Common Law Provinces Research Articles

Differences in a Minor Archive: Feminist Activists and Scholars on Cohabitation

Abstract In an act of minor comparativism, this Article studies feminist writings on unmarried cohabitation from Canada’s jurisdictions of the common law and civil law. It examines activist texts and legal scholarship for and against regulating cohabitants. Reading the English-language literature from the common law provinces and the French-language literature from Quebec, it reports differences in substance, in emphasis, and in what is common sense. Differing approaches to ideas of freedom, autonomy, and choice run throughout. The Quebec literature shows disagreement between activists and scholars. Over time, that literature has moved towards the view in the common law literature. Lessons for comparatists relate to varieties of difference, the definition of legal sources, the asymmetrical role that legal traditions play in majority and minority contexts, and the limits of law in explaining differences. Given the unreliability of initial observations of difference and sameness, comparatists should read a broad range of sources with care and humility.

Contractual Capacity and the Conflict of Laws in Common-Law Jurisdictions (Part 2): Australasia, North America, Asia and Africa

This series of two articles provides a comparative overview of the position in common-law jurisdictions on the conflict of laws in respect of the contractual capacity of natural persons. The comparative study is undertaken in order to provide guidelines for the future development of South African private international law. Reference is primarily made to case law and the opinions of academic authors. The legal position in the law of the United Kingdom, as the mother jurisdiction in Europe, was investigated in part 1.1 Although Scotland is a mixed civil/common-law jurisdiction, the situation in that part of the United Kingdom was also discussed.Part 2 deals with the rules and principles of private international law in respect of contractual capacity in Australasia (Australia and New Zealand), North America (the common-law provinces of Canada and the United States of America), Asia (India, Malaysia and Singapore) and Africa (Ghana and Nigeria). This part also contains a comprehensive summary of the legal position in the common-law countries, followed by ideas for the reform of South African private international law in this regard.

Differences in a Minor Archive: Feminist Activists and Scholars on Cohabitation

In an act of minor comparativism, this article studies feminist writings on unmarried cohabitation from Canada’s jurisdictions of the common law and civil law. It examines activist texts and legal scholarship for and against regulating cohabitants. Reading the English-language literature from the common-law provinces and the French-language literature from Quebec, it reports differences in substance, in emphasis, and in what is common sense. Differing approaches to ideas of freedom, autonomy, and choice run throughout. The Quebec literature shows disagreement between activists and scholars. Over time, that literature has moved towards the view in the common-law literature. Lessons for comparatists relate to varieties of difference, the definition of legal sources, the asymmetrical role that legal traditions play in majority and minority contexts, and the limits of law in explaining differences. Given the unreliability of initial observations of difference and sameness, comparatists should read a broad range of sources with care and humility.

Report on Mental Disability in Canadian Law

This is the Canadian Report on the law regulating mental disability in Canadian law, prepared for the XIIIth Congress of the International Academy of Comparative Law held in Montréal in August 1990. The Report has been brought up to date to take account of subsequent changes in the law of the Canadian common law provinces and in the new Civil Code of Québec. In accordance with the instructions given to the national reporters in the above mentioned Congress, the Report first describes at length the law dealing with the civil effects of mental disability, such as the appointment and powers of guardians or curators to administer the property and take important personal decisions for persons with mental disabilities. The Report then discusses the law regulating the involuntary commitment of the mentally disabled to mental health institutions. The Report discerns common trends in the law of Québec and of the Canadian common law provinces. With regard to the appointment of guardians or curators the trend is to move away from judicial declarations of total incapacity, to encourage the self-reliance and cure of the disabled and to grant to the person in charge only those powers absolutely necessary for the protection of the disabled. With regard to the involuntary commitment to mental health institutions, the legislators have been faced with the problem of regulating a decision to deprive a person of her liberty on the basis of a judgment about her mental condition and her future needs, and not on the basis of the commission of a crime or the violation of any law. The legislative solution has been to clarify the standards and criteria which have to be considered before committing a person and to provide more procedural safeguards in the reaching of that decision as well as more opportunities to review and to appeal that decision.

CONTRACTUAL CAPACITY AND THE CONFLICT OF LAWS IN COMMON-LAW JURISDICTIONS (PART 1): THE UNITED KINGDOM

This series of two articles provides a comparative overview of the position in the common-law conflict of laws in respect of the contractual capacity of natural persons. The comparative study is undertaken in order to provide guidelines for the future development of South African private international law. Reference is primarily made to case law and the opinions of academic authors. The legal position in the law of the United Kingdom, as the mother jurisdiction in Europe, is investigated in part I. Although Scotland is a mixed civil/common-law jurisdiction, the situation in that part of the United Kingdom is also discussed.Part II will deal with the rules and principles of private international law in respect of contractual capacity in Australasia (Australia and New Zealand), North America (the common-law provinces of Canada and the United States of America), Asia (India, Malaysia and Singapore) and Africa (Ghana and Nigeria). Part II also contains a comprehensive summary of the legal position in the common-law countries, followed by ideas for the reform of South African private international law in this regard.

The past, present and future of law reform in Canada

ABSTRACTThe story of institutional law reform in Canada has been described by one veteran as ‘somewhat troubling.’ It is a story not without significant successes: In Québec civil law, the codifications were remarkable achievements which realised sweeping and highly-esteemed reforms. Among Canadian common law provinces, Ontario founded the Commonwealth’s first law reform commission in 1964, and as early as 1967 Alberta innovated the now internationally-influential joint venture design of its commission. Further, Canada’s original national commission was notable for its ambitious pursuit of social issues, and the second national commission challenged conventional legal paradigms at unparalleled depth. Across the country, many law commissions were established. Yet, what is ‘troubling’ is how many, including long-established and prominent commissions, were since closed or constrained, impeded from accomplishing what they might have. Meanwhile, in Québec civil law, the codifiers’ repeated calls for a permanent commission have gone unheeded. What does the future hold for institutional law reform in Canada? In Québec civil law, there are some signs of movement towards reform continuity. An important question will be whether processes of continuous incremental reform can be developed and managed to alleviate reliance on overwhelming legal overhauls. Elsewhere in Canada, a few Canadian provinces that shuttered commissions have since re-established them in altered forms. The common themes of austerity, ideology, and alleged redundancy in the downfall of past Canadian commissions remain an ever present concern to the survivors, as they simultaneously confront newly emerging challenges. Time will tell whether, because of their experience in reforming themselves in response to their troubling story to date, Canada’s law commissions may be best-positioned to meet institutional law reform’s challenges of the future.

Six of One, Half a Dozen of the Other? Jurisdiction in Common Law Canada

This short article considers the central differences in the law on taking jurisdiction in civil and commercial disputes between those common law provinces that have implemented a statute on jurisdiction (British Columbia, Nova Scotia and Saskatchewan) and those common law provinces that rely on the common law (Alberta, Ontario and others). It focuses on the distinction between presence and ordinary residence, the role and analysis of presumptive connecting factors for taking jurisdiction, and issues related to immovable property.

Choice of Forum Clauses in International Contracts

The autonomy of contracting parties to select the court in which any disputes between them will take place is typically justified on the basis of the need for certainty and predictability in international commerce. The parties know in advance where litigation will take place, thereby eliminating later litigation over the proper forum and conserving valuable judicial resources for the determination of the merits. Free choice also maximizes flexibility, enabling parties to shop for a litigation venue appropriate to their particular circumstances. This article seeks to shed light on the issue by surveying the recent treatment of exclusive jurisdiction clauses by the courts in the common law provinces in Canada, and by selected courts elsewhere in the common law world.

Revised Article 9 of the Uniform Commercial Code: Implications for the Canadian Personal Property Security Acts

The Personal Property, Security, Acts (PPSAs) in effect in the Canadian common law provinces have their intellectual roots in the 1972 version of Article 9 (Secured Trans- actions) of the Uniform Commercial Code in the United States. Article 9 has recently, undergone a complete revision. This article offers a comparative overview of the new regime. The authors begin by identifying those features of the new Article 9 for which analogous provision already is made in all or most of the PPSAs. They then analyze certain other new features, which they do not believe should be exported to a Canadian context. The most notable of these are the designation of the debtor's law as the universal choice of law rule for perfection (but not priority) of all security, interests, and the introduction of special perfection and priority rules for security interests in deposit accounts and sales of payment intangibles. The authors then review a miscellany of other provisions of the new Article 9 which they believe do merit consideration for adaptation into the PPSAs, including an explicit provision for cross-collateralization in purchase money inventory financing. In their conclusion, the authors offer some more general observations on the overall style and policy implications of the new Article 9. They conclude that the increased emphasis on more detailed and specialized rules may paradoxically lead to greater uncertainty because of the increased complexity. More fundamentally, it puts into question the basic premise of both Article 9 and the PPSAs that the functional identity of all secured transactions demands an essentially unitary regulatory framework.

The Labour Injunction in Canada

This is an outline of the law of the injunction as used in labour disputes in the common-law provinces, with particular reference to recent developments in the law of picketing. The Author has prepared this essay for an audience not trained in law.

Contracting-out at Arbitration

A comparative study of arbitral decisions rendered in the United States, the Canadian Common Law Provinces and Quebec over grievances arising in the contest of collective agreements that contain no specific provision on the subject out of Management's action of arranging with an outside firm to have it perform work hitherto done by members of the bargaining unit. The possible effect of new section 10a of the Quebec Labour Relations Act on this practice of contracting out will also be considered.

Substantive Unfairness of Pre-Dispute Arbitration Clauses in Consumer Contracts: The Argument for the Unconscionability Doctrine

Development of the doctrine of unconscionability in Canadian common law provinces would serve as an effective mechanism to render pre-dispute arbitration clauses unenforceable in the context of consumer contracts. While laws which facilitate the commercial arbitration process are generally seen as a favourable development, the negative backlash to arbitration occurs because it is often used a means to gain an advantage against unsuspecting consumers. The author asserts that the law should facilitate the use of arbitration in the commercial context between parties of roughly equal bargaining power, while simultaneously curbing enforceability of mandatory pre-dispute arbitration clauses in consumer contracts. In the past three decades, provincial legislators have devised statutes in order to facilitate the process of commercial arbitration. During the same time period, legislators have also created numerous mechanisms to protect the substantive rights of consumers, with notable examples being the development of laws enabling class action proceedings as well as consumer protection laws. When these policy objectives appear to conflict, it is up to the courts to strike the appropriate balance in order to ensure the intent of the legislature is carried out. The current balance struck by the Supreme Court of Canada patently places too much emphasis on the promotion of arbitration while ignoring the genuine desire of legislators to protect the interests of consumers. The purpose of this paper is to explore and critique the law in Canadian common law provinces regarding unconscionability in the context of pre-dispute arbitration clauses in consumer contracts. The author reviews the theoretical and practical underpinnings as to why mandatory pre-dispute arbitration clauses unfairly disadvantage consumers, while at the same time offering a doctrinal analysis of how a claim of unconscionability could be successfully argued. As unconscionability is a more developed doctrine in the United States, a brief comparative analysis is undertaken in order to highlight the potential lessons for Canadian jurists. In addition, as this area of law is not currently settled in Canada, the author aims to make policy-based arguments as to why a reassessment of the current jurisprudence is necessary in order to influence future developments in the common law.

Assisted Human Reproduction in Common Law Canada after the Supreme Court of Canada Reference: Moving beyond Regulation by Colleges of Physicians and Surgeons

The Supreme Court of Canada’s opinion in Reference re Assisted Human Reproduction Act effectively decided that it was for provinces and territories to regulate most aspects of assisted human reproduction. Since the 2010 ruling, only Québec has passed legislation to govern the field. Although two colleges of physicians and surgeons have adopted medical practice guidelines, approximately forty-two fertility clinics in common law Canada lack detailed regulatory oversight. This article argues that such lack of specific regulation of assisted human reproduction in common law provinces is a waste of the public money and effort invested since the 1980s. Further, physician colleges are ill positioned to be the sole provincial regulator of practices and procedures conducted primarily on women’s bodies that aim to bring new humans to life. Provincial legislatures in common law Canada should urgently adopt the values expressed both by the Royal Commission on New Reproductive Technologies and by the Canadian Parliament and use similarly open and transparent processes. They ought to collaborate to adopt a regulatory mechanism (similar to that pioneered by the Uniform Conference of Canada or adopted in securities regulation) to govern assisted human reproduction in common law Canada primarily in the interests of women and the children to be created.

AUCTIONEERS, FENCE-VIEWERS, POPES – AND JUDGES

AUCTIONEERS, FENCE-VIEWERS, POPES – AND JUDGES

Report on Relief Under Legally Defective Contracts: The Uniform Illegal Contracts Act

This report concerns issues associated with the implementation in British Columbia of the Uniform Illegal Contracts Act recommended by the Uniform Law Conference of Canada for enactment in common law provinces and territories. The Uniform Act would empower superior courts to mitigate harsh and unjust results sometimes produced by the common law rules on illegality in contract. The Uniform Act cuts through the inconsistencies and technicality of the common law regarding illegal contracts and confers clear discretionary powers on the court to arrive at a just solution where difficulties arise from contractual arrangements that somehow contravene legislation or public policy. This report recommends some modifications to the Uniform Act to adapt it to the legal landscape of British Columbia.

STEP Canada holds inaugral symposium 'trust law reform in Canada'

STEP Canada held its inaugural Symposium on 5 and 6 November 2007 in Toronto on the subject of trust law reform in Canada, co-chaired by Margaret O'Sullivan and Kathleen Cunningham, both senior STEP Canada executive members. The Symposium was extremely well attended by representatives across the country, including participants from every major trust company at the senior executive level, senior trust and estate practitioners, academia, government, law reform commissions and the judiciary. A primary theme of the Symposium was that trust law reform in Canada is long overdue and modern legislation is needed in Canada to enable sophisticated planning reflecting modern societal needs and an increasingly complex investment market. The existing patchwork of trust law in Canada's common-law provinces primarily dates back to the late 19th Century. It is foreseen that new legislation should enable trusts to better reflect contemporary social needs and the increasing use of the trust given the demographics of an aging population. There have been only modest amendments to trust legislation in certain of the Canadian provinces, such as the ‘prudent investor’ rule with regard to trustee investment.

Quebec Labour Code and the Status of Unions and Collective Agreements

The author in this article examines the status of unions and collective agreements under the new Québec Labour Code. He first presents a brief historical review of the laws and decisions concerning this matter not only in Québec but also in the common law provinces. He goes on stating the conditions prevailing in Québec as well as in the other provinces up to the enactment of the Code. He finally analyses the new provisions of the Labour Code governing the status of unions and collective agreements covered by it.

'A Stranger in the Promised Land?' The Non-Resident Accident Victim and the Quebec No-Fault Plan

All the Canadian provinces and territories have now adopted some form of no-fault insurance for road accidents. But the plans in effect in the common law provinces are intended only to supplement tort recovery, not to replace it. The no-fault insured's traditional tort rights are not affected except to the extent necessary to prevent double recovery and motorists must continue to carry traditional liability insurance against the risk of civil suit. In contrast to these so-called add-on plans, the Automobile Insurance Act of Quebec implements a pure no-fault system: Under the Act -- which has been in effect for nearly a decade now -- the road accident victim's right to sue for bodily injury is abolished totally. Substituted is a comprehensive no-fault compensation plan paid for primarily by Quebec motorists and administered by a governmental authority called la Regie de l'assurance automobile du Quebec, (hereafter la Regie).

Recent Canadian legislation on arbitration

Canada finally has come into the 20th century, and may be crowding the 21st. International commercial arbitration has arrived. Until this year, arbitration in common law provinces was regulated by legislation based on the English Arbitration Act of 1889 and, in Quebec, although a new Code of Civil Procedure was enacted in 1966, its provisions on arbitration left much to be desired. In the common law provinces, the courts continued to exercise their overriding supervisory jurisdiction by both the stated case procedure and the readiness of judges to intervene with respect to errors of law. As for Quebec, it was not until 1983 that the controversy over the validity of the agreement to arbitrate under Quebec law was finally resolved by the Supreme Court of Canada.1 Of the significant industrialised countries, Canada with China, has been alone in failing to adhere to the 1958 United Nations Convention on the...

Using a Law Library: A Guide for Students and Lawyers in the Common Law Provinces of Canada. By Margaret A. Banks. 3rd ed. Toronto: Carswell Co. Ltd., 1980. Pp. ix, 212. Can. $24.00 (bound).

Using a Law Library: A Guide for Students and Lawyers in the Common Law Provinces of Canada. By Margaret A. Banks. 3rd ed. Toronto: Carswell Co. Ltd., 1980. Pp. ix, 212. Can. $24.00 (bound).