta regarding wrongful dismissal is at odds. The source of this schism is the moment of breach when an employee is dismissed with insufficient notice. The “Mandatory Notice” doctrine holds it is at the moment of termination, while the “Contractual Option” doctrine holds that the breach occurs on failure to provide reasonable notice or pay in lieu of notice. While the Mandatory Notice doctrine is considered trite law in other jurisdictions, Alberta has continued to develop case law supporting the Contractual Option. However, the Contractual Option doctrine suffers from several fatal flaws which highlight illogical theoretical and practical results flowing from its application. Therefore, this trend must reverse and Alberta must return to the Mandatory Notice doctrine.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49277643","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 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.
{"title":"Building Haystacks: Information Retention and Data Exploitation by the Canadian Security Intelligence Service","authors":"Leah West, Craig Forcese","doi":"10.29173/alr2573","DOIUrl":"https://doi.org/10.29173/alr2573","url":null,"abstract":"This 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.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43092422","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":"Justice Jean E. L. Côté, The Court of Appeal, and the Changing Nature of Contract Law","authors":"Q. D. R. Percy, Q. C. Douglas Stollery","doi":"10.29173/ALR2556","DOIUrl":"https://doi.org/10.29173/ALR2556","url":null,"abstract":" \u0000 ","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49517040","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}
Venue rules govern the location where legal proceedings are commenced and where applications and trials are heard. These rules can hamper litigants from participating in legal proceedings, such as when they require a litigant to travel a significant distance to take part in a hearing or trial. The expense and time required for such travel is prohibitive for some litigants. In this article, the author considers the extent to which the venue rules in Alberta hamper defendants from participating in three types of proceedings: mortgage default proceedings, residential eviction proceedings, and enforcement proceedings against a judgment debtor’s real property. The venue rules applicable to these proceedings raise serious access to justice issues because the defendants are commonly self-represented and are at risk of losing their homes. This article argues that Alberta venue rules are somewhat responsive to the plight of defendants, but they could be revised to ensure that self-represented litigants, especially those of limited means, can participate in legal proceedings regarding their homes. Changes to the substance of the rules must be matched with changes to the practices by which these rules are invoked, because these practices create additional hurdles for the defendants.
{"title":"Litigating on One's Doorstep: Access to Justice and the Question of Venue","authors":"Anna J. Lund","doi":"10.29173/ALR2544","DOIUrl":"https://doi.org/10.29173/ALR2544","url":null,"abstract":"Venue rules govern the location where legal proceedings are commenced and where applications and trials are heard. These rules can hamper litigants from participating in legal proceedings, such as when they require a litigant to travel a significant distance to take part in a hearing or trial. The expense and time required for such travel is prohibitive for some litigants. \u0000In this article, the author considers the extent to which the venue rules in Alberta hamper defendants from participating in three types of proceedings: mortgage default proceedings, residential eviction proceedings, and enforcement proceedings against a judgment debtor’s real property. The venue rules applicable to these proceedings raise serious access to justice issues because the defendants are commonly self-represented and are at risk of losing their homes. \u0000This article argues that Alberta venue rules are somewhat responsive to the plight of defendants, but they could be revised to ensure that self-represented litigants, especially those of limited means, can participate in legal proceedings regarding their homes. Changes to the substance of the rules must be matched with changes to the practices by which these rules are invoked, because these practices create additional hurdles for the defendants.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2019-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45693701","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}
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