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Proportionality: Constitutional Rights and their Limitation is the most comprehensive and authoritative account of the vast literature on proportionality and would be indispensable to anyone interested in the field. Barak evaluates several justifications for the use of proportionality and several defences of proportionality against its critics. This review article concentrates on one such defence: viewing proportionality as a structured and analytically coherent set of tests requiring the government to provide reasons and justifications for all of its actions. We identify several prominent recent writers, Barak among them, who represent a shift in the literature on proportionality towards a justification-based approach, and assess their rationales for the duty of the government to give justifications and provide reasons for its actions. However, we claim that those rationales do not necessarily support proportionality and that a more categorical approach, such as ‘exclusionary reasons,’ follows just as much from the ideas underlying justification and provides a better anchor for proportionality.
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Novartis v Cobalt / zoledronate (NOC) 2014 FCA 17 Sharlow JA: Webb, Near JJA aff’g 2013 FC 985 Hughes J 2,410,201 – ACLA...
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This article seeks to identify the nature of vindication as a distinctive function within the English law of torts. It argues that a specific conception of vindication explains fundamental features of the law of torts, variations in the structure of different torts, as well as variations in the approach to damages from one tort to another, which are not explicable by reference to well-documented functions of torts, such as compensation and punishment. According to this conception vindication entails attesting to, affirming and reinforcing the importance of those interests that are the subject of the law’s protection and their inherent value, and by association the importance of the overlying legal rights. The emphasis on vindication varies across torts; the torts actionable per se are paradigm examples of torts that have vindication as their primary function.The focus of this article is on how the over-arching vindicatory function of a tort shapes the approach to compensatory damages. It is submitted that for torts which have vindication as their primary function damages are available for the wrongful interference with the interest protected by the tort, in and of itself. Such damages compensate for a damage that is ‘normative’ in nature, are assessed objectively, and are awarded notwithstanding whether the claimant suffers any negative psychological, physical, emotional or economic effects in consequence of the wrong. The article goes on to analyse the relationship between vindication and non-compensatory damages, including the novel head of ‘vindicatory damages’.
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"Solicitor-Client Privilege is the only Canadian textbook of its kind to explain key aspects of lawyer-client confidentiality. With a Foreword written by former Supreme Court of Canada justice Ian Binnie, this distinctly Canadian law textbook analyzes the exceptions to privilege, conditions where privilege is unclear, and situations of competing interests that might bring into question the application of privilege. Especially useful is the examination of privilege in specific contexts, such as in civil litigation, administrative law, corporate settings, and government. Portable and immediately accessible, this useful hardcover book gives lawyers the answers they quickly need, and assurances as to when they can rely on solicitor-client privilege and when they can challenge it."--Publisher's description.
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Weinrib, J. (2014). The Modern Constitutional State: A Defence. Queen’s Law Journal, 40(1), 165–212.
Disclaimer: This summary was generated by AI based on the content of the source document.
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In recent years Chambers, Smith, McFarlane and Stevens have all sought to explain the nature of equitable proprietary rights by way of the concept of a ‘right to (or ‘in’, or ‘against’) a right’. In this paper I argue that there is a sense in which this conceptualisation of the beneficiary’s equitable proprietary under a trust is illuminating, but that, rather than a right to the trustee’s possessory interest in tangible property, the ‘rights’ of the trustee in which the beneficiary is interested are the trustee’s powers of title. I also contend, in a ‘fusionist’ spirit, that equitable property interests should not be treated as a particular ‘legal kind’, but rather that only interests under trusts should be regarded as a distinct sort of property interest within the numerus clausas. I go on to show how the proposed analysis best explains (1) our notion of ‘beneficial interest’ under a trust; (2) why a trustee is not a residual claimant to the trust assets; (3) the interest of a discretionary object of a trust; (4) the rules of and rationale for tracing; and (5) the ‘automatic’ resulting trust.
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"In recent years, trust law has continued to expand its influence at a rapid pace, particularly in the area of pension trusts, where it plays a key role in resolving conflicts over the administration, creation, termination, and revocation of pension funds. The flexible nature of trusts results in its continued development, especially in the areas of resulting and constructive trusts. This new edition offers substantially revised chapters on both types of trust, as well as many more caselaw references. Chapter 6 explores the various situations in which a resulting trust can arise, examines the important role of intention in finding a resulting trust, and analyzes recent pronouncements by the Supreme Court on the presumptions of resulting trust and advancement. Chapter 7 offers an updated discussion of the constructive trust, which courts increasingly employ as a tool for remedying unjust enrichment in cohabitation cases."--Pub. desc.
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A review of recent jurisprudence and doctrine points to the emergence of a new category of contractual obligation : the essential obligation. An array of texts, more numerous in France than in Québec, highlights and attempts to define the notion. Nevertheless, because of the quantitative and qualitative importance of the elements that characterize each proposed doctrinal definition, none is truly satisfactory. We have no choice but to admit that the number of concerns and criticisms raised in connection with the notion make it difficult to circumscribe its actual meaning. In this article, after setting out some doctrinal definitions and the main uncertainties surrounding the notion, we will try to uncover its true meaning by reviewing the ways in which it is used. We will show that the essential obligation has earned a place in the increasingly broad and specialized set of restrictions on contractual freedom.
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