scholarly journals Restitution of Unlawfully Levied Taxes: Survey and Comparative Analysis of Developments in Canada, Australia, and England

1969 ◽  
pp. 960 ◽  
Author(s):  
Frédéric Bachand
Keyword(s):  
Comparative Analysis ◽  
Supreme Court ◽  
Common Law ◽  
General Rule ◽  
Supreme Court Of Canada ◽  
Public Authorities ◽  
The Past ◽  
The Supreme Court ◽  
The Common

The common law traditionally has not been sympathetic to taxpayers wishing to recover unlawfully levied taxes from public authorities. Because a mistake of law did not, as a general rule and in itself, give rise to a right to restitution, and because courts refused to find that the mere fact that monies had been demanded by public authorities amounted to compulsion, taxpayers were often left without a remedy. Fortunately, important judicial developments have occurred in Canada, Australia, and England in the past decade. The demise of the infamous mistake of law rule and the recognition in England of the Woolwich principle have facilitated the recovery of unlawfully levied taxes. Yet, these developments have revealed profound differences as to which defences should be made available to public authorities. The "fiscal chaos" and "passing on" defences proposed by three Justices of the Supreme Court of Canada in the Air Canada case have not been well received in Australia and England. This article traces the evolution of the traditional common law approach to the problem of unlawfully levied taxes, offers a survey of the judicial developments in this area since the past decade and proposes a comparative analysis of the approaches adopted in each jurisdiction.

Revisiting pure economic loss: lessons to be learnt from the Supreme Court of Canada?

Legal Studies ◽  
2005 ◽  
Vol 25 (1) ◽  
pp. 49-71 ◽  
Author(s):  
Paula Giliker
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Economic Loss ◽  
Supreme Court Of Canada ◽  
Two Stage ◽  
Pure Economic Loss ◽  
The Supreme Court ◽  
Recent Developments ◽  
The Common ◽  
Difficult Area

This article examines the treatment of pure economic loss claims in England and Canada. The two jurisdictions have much in common. Starting from the same case sources, the common law of each system has struggled to deal with claims for negligently-incurred pure economic loss. Yet, the systems diverged in the 1990s when the Canadian Supreme Court refused to follow the lead of Murphy v Brentwood DC and reiterated its adherence to the Anns two-stage test. It is submitted that, in view of recent developments which suggest the gradual convergence of the two systems, English law should carefully examine the categorisation approach adopted by the Canadian courts. The current English position is far from clear, and the Canadian model is capable of bringing transparency and greater clarity to this difficult area of law.

scholarly journals The Principle of Good Faith in Contractual Performance: A Scottish-Canadian Comparison

2019 ◽  
Vol 23 (3) ◽  
pp. 301-331
Author(s):  
Hector MacQueen ◽  
Shannon O'Byrne
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Good Faith ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
The Subject ◽  
The Common

In 2014 the Supreme Court of Canada in Bhasin v Hrynew formally but cautiously acknowledged good faith as a general organising principle of contractual performance at common law and that the principle largely manifests by way of implied terms and through the new duty of honesty. Rejecting English recalcitrance on the subject, the SCC concluded that recognising a good faith principle makes the common law less unsettled and piecemeal, more coherent and just. The article suggests that the limitations placed on the good faith principle by the SCC make its potential adoption in Scotland offer more opportunity than risk, especially in relation to the exercise of contractual discretions and contractual remedies.

scholarly journals A Triumph of Liberalism: The Supreme Court of Canada and the Exclusion of Evidence

1969 ◽  
pp. 299 ◽  
Author(s):  
Julianne Parfett
Keyword(s):  
Criminal Justice ◽  
Supreme Court ◽  
Legal System ◽  
Justice System ◽  
Common Law ◽  
Supreme Court Of Canada ◽  
Causal Connection ◽  
The Supreme Court ◽  
The Common ◽  
The Cost

The common law has historically defined self- incrimination narrowly. Using Packer's models of the criminal justice system as a framework, the article examines the Supreme Court of Canada's interpretations of s. 24(2) of the Charter. The Court has expanded the definitions of both self incrimination and remoteness. The author argues that s. 24(2) has ceased to be a remedy requiring the balancing of interests and has become a quasi- automatic rule of exclusion, which promotes individual rights at the cost of victim's rights. Further, in the Court's zeal to protect the integrity of the system, there is no allowance made for the seriousness of the breach, the consequences of the exclusion, or the causal connection between the breach and any evidence obtained. The author argues that this has resulted in a justice system more concerned with police behaviour than with the pursuit of truth. Instead, either the exclusionary rule must be used to foster a balance of individual and communitarian rights, or other more imaginative remedies should be crafted from s. 24(2) to protect the integrity of the legal system.

scholarly journals Equitable Compensation for Breach by Fact-Based Fiduciaries: Tentative Thoughts on Clarifying Remedial Goals

1969 ◽  
Vol 37 (1) ◽  
pp. 95
Author(s):  
Jeff Berryman
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Punitive Damages ◽  
Supreme Court Of Canada ◽  
Breach Of Contract ◽  
Distinctive Features ◽  
The Supreme Court ◽  
The Common

The Supreme Court of Canada has purported to distinguish the approach to quantifying equitable compensation from that applied to the quantification of damages in common law for breach of contract or tort. In particular, the rules associated with causation and remoteness and the application of evidential presumptions has dominated this discourse. In this comment the author suggests that these distinctions are adding to conceptual muddling of the fiduciary relationship and that it would be better for the court to embrace totally the sophisticated analytical rules of the common law rather than recreate new rules in equity. Further, he argues that the distinctive features of the fiduciary relationship would be better recognized through the application of punitive damages rather than the distortion of compensation principles.

Bhasin v Hrynew - The New Duty of Good Faith in Contract

1969 ◽  
Author(s):  
Brittany Scott
Keyword(s):  
Common Law ◽  
Good Faith ◽  
Supreme Court Of Canada ◽  
The Past ◽  
Legal Traditions ◽  
The United Kingdom ◽  
The Supreme Court ◽  
The Common ◽  
The Law ◽  
Contractual Obligations

Over the past number of years, the law surrounding the requirement to operate in good faith in conducting contractual obligations has been a developing principle in common law countries from Australia, to the United Kingdom to Canada. In Canada, this principle has developed separately within the civil and common law legal traditions respectively. While the Quebec Civil Code has historically provided for an expectation of parties to a contract to operate in good faith, the common law in Canada has not been as clear.  Prior to 2014, the Canadian common law duty to negotiate in good faith was an unsettled body of law, recognized in certain areas, but not across the discipline as a whole. It has only been since the Supreme Court of Canada decision in Bhasin v. Hrynew that this duty to negotiate in good faith has been outlined as a coherent set of guiding principles. Parties to a contract are now both bound by a general organizing principle of good faith in contracts and are expected to act honestly in the performance of their contractual obligations. While new to the Canadian common law, numerous cases have been quick to test the court’s interpretation of this change in scope to the law of good faith. As Canadian common law jurisprudence moves forward, this principle will continue to expand and develop.

Horizontal Effect and Caboose Constitutionalism

2018 ◽  
Author(s):  
Jud Mathews
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Protective Action ◽  
Private Law ◽  
Supreme Court Of Canada ◽  
Private Party ◽  
The Supreme Court ◽  
The Common

This chapter picks up the story where the previous chapter left off, showing how the Supreme Court of Canada initially made a show of rejecting the application of the Charter of Rights and Freedoms to private law relationships in Dolphin Delivery. But at the same time, the Court left itself room to interpret the common law to comport with Charter values. In the years since, litigants have pressed the Court to use this power to meet their normative demands, and the Court has done so on many occasions. At the same time, the Court has showed solicitude for legislative initiatives, often using the Charter to shape private-party obligations to one other only after the legislature has taken some rights-protective action in that area, in a strategy that might be called caboose constitutionalism.

THE LIMITS OF FREEDOM OF INFORMATION AND HUMAN RIGHTS, AND THE POSSIBILITIES OF THE COMMON LAW

2014 ◽  
Vol 73 (3) ◽  
pp. 471-474
Author(s):  
Kirsty Hughes
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Common Law ◽  
Veto Power ◽  
Freedom Of Information ◽  
Freedom Of Information Act ◽  
Public Authorities ◽  
The Supreme Court ◽  
Charity Commission ◽  
The Common

ACCOUNTABILITY, transparency, and freedom of information are essential to democracy. These values are not absolute; hence the law is used to demarcate how much transparency, access, and freedom are allowed. The Freedom of Information Act 2000 (FOIA) provides a mechanism for accessing information held by public authorities. It has been heavily criticised for not providing sufficient access due to its wide exemptions and section 53 veto power. Nevertheless, it was thought that, where citizens seek information, they should use FOIA. In Kennedy v The Charity Commission [2014] UKSC 20, [2014] 2 W.L.R. 808, the Supreme Court found that this may not always be the appropriate method. The Supreme Court held, by a majority of 5:2, that Kennedy should not have pursued his claim under FOIA; instead he should have sought disclosure via the Charities Act 1993 (“Charities Act”) and judicial review. The majority took this opportunity to criticise the overuse of human rights, and to emphasise the significance of the common law and its role in ensuring accountability and transparency.

scholarly journals Self-Defence and Consent: The Use of Common Law Developments in Canadian Criminal Code Analysis

1994 ◽  
Vol 32 ◽  
pp. 484
Author(s):  
M. Anne Stalker
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Criminal Code ◽  
Supreme Court Of Canada ◽  
Code Analysis ◽  
The Supreme Court ◽  
Canadian Criminal Code ◽  
The Common ◽  
Court Of Appeal ◽  
Self Defence

The author examines the interaction between the Criminal Code and the common law in relation to two areas of law recently handled by both the Alberta Court of Appeal and the Supreme Court of Canada

scholarly journals Toward a Bijural Interpretation of the Principle of Respect in Aboriginal Law

2016 ◽  
Vol 61 (4) ◽  
pp. 939-977
Author(s):  
Kirsten Manley-Casimir
Keyword(s):  
Supreme Court ◽  
Indigenous Peoples ◽  
Cultural Difference ◽  
Common Law ◽  
Supreme Court Of Canada ◽  
Legal Traditions ◽  
The Supreme Court ◽  
Legal Space ◽  
The Common ◽  
Aboriginal Law

Aboriginal law disputes are disputes that arise in the spaces between Indigenous and non-Indigenous societies. To date, the Supreme Court of Canada has resolved Aboriginal law disputes under section 35 by relying heavily on the common law to the exclusion of Indigenous legal traditions and principles. In this article, the author argues that applying a bijural interpretation of the principle of respect provides a promising pathway forward in resolving Aboriginal law disputes in a way that supports the grand purpose of section 35 of the Constitution Act, 1982—reconciliation. The author discusses the principle of respect by considering both non-Indigenous and Indigenous theories to propose a robust conception of respect to guide Aboriginal law jurisprudence. She then suggests three ways to implement the principle of respect in the intercultural relationship: (1) making interdependence and relationships primary; (2) rejecting colonial attitudes and stereotypes of Indigenous peoples; and (3) creating political and legal space for the expression and flourishing of cultural difference.

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