scholarly journals Be careful what you promise: Proprietary estoppel in Cowper-Smith v Morgan

2018 ◽  
Author(s):  
Jason Chin
Keyword(s):  
British Columbia ◽  
Property Rights ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Canadian Experience ◽  
The Supreme Court ◽  
The Law ◽  
Court Of Appeal

Proprietary estoppel provides one of equity’s most powerful remedies. Estoppel is an equitable doctrine which arises when one party acts on the reliance of the promise of another. The promise and corresponding reliance creates a quasi-contract with reliance acting as an alternative to the consideration usually required in contracts. Proprietary estoppel is distinct from other equitable estoppels in that a proprietary estoppel can act as a ‘sword’ and form the basis of a cause of action. If all of the parts of proprietary estoppel are made out, a court can modify or create property rights to satisfy the equity.With regard to the Canadian experience, the Court of Appeal for Ontario recently noted that proprietary estoppel has received “somewhat uneven treatment in Canada.” It is within this context that the Court of Appeal for British Columbia split on the proper scope for the Supreme Court of Canada. In Cowper-Smith v Morgan, the Supreme Court of Canada has both clarified the test for — and arguably expanded the scope of — proprietary estoppel in the context of promises exchanged between children over their mother’s care during her lifetime. The fact that a party lacks an interest in the disputed property at the time of the promise does not negate the obligation of fulfilling the promise. Instead, when the party responsible for the expectation has or acquires sufficient interest in the property, proprietary estoppel will attach to that interest and protect the equity. This article will discuss the law of proprietary estoppel in other jurisdictions and how the Supreme Court of Canada has infused this remedy with greater flexibility to satisfy the equity.

scholarly journals Alberta's Court of Next-to-Last Resort: Appeals from the Alberta Court of Appeal to the Supreme Court of Canada, 1970-1990

1969 ◽  
pp. 861
Author(s):  
Peter McCormick
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Success Rates ◽  
The Supreme Court ◽  
The Law ◽  
Statistical Survey ◽  
Court Of Appeal

This paper reports the results of a statistical survey of the success rates of appeals to the Supreme Court of Canada. Appeals from all provinces were examined, but in his analysis Professor McCormick focuses on the Alberta Court of Appeal. The variables he discusses include the geographic and political composition of the Supreme Court, the mix of cases from different areas of the law, the length of experience of Court of Appeal judges, and the presence or absence of dissenting opinions.

scholarly journals Compensation and the Scope of Equity's Remedial and Restitutionary Generosity

1969 ◽  
Vol 37 (1) ◽  
pp. 114
Author(s):  
Paul M. Perell
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Fiduciary Duty ◽  
Supreme Court Of Canada ◽  
Civil Case ◽  
The Supreme Court ◽  
Court Of Appeal

Canson Enterprises Ltd. v. Boughton is a case about equity’s restitutionary remedies, including compensation for breach of fiduciary duty and compensation under the doctrines of knowing assistance and knowing receipt. It was an unusual civil case because it had two distinct phases that yielded two trial level judgments, two judgments of the British Columbia Court of Appeal, and an important judgment form the Supreme Court of Canada. The Canson case was extraordinary because there were significant changes from phase one to phase two in the factual foundation of the case, and these changes provided a novel opportunity to study the nature of equitable remedies and to develop instructive comparisons and contrasts. This article uses the Canson case as a vehicle to explore equitable compensation and the scope of equity’s remedial and restitutionary generosity.

Throughput Legitimacy and the Duty to Consult: The Limits of the Law to Produce Quality Interactions in British Columbia's EA Process

2020 ◽  
Vol 53 (3) ◽  
pp. 577-595
Author(s):  
Minh Do
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Indigenous Peoples ◽  
Good Faith ◽  
Supreme Court Of Canada ◽  
Aboriginal Rights ◽  
Environmental Assessments ◽  
The Supreme Court ◽  
The Law

AbstractThe duty to consult mandates that the Crown must consult affected Indigenous parties when Crown action may negatively impact Aboriginal rights or title claims. The Supreme Court of Canada (SCC) has emphasized that the duty should be characterized by honourable dealings and good faith negotiations. This article argues that the concept of throughput legitimacy can help evaluate the Crown's conduct in consultation. By analyzing 131 British Columbia Environmental Assessments (BC EAs), this article finds that the Crown struggles to uphold throughput legitimacy from the perspective of Indigenous peoples, particularly in the areas of transparency, accountability and effectiveness.

scholarly journals The Tortious Liability of Directors and Officers to Third Parties in Common Law Canada

2017 ◽  
Author(s):  
Shannon O'Byrne ◽  
Yemi Philip ◽  
Katherine Fraser
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Tort Law ◽  
Third Parties ◽  
Corporate Law ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
The Law ◽  
Directors And Officers ◽  
Court Of Appeal

The law regarding the tortious liability of corporate directors and officers to third parties remains conflicted. One line of authority, adopted in Alberta, provides that liability is rare in the context of torts committed in a corporate capacity, and it largely closes the door on liability for ordinary negligence. A competing line of authority, however, contends that tortious liability is common. Signalling a different approach, Justice Slatter of the Alberta Court of Appeal provides a policy-based stance that accounts for the importance of both tort law and corporate law principles to the question of liability for ordinary negligence. Beyond offering balance, Justice Slatter’s approach has the benefit of aligning with pronouncements from the Supreme Court of Canada regarding directors’ and officers’ liability in negligence to third parties. This article outlines the current authorities in the area, concluding that Justice Slatter’s judgment provides a clear and principled way forward.

scholarly journals Consultation with Aboriginal Peoples: Impacts on the Petroleum Industry

2020 ◽  
Author(s):  
Tony Fogarassy ◽  
KayLynn Litton
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Petroleum Industry ◽  
The Other ◽  
Aboriginal Peoples ◽  
Supreme Court Of Canada ◽  
Company Limited ◽  
The Supreme Court ◽  
The One ◽  
Court Of Appeal

The duties of consultation and accommodation with Aboriginal peoples affected by resource development were, until 2002, primarily the responsibility of the Crown. The British Columbia Court of Appeal, in two related decisions involving the Haida Nation on the one hand and the Crown and Weyerhaeuser Company Limited on the other, has placed these duties squarely on to the shoulders of industry. Where the Crown fails to discharge its duties of consultation and accommodation, resource tenures such as permits, licenses or leases may be invalid and activity conducted pursuant to the tenures may result in damages awarded against industry in favour of affected Aboriginal peoples. Appeals from both decisions will be heard by the Supreme Court of Canada. In the meantime, the law on industry’s duty to consult and to accommodate Aboriginal peoples continues to lack certainty.

Transforming the Law on Psychiatric Lesions

2021 ◽  
Vol 2021 (2) ◽  
pp. 253-271
Author(s):  
Emile Zitzke
Keyword(s):  
Supreme Court ◽  
Expert Witnesses ◽  
The Supreme Court ◽  
Psychological Harm ◽  
The Law ◽  
Constitutional Right ◽  
Law Of Delict ◽  
Court Of Appeal ◽  
Made In

In this article, I trace the development in the law of delict of recognising general damages claims on account of psychiatric lesions with the aim of making suggestions on how to transform it. Using the tragic case of Michael Komape as a springboard for the discussion, I argue that even though the Supreme Court of Appeal has recently brought clarity on the law on psychiatric lesions, more transformative work still needs to be done. More specifically, this article contends that the constitutional right to bodily and psychological integrity might require us to rethink the high evidentiary threshold that courts have set for proving the element of harm in cases related to psychiatric lesions. I argue that this can be done in at least three ways: First, by very cautiously bringing about a development that would involve protecting victims of psychological harm whose expert witnesses are shown to be inadequate despite all other facts indicating the existence of a psychiatric lesion. Secondly, by lowering the requirement of “recognised psychiatric lesion” to “grievous mental injury”, in line with similar arguments made in England. Thirdly, and most controversially, by acknowledging that perhaps the time has come for our law to recognise claims for so-called “grief in the air”.

scholarly journals The Law Regarding Pension Interest in South Africa has been settled! Or has it? With Reference to Ndaba v Ndaba (600/2015) [2016] ZASCA 162

2017 ◽  
Vol 20 ◽  
pp. 1
Author(s):  
Motseotsile Clement Marumoagae
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
High Court ◽  
The Supreme Court ◽  
Golden Opportunity ◽  
The Law ◽  
Court Of Appeal

This article reflects on the law relating to pension interest in South Africa. In particular, it assesses whether the Supreme Court of Appeal in Ndaba v Ndaba had adequately clarified how this area of law should be understood. In light of the inconsistent approaches from various divisions of the High Court, it has not always been clear how the courts should interpret the law relating to pension interest in South Africa. In this paper, aspects of this area of law which have been clarified by the Supreme Court of Appeal are highlighted. This paper further demonstrates aspects of this area of law which the Supreme Court of Appeal did not settle and would potentially be subject to future litigation. This paper is based on the premise that while Ndaba v Ndaba is welcomed, the Supreme Court of Appeal nonetheless, missed a golden opportunity to authoritatively provide a basis upon which the law relating to pension interest in South Africa should be understood. 

scholarly journals A Choice among Values: Theoretical and Historical Perspectives on the Defence of Necessity

1969 ◽  
pp. 848 ◽  
Author(s):  
Benjamin L. Berger
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Historical Perspectives ◽  
Theoretical Approaches ◽  
A Value ◽  
Canadian Law ◽  
The Supreme Court ◽  
History Of ◽  
The Law ◽  
The Way

The author explores various theoretical approaches to the defence of necessity, rejecting both excusatory conceptions of the defence and those based on the notion of moral involuntariness. Rather, the author argues that necessity is properly understood as a justificatory defence based on a lack of moral blameworthiness. After extensively surveying the history of the defence in Canadian law, the author critiques the way in which the Supreme Court of Canada has restricted the defence. He contrasts the current Canadian approach with the treatment of the defence in other jurisdictions and concludes that Canadian law would be served best by a robust defence of necessity, which would acknowledge that, in some circumstances, pursuit of a value of greater worth than the value of adherence to the law can be justified.

The Origins of the Re Hastings-Bass Rule

2015 ◽  
Author(s):  
Michael Ashdown
Keyword(s):  
Supreme Court ◽  
Present State ◽  
Practical Importance ◽  
Future Application ◽  
Precise Nature ◽  
The Supreme Court ◽  
The Future ◽  
The Law ◽  
The Many ◽  
Court Of Appeal

The present state of the law must now be treated as authoritatively set out by Lord Walker in Pitt v Holt, and to a lesser but still important extent by the earlier judgment of Lloyd LJ in the Court of Appeal in the same case. This chapter, however, is concerned with the earlier development of the Re Hastings-Bass doctrine. Its purpose is to establish the doctrinal legitimacy of the rule in Re Hastings-Bass as an aspect of the English law of trusts. Whilst this is primarily of academic and theoretical concern, in view of the Supreme Court’s reformulation of the law into its present shape, it is also of practical importance. In particular, the future application of the doctrine to novel situations will depend upon understanding the precise nature and scope of the rule propounded by the Supreme Court. That decision cannot simply be divorced from the many decided cases which preceded it, and from its place in the wider compass of the law of trusts.

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