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Articles
Fiduciary Law and the Constructive Trust: Perfecting the Fiduciary Undertaking
March 2012
With the welcomed release of two unanimous decisions from the Supreme Court of Canada in Galambos v Perez and Alberta v Elder Advocates of Alberta Society, the requirements for recognizing fiduciary relationships and obligations have been narrowed and refreshed. Reducing confusion and finally uniting the Court in the area of fiduciary law, Justice Cromwell held in Galambos that all fiduciary obligations must be founded by an undertaking, either express or implied, on the part of the fiduciary to act in the interest of the other party. Where this undertaking provides the fiduciary with a "discretionary power to affect the other party's legal or [substantial] practical interests," the law provides a strict legal framework of liability in accordance with the scope of fiduciary obligations. This undivided direction from the Supreme Court was echoed by Chief Justice McLachlin in Elder Advocates, providing a powerful tool through which to recognize fiduciary relationships and understand the scope of fiduciary duty and liability from the nature of the fiduciary relationship itself. Nevertheless, the "Galambos approach" remains new and incomplete in its application in determining the scope of fiduciary duties and accountability. Published in Alberta Law Review, Volume 49, No. 3.
Medical Diagnosis of Legal Culpability: The Impact of Early Psychiatric Testimony in the 19th Century English Criminal Trial
March 2012
Fast-paced developments in psychiatry, neuroscience and emerging neuroimaging technologies place continual pressure on the legal recognition of mental illness and disease across jurisdictional boundaries. Nevertheless, the Canadian legal definition of exculpatory mental disease in the context of criminal liability has remained largely static, sheltered from the immediate influence of medical theory and advancements. In order to effectively reflect on the intersection of mental health and criminal justice systems in this area, it is important to understand its historical development and the English common law origins of the current approach. Published in the International Journal of Law and Psychiatry, Volume 35, No. 2.
The Limits of Derivative Actions: The Application of Limitation Periods to Derivative Actions
March 2012
The application of limitation periods to derivative actions causes a practical problem given its two-stage process. While derivative action cases have failed to consider this point, a review of the Canadian jurisprudence in other actions suggests the filing of the leave application, the first of the two-stage process, is sufficient to bring the derivative action within the limitation period. For instance, the Alberta Court of Queen's Bench in Sharma provides support for the argument that an application for leave is sufficient to "seek a remedial order" as it starts a chain of events leading to a judgment. Published in Alberta Law Review, Volume 49, No. 3 (March 2012).
Cyber Attack! How to Handle the Latest Compliance Challenge
Spring 2012
Duncan C. Card, Author, "Cyber Attack! How to Handle the Latest Compliance Challenge" article, Canadian Bar Association's Canadian Corporate Counsel Association Magazine, Spring 2012, Volume 6, No. 1, pages 14-15.
E-health Technology Solutions: Relying on The Services of Others
February 2012
Author, "E-health Technology Solutions: Relying on "The Services of Others"" article, Healthcare Information Management & Communications Canada Journal, 1st Quarter, February 2012 , Volume 26, No. 1, page 27.
Citizenship in the Legal Profession
January/February 2012
The beginning place for any consideration of professional behaviour has to be a recognition of, as well as a rededication to, our fundamental professional service mandate. With this central raison d'etre in mind, our profession has been constituted as a self-governing institution. Generally speaking, the form of professional self-governance is shaped by the following goals: (i) ensuring individual and institutional accountability to the public, (ii) ensuring standards of excellence, (iii) recognizing that membership entails privileges with corresponding obligations, and (iv) ensuring that the self-governance mandate is democratically instituted. Published in the January/February 2012 issue of the Arctic Obiter, Volume XVI, Issue 1.
Aboriginal Rights in Canada: Doing Business with the Third Order of Government
2012
The enactment of section 35 of the Constitution Act, 1982 had far-reaching structural significance. It confirmed the status of Aboriginal peoples as partners in the complex federal arrangements that make up Canada. It provided the basis for recognizing Aboriginal governments as one of three distinct orders of government in Canada: Aboriginal, provincial and federal. The governments making up these three orders share the sovereign powers of Canada as a whole, powers that represent a pooling of existing sovereignties.
Canadian Environmental Law
2011/12
David Bursey, Shelley O'Callaghan, Max Collett, and Matt Keen, "Canadian Environmental Law", Practical Law Multi-jurisdictional Guide 2011/12.
Research Ethics Challenges in Neuroimaging Research: A Canadian Perspective
2012
Neuroimaging research continues to engage the imaginations of
scientists, members of the media, and the general public. As an area of human
subject research, it also raises a number of research ethics issues that, while
not necessarily unique to neuroimaging, offer particular challenges in this
growing domain. Here, we consider a number of the key research ethics issues
that are emerging as being of central importance to the continued development of
this field. We will situate our discussion within the Canadian framework, but
many of the issues raised will have broad jurisdictional relevance. While
providing a comprehensive examination of all of the research ethics issues
implicated by neuroimaging research is beyond the scope of this review, it is
hoped that this paper will serve as a useful overview and guide to researchers,
research ethics boards, and others interested in neuroimaging research.
Co-authored by Ciara Toole, Amy Zarzeczny, Timothy Caulfield and published in
International Neurolaw: A Comparative Analysis, T.M. Spranger (ed.)
Springer, 2012.
Canada's Anti-Spam Legislation: Casting a Wide Net
Winter 2011
The new Canadian anti-spam legislation (unofficially, the Anti-Spam Act) is one of the most comprehensive and onerous anti-spam statutes to date, imposing significant requirements not seen in other jurisdictions. Businesses using e-mail in Canada should carefully consider the impact of this legislation on their operations. Published in The Winston Report, Winter 2011, Vol 5 No 2.
Canada's Recent Moves on Foreign Investment
December 2011/January 2012
Significant changes to the Investment Canada Act were made in March 2009 that have important implications for the foreign investment review of acquisitions of Canadian businesses by India-based companies. After almost three years, it is worth looking back at recent developments. Published in the December 2011/January 2012 edition of India Business Law Journal.
IT Systems and Patient Safety
December 2011
Large-scale IT systems (and some small-scale systems, as well) in healthcare settings can have beneficial effects on the provision of patient care and the quality of that care. Systems, being human artifacts, may include errors and thereby on occasion introduce risks. Computer systems can introduce different types of risks, and the incidence of risk can scale up very quickly. Causes of such human-generated or computer system risks can on occasion be opaque and difficult to track. Reproduced with permission of the publisher from Electronic Healthcare Law Review, Vol. 1, No. 2, December 2011.
Time for Independence
November 2011
Virtually no Canadian director has incurred liability requiring payment from his or her own funds, but many have been the target of stinging criticism. This is often the biggest motivator for directors – not the risk of liability, but the risk of appearing to have done wrong. Still, when issues do arise, many directors rely on the company to provide legal counsel even though independent counsel may be a better choice. Published in the November 2011 issue of Lexpert magazine as part of Barry Reiter's regular column.
Abandoning Comparator Groups in Withler
December 15, 2011
Comparison is often described as an essential component of equality. However, since the introduction of the Charter, the Supreme Court of Canada has struggled with how to appropriately and effectively incorporate comparison into its section 15 framework. Until recently, the process was operationalized through the use of "mirror comparator groups." However, after the Supreme Court's reformulation of the section 15(1) test in R. v. Kapp, there is uncertainty as to how, or even if, this approach is still relevant. Published in Charter and Human Rights Litigation by Federated Press.
Doha Deadlock Aside, WTO Talks Still Worth the Effort
December 14, 2011
A few years ago, a World Trade Organization Ministerial meeting would have been the focus of global attention. But with the Doha Round stalled, trade minister Ed Fast and the other 152 delegates at this week's gathering in Geneva (Dec. 15-17) are already in general agreement that it will “not be a negotiating meeting.” The outcome has been largely precooked. Published in the Economy Lab section of the Globe and Mail.
Shipping Oil to Asia? The Route's East, Not West
December 13, 2011
The handling of the Keystone XL pipeline process by the Obama administration serves as a loud wake-up call for Canada. While America remains our most important market, Prime Minister Stephen Harper has said that Canada should not be a “captive supplier” of energy for the United States. In light of global demand growth, it's also in Canada's national interest for Ottawa to act decisively to enable our oil and gas industry to diversify its customer base. Co-written with Derek Burney; published in the Opinions section of the Globe and Mail.
EU Fuel Directive: A Discriminatory and Deceitful Sham
December 01, 2011
Product extracted from Canada's oil sands is being attacked by environmentalists on two fronts: in the U.S., through opposition to the Keystone XL pipeline, and in Europe, through the proposed implementation of a fuel standard that purports to seek a six-percent reduction in the carbon intensity of Europe's transport fuel supply by 2020. Published in the Edmonton Journal.
Force Majeure in Canadian Law
December 2011
This article undertakes a comprehensive review of the Canadian law of force majeure and its application in the energy sector. The article begins by examining the legal foundations of force majeure found in the common law, Canadian jurisprudence, and other legal regimes. It then describes the operation of a force majeure clause and analyzes how such a clause is likely to be interpreted by the courts. The authors incorporate many practical suggestions that will be useful to drafters of force majeure clauses. Published in the Alberta Law Review, Energy Law Edition, Volume 49, No.2.
Bennett Jones