scholarly journals THE DUNMORE DEPARTURE: SECTION 1 AND VULNERABLE GROUPS

2011 ◽  
Vol 13 (1 & 2) ◽  
pp. 2003
Author(s):  
Caroline Libman
Keyword(s):  
Supreme Court ◽  
Occupational Group ◽  
Agricultural Workers ◽  
Vulnerable Groups ◽  
Supreme Court Of Canada ◽  
Labour Relations ◽  
The Supreme Court ◽  
Complete Exclusion ◽  
The Government ◽  
First Time

In the recent decision Dunmore v. Ontario (A.G.),1 the Supreme Court of Canada held that the complete exclusion of agricultural workers from Ontario’s Labour Relations Act2 was a violation of section 2(d) of the Charter3 that could not be justified under section 1. Dunmore was a novel case; as Bastarache J. noted in the introduction to the majority decision, it represented “the first time” the Court had been called on to review “the total exclusion of an occupational group from a statutory labour relations regime, where that group is not employed by the government and has demonstrated no independent ability to organize.”

scholarly journals Feu la D.C.D. L'arrêt Miller et la peine de mort

2005 ◽  
Vol 18 (2-3) ◽  
pp. 567-576
Author(s):  
Henri Brun
Keyword(s):  
Supreme Court ◽  
Death Penalty ◽  
Supreme Court Of Canada ◽  
Bill Of Rights ◽  
Right To Life ◽  
The Supreme Court ◽  
The Subject ◽  
The Law ◽  
The Right ◽  
First Time

The Miller case, decided by the Supreme Court of Canada on October 5, 1976, puts the death penalty under the light of the Canadian Bill of Rights which formulates the right to life and the right to protection against cruel and unusual treatment or punishment. The following comment on the case relates to the interpretation given specific clauses of the Bill of Rights by the Court on that occasion. But it stresses especially the law that flows from the case about the compelling weight of the Bill of Rights over acts of Parliament enacted after the Bill came into force. In Miller, the Supreme Court expressed itself on the subject for the first time.

scholarly journals The evasion of Section 187(1)(c) of the Labour Relations Act: National Union of Metalworkers of South Africa v Aveng Trident Steel (a division of Aveng Africa Proprietary Ltd) (JA25/18) [2019] ZALAC 36; (2019) 40 ILJ 2024 (LAC); [2019] 9 BLLR 899 (LAC)

Obiter ◽  
2021 ◽  
Vol 41 (3) ◽  
pp. 642-650
Author(s):  
Rasheed Keith-Bandath
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
National Union ◽  
Labour Relations ◽  
Appeal Court ◽  
The Supreme Court ◽  
First Time ◽  
Court Of Appeal ◽  
Conditions Of Employment

Section 187(1)(c) of the Labour Relations Act 66 of 1995 (LRA), has over the years proven to be a controversial section. At the heart of the controversy is the question as to whether an employer may terminate employees’ contracts of employment based on operational requirements in circumstances where they refuse to accept changes to terms and conditions of employment. This question came before the courts on a number of occasions and answered in the affirmative by the Labour Appeal Court in Fry’s Metals (Pty) Ltd v National Union of Metalworkers of SA ((2003) 21 ILJ 133 (LAC)), and confirmed on appeal by the Supreme Court of Appeal in National Union of Metalworkers of SA v Fry’s Metals (Pty) Ltd (2005 (5) SA 433 (SCA)). However, the LRA has since been amended with the Labour Relations Amendment Act 6 of 2014 (LRAA). Whether an employer may, in light of the amendments, adopt this approach, was recently considered by the LabourAppeal Court in National Union of Metalworkers of South Africa v Aveng Trident Steel (a division of Aveng Africa Proprietary Ltd) ((JA25/18) [2019] ZALAC 36; (2019) 40 ILJ 2024 (LAC); [2019] 9 BLLR 899 (LAC) (13 June 2019) (Aveng case (LAC)). The judgment is noteworthy as it is the first time that the Labour Appeal Court (LAC) delivered judgment relating to section 187(1)(c) of the LRA post-amendment, thus providing a degree of judicial certainty on the interpretation to be accorded to the amended section.

scholarly journals Judicial Review, Judicial Revisionism and Judicial Responsibility

2019 ◽  
Vol 17 (1-2) ◽  
pp. 169-216
Author(s):  
Brian A. Langille
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Early Years ◽  
Supreme Court Of Canada ◽  
New Era ◽  
Second Best ◽  
Labour Relations ◽  
The Supreme Court ◽  
History Of ◽  
The Law

Judicial review of the decisions of labour relations boards has been a nagging problem for the Supreme Court of Canada for decades. The decision of the Court in Le Syndicat des Employés de Production du Québec et de L’Acadie v. Canada Labour Relations Board et al. provides an opportunity for and indeed provokes review of the work of the Court in dealing with this recurring problem. This essay begins by placing in perspective the concrete issue posed in the L’Acadie decision. But the particular facts of that case are used only as a vehicle to explore the nature of the problem of judicial review of labour decisionmakers and the history of the Court's handling of it. A fundamental thesis of this essay is that the Court's work can be best understood as comprising two distinct periods, the early years (pre-1979) and the new era (1979-1984?). This essay articulates the view that during the early years the Court developed a law of judicial review which was wholly inadequate both in functional and doctrinal terms. In the new era the Court simplified and reformed the law of judicial review of labour boards and labour arbitrators. It is only from the perspective of the Court's previous handling of the issue that the decision in L’Acadie can be truly understood. When so viewed the decision is perfectly inadequate. The case creates a new distinction based upon the old confusion of “jurisdiction”. This essay then develops the view that no theory of judicial review which revolves around the notion of “jurisdiction” can ever satisfactorily deal with the issues presented. In this respect the Court's own cases from the “new era” represent a much more sensible, if still a second best approach. Finally, suggestions for a legislative solution to the problem posed by L’Acadie are briefly explored.

scholarly journals Unique Public Duties of Care: Judicial Activism in the Supreme Court of Canada

2016 ◽  
Author(s):  
Bruce Feldthusen
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Judicial Activism ◽  
The Supreme Court ◽  
Open Discussion ◽  
The Government

Typically, government liability in tort depends on whether the government in question, through legislation, has consented to be held liable for its otherwise tortious acts. However, the Supreme Court of Canada has behaved in an activist manner by ignoring or eviscerating this legislation, altering and expanding what governments can be held liable for. This article explains how this process has occurred, providing five specific examples where unique public duties of care were created. An open discussion is needed about whether the Supreme Court ought to continue doing this and, if so, on what basis. This article starts that discussion.

Divorce in the Canadian Conflict of Laws: Two Recent Developments

1974 ◽  
Vol 11 ◽  
pp. 193-219
Author(s):  
Joost Blom
Keyword(s):  
Supreme Court ◽  
The Other ◽  
Supreme Court Of Canada ◽  
Conflict Of Laws ◽  
The Supreme Court ◽  
Recent Developments ◽  
Court Of First Instance ◽  
First Time

Two recent cases have added substantially to the Canadian jurisprudence on divorce in the conflict of laws. In one, discussed in Part I of this article, a court of first instance in Alberta initiated what is likely to be a far-reaching change in the rules for the recognition of foreign decrees. In the other, discussed in Part II, the Supreme Court of Canada gave its imprimatur for the first time to the controversial doctrine whereby someone who has obtained an invalid foreign decree may be precluded from denying its validity in a Canadian court. Although the two questions that these cases deal with are quite separate, their treatment by the Alberta Supreme Court and the Supreme Court of Canada shows a common tendency to resolve conflicts problems by rules that are general and flexible rather than precise and arbitrary.

scholarly journals The supreme court of Canada and the offender’s right to be transferred to serve his sentence in Canada: interpreting the international transfer of offenders act in light of Canada’s national and international human rights obligations

2013 ◽  
Vol 6 (2) ◽  
pp. 102-123
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Supreme Court ◽  
Emergency Preparedness ◽  
Public Safety ◽  
Federal Court ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Academic Publications ◽  
The Usa ◽  
The Government ◽  
The Right

ABSTRACT In September 2013 in the case of Divito v Canada (Public Safety and Emergency Preparedness) the Supreme Court of Canada dealt with the issue of whether section 6(1) of the Canadian Charter of Rights and Freedoms, the Charter, which grants Canadians the right to enter Canada was violated in a case where the Minister of Public Safety and Emergency Preparedness declined to consent to the transfer of a Canadian citizen to serve his sentence in Canada where the sentencing state had consented to the transfer. Another issue was whether sections 8(1) and 10(1)(a) and 10(2)(a) of the International Transfer of Offenders Act, which granted the Minister the discretion to consent or not to consent to the transfer, were contrary to section 6(1) of the Charter. In resolving the above issues, the Court referred to its earlier jurisprudence, academic publications and international law. Although the Court agreed with the government that the appeal was moot because the appellant had left the USA by the time it was heard, it held that it retained “a residual discretion to decide the merits of a moot appeal if the issues raised are of public importance” and that this case was one of public importance because “[t]he issues are likely to recur in the future and there is some uncertainty resulting from conflicting decisions in the Federal Court.” The purpose of this article is to highlight the interpretative tools invoked by the court and the implications of the judgement.

scholarly journals Conservation Controversy: Sparrow, Marshall, and the Mi’kmaq of Esgenoôpetitj

2011 ◽  
Vol 2 (4) ◽  
Author(s):  
Sarah J King
Keyword(s):  
Supreme Court ◽  
First Nations ◽  
First Nation ◽  
Scientific Management ◽  
Supreme Court Of Canada ◽  
Management Problem ◽  
Treaty Rights ◽  
The Supreme Court ◽  
Fisheries Policy ◽  
The Government

This paper explores the interplay between the Sparrow and Marshall decisions of the Supreme Court of Canada, and the sovereigntist and traditionalist convictions of the Mi’kmaq of the Esgenoôpetitj/Burnt Church First Nation, as expressed in the conservationist language of the Draft for the Esgenoopotitj First Nations (EFN) Fishery Act (Fisheries Policy). With the Supreme Court of Canada’s decision in Sparrow, conservation became an important justification available to the Canadian government to support its regulatory infringement on aboriginal and treaty rights. Ten years later, in Marshall, the Court recognized the treaty rights of the Mi’kmaq to a limited commercial fishery. The EFN Fishery Act, written to govern the controversial post-Marshall fishery in Esgenoôpetitj (also known as the Burnt Church First Nation) demonstrates that for the Mi’kmaq, scientific management, traditional knowledge, sovereignty and spirituality are understood in a holistic philosophy. The focus placed on conservation by the courts, and the management-focused approach taken by the government at Esgenoôpetitj have led to government policy which treats conservation simply as a resource access and management problem. Conservation, which the Court deems “uncontroversial” in Sparrow, is a politically loaded ideal in post-Marshall Burnt Church.

scholarly journals The Labour Relations and the Canadian Charter; the aftermath of the first decisions

2019 ◽  
Vol 19 (4) ◽  
pp. 895-907
Author(s):  
J. Maurice Cantin
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Labour Law ◽  
Canadian Charter ◽  
Labour Relations ◽  
The Supreme Court ◽  
The Right ◽  
The Impact

The Charter was introduced at a time when there was no real demand for its existence. In this article, the author reviews the origin of the Charter and examines the impact on labour law of the initial decisions rendered by our Courts. He examines more particularly some of the first Charter decisions emanating from the Supreme Court of Canada. He writes that the Charter may have a damaging effect on labour law especially in relation to the right to strike and to picket. He concludes that the Charter is ill-suited for use in the labour relations domain.

scholarly journals ELECTORAL DISTRICTS FORMATION AND REDISTRICTING EXPERIENCE OF CANADA REGIONS

2016 ◽  
Vol 1 (6) ◽  
pp. 0-0
Author(s):  
Игорь Ирхин ◽  
Igor Irkhin
Keyword(s):  
Supreme Court ◽  
Legal Regulation ◽  
Supreme Court Of Canada ◽  
Legal Analysis ◽  
Judicial Practice ◽  
National Representation ◽  
The Supreme Court ◽  
General Scientific ◽  
Historical Comparative ◽  
First Time

On the basis of the analysis of federal and regional level legislations, as well as judicial practice this article studies the issues of constitution-legal regulation of the order of formation and redistricting of electoral districts in the regions of the Canadian federation from a perspective of ensuring the implementation of the provisions of the Supreme Court of Canada to ensure an effective national representation (Reference re Prov. Electoral Boundaries (Sask.)). The article outlines proposals on mainstreaming the multifaceted approach of Canadian legislators and the expansion of the list of conditions that affect the ability to make decisions on formation and adjustment of electoral districts in the Russian Federation. The author uses general scientific methodology (analysis, synthesis, analogy, comparison), as well as other methods (historical, legal, historical, comparative law). For the first time the constitution-legal analysis of the Canadian Constitution provisions was carried out, as well as that of the acts of judicial practices and regional legislation regulating the procedure of the electoral districts’ formation and redistricting in the constituent entities of the Canadian federation from a perspective of ensuring the implementation of the provisions of the Supreme Court of Canada to ensure an effective national representation.

Constitutional Law in 1926-1927: The Constitutional Decisions of the Supreme Court of the United States in the October Term, 1926

1928 ◽  
Vol 22 (1) ◽  
pp. 70-107
Author(s):  
Robert E. Cushman
Keyword(s):  
United States ◽  
Supreme Court ◽  
Constitutional Law ◽  
The United States ◽  
The Supreme Court ◽  
Constitutional Decisions ◽  
The Government ◽  
Executive Officers ◽  
First Time ◽  
Preceding Term

The most conspicuous constitutional decision rendered by the Supreme Court during its 1926 term, or for many a preceding term, was in the case of Myers v. United States. It is here held that the power of the President to remove executive officers appointed by him with the consent of the Senate cannot be restricted by Congress. On the question of the removal of such officers the Constitution is entirely silent. It is an interesting commentary on the process by which we make constitutional law that a problem as important as this, a problem which was debated at length in 1789, upon which presidents have acted and congresses have passed statutes, should now, after 137 years, be definitely settled for the first time, and be settled now only because the late Mr. Myers saw fit to sue the government in the Court of Claims for his salary.The facts in the case are simple. In 1917 President Wilson appointed Myers to a first-class postmastership at Portland, Oregon, for a term of four years. In 1920, by direction of the President, he was removed from office. A statute passed in 1876 and still in force provides that “postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate and shall hold their offices for four years unless sooner removed or suspended according to law.” The removal of Myers was never referred to the Senate for its consent.

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