scholarly journals Réforme des tribunaux administratifs et contrôle judiciaire: les inconsistances et les hésitations du Rapport Ouellette

2005 ◽  
Vol 29 (3) ◽  
pp. 761-773
Author(s):  
Patrice Garant
Keyword(s):  
New Brunswick ◽  
Supreme Court ◽  
Administrative Law ◽  
The Other ◽  
Control Data ◽  
The Supreme Court ◽  
Statutory Protection ◽  
Jurisdictional Control ◽  
The One

Are privative clauses useless in contemporaneous Administrative Law ? That is what the Report of Groupe de travail sur les tribunaux administratifs presided by professor Yves Ouellette appears to assume when it recommends their abolishment to Quebec legislators. Privative clauses are statutory protection given to administrative tribunals against any judicial interference, except in the cases of want or excess of juridiction. Since the Alliance case in 1953 it has been held that superior courts cannot be deprived of their supervisory jurisdiction on jurisdictional errors of law or fact ; a full privative clause would even be unconstitutional since Crevier in 1982. More recently, in New Brunswick Liquor Corporation and in Control Data, the Supreme Court specified that jurisdictional control extends to pattently unreasonable intrajurisdictional errors of law or fact. Nevertheless, the Superior Court cannot get involved in the review of any other question of law or fact in the presence of a privative clause. That is the very reason of the enactment of such a clause as the Supreme Court recalls in Control Data. Otherwise the control of the Superior Court extends to all aspects of legality. The Ouellette Report favours on the one hand, the autonomy of Administrative Tribunals; and on the other, it recommends a more extensive control by the Courts... Not easy to reconcile !

scholarly journals An Inquiry into the Limits of Judicial Intervention in the Impeachment Process of Governors in Kenya

2020 ◽  
Vol 5 (1) ◽  
pp. 139-156
Author(s):  
Andrea Munyao
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
The Other ◽  
County Government ◽  
Judicial Intervention ◽  
The Supreme Court ◽  
Problematic Issue ◽  
Duty To Protect ◽  
The One

Article 181(2) of the 2010 Constitution of Kenya instructs Parliament to enact a law highlighting the process of impeachment of a county governor. This has been realised through the County Government Act, Section 33. Section 33 recognises the County Assembly and the Senate as the bodies responsible for this process. However, the County Government Act fails to address at what point the courts can intervene in the impeachment process of governors. This is often a problematic issue as the doctrine of separation of powers requires each arm of government to perform their functions independently. Nonetheless, Kenyan courts have the duty to protect aggrieved parties whenever their rights are threatened. However, the point at which they can intervene is not stated under any law and this creates confusion between the role of courts of law in the impeachment process, on the one hand, and that of the County Assembly and the Senate, on the other. It is not clear which role should be discharged first. This paper, therefore, seeks to address this confusion through a critique of the Wambora case, a case that was appealed up to the Supreme Court. The paper also suggests a complimentary system whereby the Senate, County Assembly and the courts can work in harmony, and, do away with the confusion.

Canons of Evasion in Constitutional Criminal Law

2017 ◽  
Author(s):  
Sharon Dolovich
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Judicial Review ◽  
The State ◽  
The Other ◽  
State Action ◽  
The Supreme Court ◽  
The Face ◽  
The One ◽  
The Right

In this chapter, Sharon Dolovich argues that the Supreme Court deploys three “canons of evasion” that undermine core constitutional principles: deference, presumption, and question substitution. The chapter shows how the Court on the one hand affirms basic constitutional principles—such as the right to counsel or the right against cruel and unusual punishment—that courts are to enforce against the state for the protection of individual penal subjects. Yet on the other hand, the doctrinal maneuvers of deference, presumption, and substitute question encourage judges in individual cases to affirm the constitutionality of state action even in the face of seemingly egregious facts. As a result, judicial review delivers almost automatic and uncritical validation of whatever state action produced the challenged conviction, sentence, or punishment. Dolovich identifies troubling questions raised by pervasive use of these canons for the legitimacy of the state’s penal power.

scholarly journals AUCTION SALES “SUBJECT TO CONFIRMATION” AND FORMATION OF CONTRACTS Withok Small Farms (Pty) Ltd v Amber Sunrise Properties 5 (Pty) Ltd 2009 2 SA 504 (SCA)

Obiter ◽  
2021 ◽  
Vol 30 (2) ◽  
Author(s):  
Henk Delport
Keyword(s):  
Supreme Court ◽  
Standard Form ◽  
The Other ◽  
Small Farms ◽  
The Supreme Court ◽  
The One

The Supreme Court of Appeal’s judgment in Withok Small Farms (Pty) Ltd v Amber Sunrise Properties 5 (Pty) Ltd (2009 2 SA 504 (SCA) (“Withok”)) raises two important issues for property practitioners, the one relating to auction sales and the other to the formation of contracts. The dispute arose largely because of a badly drafted agreement of sale document, but the import of the judgment is such that it may be prudent for practitioners to revisit even their well-drafted standard form sale and lease documents. The facts were straightforward. Certain properties owned by the first and second appellants (“the sellers”) were put up for sale at a public auction on 13 June 2006. The respondent, represented by one A, put in the highest bid, which the auctioneer accepted. Both A and the auctioneer signed a document entitled “Agreement and Conditions of Sale” (“the conditions of sale”), which set out the conditions relating to the auction. On 20 June 2006 the sellers’ representative confirmed the sale in writing by adding his signature in the allotted space on the final page of the document. However, the confirmation of the sale was not communicated to the respondent within the time contemplated in clause 1. In fact, the respondent did not receive notice of the confirmation until some time early in July 2006.The respondent did not wish to be bound by the sale and in due course applied for an order declaring the agreement to be of no force and effect. Its case was that the confirmation of the sale had not been communicated to it within the seven-day period contemplated in clause 1 of the conditions of sale, with the result that no agreement came into existence. The sellers, in turn, contended that the conditions of sale signed by the respondent and the auctioneer at the time of the auction constituted an agreement of salesubject to a suspensive condition, namely the confirmation of the sale by the sellers; the condition was fulfilled immediately upon the confirmation of the sale and without any need for it to be communicated to the respondent. The only issue in dispute was whether or not the confirmation of the sale had to be communicated to the respondent within the seven-day period.

scholarly journals Le contrôle judiciaire des erreurs de droit en présence d'une clause privative

2005 ◽  
Vol 23 (1) ◽  
pp. 5-20
Author(s):  
Patrice Garant ◽  
Sylvio Normand
Keyword(s):  
New Brunswick ◽  
Supreme Court ◽  
Rule Of Law ◽  
Case Law ◽  
Administrative Law ◽  
Recent Case ◽  
Supreme Court Of Canada ◽  
Court Cases ◽  
The Rule Of Law ◽  
The Supreme Court

Administrative Tribunals have jurisdiction to deal with questions of law. In the exercise of such jurisdiction they may sometimes make mistakes in the construction of the statutes, regulations or other instruments. Even in the presence of a privative clause, an inferior tribunal should not be the supreme interpret of the law. It is one of the requirements of the « rule of law » that the Superior Court should have a supervisory « droit de regard ». Traditionally, only errors of law going to jurisdiction were out of the shield of the privative clause ; the Superior Courts used to restrain their intervention only after charactarizing the alleged error as « jurisdictional error of law ». Two difficulties came to arise from the approach about whether there exists an error of jurisdiction or one « merely » of law. Firstly, who can tell whether there is a genuine error of law. Secondly, what criteria transmute in the minds of Superior Court Judges an error into one of jurisdiction. The recent case law convinces us of the necessity of a different approach in order to achieve some clarity in this field of Administrative law. Mr. Justice Dickson of the Supreme Court of Canada hints at it in the Nispawin and the New Brunswick Liquor Corporation cases. This approach would put an end to the confusion that still prevail in other Supreme Court cases like Blanco or Labrecque. The distinction between errors of law going to jurisdiction and « merely » errors of law is unrational and so unpracticable that it should be abandoned and replaced by what we suggest in the following lines... Mr. Justice Robert Reid of the Ontario Divisional Court has also expressed the same concern in a remarquable judgment.

Penological Justifications as Sentencing Factors in Death Penalty Sentencing

2021 ◽  
pp. 227740172097285
Author(s):  
Anup Surendranath ◽  
Neetika Vishwanath ◽  
Preeti Pratishruti Dash
Keyword(s):  
Supreme Court ◽  
Death Penalty ◽  
The Other ◽  
Death Sentence ◽  
Life Imprisonment ◽  
The Core ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The One ◽  
Core Framework

When the Supreme Court of India upheld the constitutionality of the death penalty in Bachan Singh v. State of Punjab in 1980, it also laid down a sentencing framework for subsequent sentencing courts, guiding them in deciding between life imprisonment and the death penalty. This framework, popularly known as the ‘rarest of rare’ framework, was focused on individualised punishment. However, subsequent judgments have strayed away from Bachan Singh’s core framework, and the use of penological justifications as sentencing factors has contributed significantly to this deviation. This article argues that it is not within the mandate of sentencing judges to invoke penological theories as separate sentencing factors in individual cases when deciding between life imprisonment and the death sentence. The article begins by distinguishing between the penological justifications used to retain the death penalty in Bachan Singh and those underlying the sentencing framework developed in the judgment. It then examines subsequent judgments to trace the manner in which the capital sentencing framework was shaped to be crime-centric through the use of penological ideas like ‘collective conscience’ and deterrence. Examining the implications of penological justifications occupying a dominant place in death penalty sentencing, the article examines the broader concerns about the lack of clarity with sentencing goals. The failure in individual cases to distinguish between penological justifications as sentencing factors determining punishment, on the one hand, and viewing them as consequences arising out of an individualised sentencing process, on the other, lies at the core of the critique in this article.

scholarly journals COMPROMISE, UNDUE INFLUENCE AND ECONOMIC DURESS Gerolomou Constructions (Pty) Ltd v Van Wyk 2011 (4) SA 500 (GNP)

Obiter ◽  
2021 ◽  
Vol 33 (3) ◽  
Author(s):  
CJ Pretorius ◽  
R Ismail
Keyword(s):  
Supreme Court ◽  
Case Note ◽  
The Other ◽  
Undue Influence ◽  
Other Hand ◽  
The Supreme Court ◽  
The Law ◽  
The One ◽  
Court Of Appeal ◽  
Sound Judgment

The matter of Gerolomou Constructions (Pty) Ltd v Van Wyk (2011 (4) SA 500 (GNP)) alludes to two rather problematic aspects of the law of contract: on the one hand it demonstrates that practically speaking the question of what constitutes an enforceable agreement of compromise is still no easy matter, and despite the sound judgment delivered recently by the Supreme Court of Appeal in Be Bop A Lula Manufacturing & Printing CC v Kingtex Marketing (Pty) Ltd (2008 (3) SA 327 (SCA)), it seems that the judiciary’s interpretation as to when an offer of compromise exists remains difficult to predict. On the other hand the Gerolomou decision deals with improperly obtained consensus by way of undue influence, whereas the facts actually fit more comfortably into the niche of so-called economic duress, a form of procedural impropriety that has yet to be recognized as an independent ground for setting aside a contract in our law. This case note examines these issues against the backdrop of the manner in which the case was pleaded.

Applicability of EU multilingual resources

Babel ◽  
2017 ◽  
Vol 63 (6) ◽  
pp. 861-889
Author(s):  
Jeffrey Killman
Keyword(s):  
Supreme Court ◽  
The Other ◽  
European Law ◽  
High Quality ◽  
Linguistic Resources ◽  
The Supreme Court ◽  
Legal Texts ◽  
Different Types ◽  
The One ◽  
The Eu

Abstract Vocabulary is often considered one of the most difficult aspects of translating legal texts, and finding reliable textual supports is often a challenge too. This study presents the results of an experiment to use, as often as possible, multilingual EU resources with versions in Spanish and English as textual supports for a large sample of vocabulary that warranted research when the author was involved in translating into English a voluminous text of judgment summaries produced by the Supreme Court of Spain. In the majority of cases it was indeed possible to find high quality translations in EUR-Lex (Access to European Law) and IATE (InterActive Terminology for Europe), signaling, on the one hand, significant legal language overlap possibilities between the EU and Spain and, on the other, great potential for employing the former’s linguistic resources in the translation of the latter’s legal texts. Moreover, this study analyzes the results with an eye to linking the different types of vocabulary items that were searched to the different types of textual supports they were found in, to see how different kinds of supports (a collection of texts and their translations, such as EUR-Lex, or a multilingual terminological resource, such as IATE) might pair well with different kinds of vocabulary items. In this way the study also addresses some of the different opinions surrounding using online collections of texts and their translations (i.e. multilingual corpora) vs. multilingual terminological resources.

scholarly journals Two Myths of Administrative Law

2019 ◽  
Vol 9 (1) ◽  
Author(s):  
Mark P Mancini
Keyword(s):  
Supreme Court ◽  
Decision Maker ◽  
Judicial Review ◽  
Administrative Law ◽  
Supreme Court Of Canada ◽  
Statutory Interpretation ◽  
Administrative Action ◽  
The Supreme Court ◽  
The One ◽  
Do So

In an upcoming set of cases, the Supreme Court of Canada will review its approach to the standard of review of administrative action. In this paper, the author suggests that the Court must go back to the foundation of judicial review in redesigning the standard of review, namely, the task of courts to police the legal boundaries of the administrative body. To do so, courts must authentically interpret the legislative grant of authority to the administrative decision-maker, particularly to determine the appropriate intensity of review. To that end, the author suggests that the Court should discard two myths that have pervaded modern administrative law: (1) that administrative decisionmakers should be granted deference based on purported expertise in matters of statutory interpretation; and (2) that jurisdictional questions exist separately from questions of law. The myths may impose a different standard of review than the one discernible with the ordinary tools of statutory interpretation. The author argues that these court-created devices should not exist at the expense of the constitutionally prescribed duty of the courts to exercise their policing function and engage in genuine statutory interpretation to determine the appropriate standard of judicial review in a given case.

scholarly journals L'égalité selon la Cour suprême

2005 ◽  
Vol 18 (4) ◽  
pp. 691-710
Author(s):  
Denis Bourque
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
The Other ◽  
Bill Of Rights ◽  
The Rule Of Law ◽  
The Supreme Court ◽  
The Subject ◽  
The Law ◽  
The One ◽  
The Right

Clause 1(b) of the Canadian Bill of Rights specifies that every person has the right to equality before the law. The purpose of this article is to analyse, on the one hand, the meaning that the judges of the Supreme Court have given to this concept of equality before the law and, on the other hand, the way in which they have applied this aforementioned principle of Clause 1(b) of the Canadian Bill of Rights. Four judgements are the subject of Mr. Bourque's study. He concerns himself with the Drybones, Lavell, Burnshine and Canard judgements. In the course of analysing these cases, Mr. Bourque brings out the shilly-shallying of the judges in connection with their concept of equality before the law. In spite of this beating about the bush two concepts emerge at the level of the judges of the Supreme Court, namely an equalitarian concept of equality before the law, and a concept which makes equivalent equality before the law and the rule of law. According to Mr. Bourque, the analysis of these four judgements shows that it is the concept which makes equivalent equality before the law and the rule of law, which represents, the position of the Supreme Court, at the present time.

scholarly journals L'arbitre de griefs, instrument efficace de contrôle des abus de pouvoirs de l'employeur ?

2005 ◽  
Vol 19 (1) ◽  
pp. 105-115
Author(s):  
Jean-Louis Dubé
Keyword(s):  
Supreme Court ◽  
The Other ◽  
Collective Agreement ◽  
Supreme Court Of Canada ◽  
Collective Agreements ◽  
Grievance Arbitration ◽  
Chief Justice ◽  
Arbitration Process ◽  
The Supreme Court ◽  
The One

In theory, recourse to the grievance arbitration would appear to be an efficient means of controlling the abuse of powers (i.e. violations of the collective agreement) by the employer. Indeed, experience has borne out the truth of this affirmation. Mainly due to the management rights principle however, there still remain several important lacunae in this regard. On the one hand, by invoking the so-called management rights principle as a favorite means for circumscribing the arbitrator's jurisdiction, the Supreme Court of Canada has greatly diminished the efficacy of the arbitration process. This has occured primarily through the quashing of arbitration decisions either on the basis of error of law or else by limiting the arbitrator's discretion in disciplinary cases. On the other hand, it would be just as harmful to the efficiency of the arbitration process if arbitrators themselves were to abuse the management rights principle in interpreting and applying collective agreements. In general, arbitrators have proved to be highly conscious of this problem. By the same token, arbitrators have been faced with the problem of whether or not to discipline acts of insubordination even though employees may have been provoked by an abuse of authority on the part of the employer. All in all, arbitrators, by their attitude, appear to manifest a desire of ensuring the efficient functioning of the arbitration process, without acting to the detriment of management rights. In this regard, the Supreme Court of Canada, with the notable exception of Chief Justice Laskin, would seem to be fighting a rear-guard action by continually emphasizing management rights.

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