Separation of Powers: the Canadian Experience
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Constitutional Equity and the Innovative Tradition
CONSTITUTIONAL EQUITY AND THE INNOVATIVE TRADITION WILLIAM T. QUILLEN* I INTRODUCTION Lazard Freres & Company ("Lazard") and Dillon Read & Company, Inc. ("Dillon"), the investment bank advisers to the special committee of the board of directors of RJR Nabisco, Inc. ("RJR"), 1 moved to intervene in the recent Nabisco shareholder litigation in the Delaware Court of Chancery.2 The motion presented the court with the stuff of lawyers-personal jurisdiction, subject matter jurisdiction, mandatory counterclaims, mandatory and permissive intervention, declaratory judgments, collateral estoppel-in short, a feast for those of our craft who are determined that the elimination of common law pleading and antiquated bills in equity shall not spoil all the fun.3 The motion to intervene was presented to Chancellor William T. Allen, Chief Judge of the Delaware Court of Chancery. What is striking about the portion of the opinion dealing with subject matter jurisdiction is not its example of a now-rare breed of legal issues (that is, is the declaratory judgment counterclaim, being a strictly legal matter designed to negate liability for negligence, cognizable in a separate court of equity?), nor even the overall issues of the modern uniqueness of the Delaware bifurcated Copyright © 1993 by William T. Quillen * Delaware Secretary of State; Distinguished Visiting Professor of Law, Widener University School of Law, Wilmington, Delaware; former Chancellor, Delaware Court of Chancery; retired Justice, Delaware Supreme Court. This article is largely taken from a longer work. See William T. Quillen, A Historical Sketch of the Equity Jurisdiction in Delaware (1982) (unpublished LL.M. thesis, University of Virginia) [hereinafter Quillen, Historical Sketch]. -
The Difficulty of Amending the Constitution of Canada
Osgoode Hall Law Journal Volume 31 Issue 1 Volume 31, Number 1 (Spring 1993) Symposium: Towards the 21st Century Article 2 Canadian/Australian Legal Perspectives 1-1-1993 The Difficulty of Amending the Constitution of Canada Peter W. Hogg Osgoode Hall Law School of York University Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/ohlj Part of the Constitutional Law Commons Special Issue Article This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Citation Information Hogg, Peter W.. "The Difficulty of Amending the Constitution of Canada." Osgoode Hall Law Journal 31.1 (1993) : 41-61. https://digitalcommons.osgoode.yorku.ca/ohlj/vol31/iss1/2 This Special Issue Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. The Difficulty of Amending the Constitution of Canada Abstract The Charlottetown Accord of 1992 was a set of proposals for amendments to the Constitution of Canada. These proposals were designed to achieve a national settlement of a variety of constitutional grievances, chiefly those arising from Quebec nationalism, western regionalism, and Aboriginal deprivation. The Accord was defeated in a national referendum. In the case of Quebec, the defeat of the Charlottetown Accord, following as it did on the defeat of the Meech Lake Accord, has made the option of secession relatively more attractive, but there are sound pragmatic reasons to hope that Quebec will not make that choice. -
Special Series on the Federal Dimensions of Reforming the Supreme Court of Canada
SPECIAL SERIES ON THE FEDERAL DIMENSIONS OF REFORMING THE SUPREME COURT OF CANADA The Supreme Court of Canada: A Chronology of Change Jonathan Aiello Institute of Intergovernmental Relations School of Policy Studies, Queen’s University SC Working Paper 2011 21 May 1869 Intent on there being a final court of appeal in Canada following the Bill for creation of a Supreme country’s inception in 1867, John A. Macdonald, along with Court is withdrawn statesmen Télesphore Fournier, Alexander Mackenzie and Edward Blake propose a bill to establish the Supreme Court of Canada. However, the bill is withdrawn due to staunch support for the existing system under which disappointed litigants could appeal the decisions of Canadian courts to the Judicial Committee of the Privy Council (JCPC) sitting in London. 18 March 1870 A second attempt at establishing a final court of appeal is again Second bill for creation of a thwarted by traditionalists and Conservative members of Parliament Supreme Court is withdrawn from Quebec, although this time the bill passed first reading in the House. 8 April 1875 The third attempt is successful, thanks largely to the efforts of the Third bill for creation of a same leaders - John A. Macdonald, Télesphore Fournier, Alexander Supreme Court passes Mackenzie and Edward Blake. Governor General Sir O’Grady Haly gives the Supreme Court Act royal assent on September 17th. 30 September 1875 The Honourable William Johnstone Ritchie, Samuel Henry Strong, The first five puisne justices Jean-Thomas Taschereau, Télesphore Fournier, and William are appointed to the Court Alexander Henry are appointed puisne judges to the Supreme Court of Canada. -
Practice and Procedure the Applicable Rules Of
PRACTICE AND PROCEDURE THE APPLICABLE RULES OF EVIDENCE IN FEDERAL COURT: A SHORT PRIMER ON A TRICKY QUESTION Whether at trial or during interlocutory proceedings, litigators need to know the applicable rules of evidence, since there are import- ant variations in provincial evidence law. The largest difference, of course, is between the civil law of QueÂbec and laws of the nine common-law provinces. Yet significant differences exist even between the common law provinces themselves. Admissions made during discovery can be contradicted at trial in Ontario, but not in Saskatchewan.1 Spoliation of evidence requires intentional conduct in British Columbia before remedies will be granted, but not in New Brunswick.2 Evidence obtained through an invasion of privacy is inadmissible in Manitoba, while the other provinces have yet to legislate on this issue.3 1. Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 43 C.P.C. (5th) 65, 51 O.R. (3d) 97, 138 O.A.C. 201 (Ont. C.A.) at paras. 72-86, leave to appeal refused [2001] 2 S.C.R. x, 156 O.A.C. 358 (note), 282 N.R. 397 (note) (S.C.C.); Branco v. American Home Assur- ance Co., 2013 SKQB 98, 6 C.C.E.L. (4th) 175, 20 C.C.L.I. (5th) 22 (Sask. Q.B.) at paras. 96-101, additional reasons 2013 SKQB 442, 13 C.C.E.L. (4th) 323, [2014] I.L.R. I-5534, varied on other issues without comment on this point 2015 SKCA 71, 24 C.C.E.L. -
COVID-19 Guide: In-Person Hearings at the Federal Court
COVID-19 Guide: In-person Hearings at the Federal Court OVERVIEW This guide seeks to outline certain administrative measures that are being taken by the Court to ensure the safety of all individuals who participate in an in-person-hearing. It is specifically directed to the physical use of courtrooms. For all measures that are to be taken outside of the courtroom, but within common areas of a Court facility, please refer to the guide prepared by the Courts Administrative Service, entitled Resuming In-Person Court Operations. You are also invited to view the Court’s guides for virtual hearings. Additional restrictions may apply depending on the evolving guidance of the local or provincial public health authorities, and in situations where the Court hearing is conducted in a provincial or territorial facility. I. CONTEXT Notwithstanding the reopening of the Court for in-person hearings, the Court will continue to schedule all applications for judicial review as well as all general sittings to be heard by video conference (via Zoom), or exceptionally by teleconference. Subject to evolving developments, parties to these and other types of proceedings are free to request an in-person hearing1. In some instances, a “hybrid” hearing, where the judge and one or more counsel or parties are in the hearing room, while other counsel, parties and/or witnesses participate via Zoom, may be considered. The measures described herein constitute guiding principles that can be modified by the presiding Judge or Prothonotary. Any requests to modify these measures should be made as soon as possible prior to the hearing, and can be made by contacting the Registry. -
Judicial Review of the Division of Powers in the Supreme Court of Canada 2010 Canliidocs 474 Wade K
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference Volume 51 (2010) Article 21 Facilitating Intergovernmental Dialogue: Judicial Review of the Division of Powers in the Supreme Court of Canada 2010 CanLIIDocs 474 Wade K. Wright Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/sclr This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Citation Information Wright, Wade K.. "Facilitating Intergovernmental Dialogue: Judicial Review of the Division of Powers in the Supreme Court of Canada." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 51. (2010). http://digitalcommons.osgoode.yorku.ca/sclr/vol51/iss1/21 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in The uS preme Court Law Review: Osgoode’s Annual Constitutional Cases Conference by an authorized editor of Osgoode Digital Commons. Facilitating Intergovernmental Dialogue: Judicial Review of the Division of Powers in the Supreme Court of Canada 2010 CanLIIDocs 474 Wade K. Wright∗ I. INTRODUCTION A cursory review of any Canadian law review tells the story: the Ca- nadian Charter of Rights and Freedoms1 is “in” and the division of powers is “out”. Since 1982, when the Charter came into force, there has been a vast amount of writing about the Supreme Court of Canada’s Charter decisions. However, its division of powers decisions, once the staple of constitutional law scholars, are now routinely ignored, particu- larly in English Canada.2 This trend has been noted before, with little effect. -
Translating the Constitution Act, 1867
TRANSLATING THE CONSTITUTION ACT, 1867 A Legal-Historical Perspective by HUGO YVON DENIS CHOQUETTE A thesis submitted to the Faculty of Law in conformity with the requirements for the degree of Master of Laws Queen’s University Kingston, Ontario, Canada September 2009 Copyright © Hugo Yvon Denis Choquette, 2009 Abstract Twenty-seven years after the adoption of the Constitution Act, 1982, the Constitution of Canada is still not officially bilingual in its entirety. A new translation of the unilingual Eng- lish texts was presented to the federal government by the Minister of Justice nearly twenty years ago, in 1990. These new French versions are the fruits of the labour of the French Constitutional Drafting Committee, which had been entrusted by the Minister with the translation of the texts listed in the Schedule to the Constitution Act, 1982 which are official in English only. These versions were never formally adopted. Among these new translations is that of the founding text of the Canadian federation, the Constitution Act, 1867. A look at this translation shows that the Committee chose to de- part from the textual tradition represented by the previous French versions of this text. In- deed, the Committee largely privileged the drafting of a text with a modern, clear, and con- cise style over faithfulness to the previous translations or even to the source text. This translation choice has important consequences. The text produced by the Commit- tee is open to two criticisms which a greater respect for the prior versions could have avoided. First, the new French text cannot claim the historical legitimacy of the English text, given their all-too-dissimilar origins. -
“The Execution of a Trust Shall Be Under the Control of the Court” : a Maxim in Modern Times
This is a repository copy of “The execution of a trust shall be under the control of the court” : A Maxim in Modern Times. White Rose Research Online URL for this paper: https://eprints.whiterose.ac.uk/88217/ Version: Published Version Article: Nolan, Richard orcid.org/0000-0002-7134-5124 (2016) “The execution of a trust shall be under the control of the court” : A Maxim in Modern Times. Canadian Journal of Comparative and Contemporary Law. pp. 469-496. ISSN 2368-4046 Reuse Items deposited in White Rose Research Online are protected by copyright, with all rights reserved unless indicated otherwise. They may be downloaded and/or printed for private study, or other acts as permitted by national copyright laws. The publisher or other rights holders may allow further reproduction and re-use of the full text version. This is indicated by the licence information on the White Rose Research Online record for the item. Takedown If you consider content in White Rose Research Online to be in breach of UK law, please notify us by emailing [email protected] including the URL of the record and the reason for the withdrawal request. [email protected] https://eprints.whiterose.ac.uk/ (2016) 2(2) CJCCL 469 “e execution of a trust shall be under the control of the court”: A Maxim in Modern Times Richard C Nolan* This article examines the ancient, well attested, but largely unexamined, inherent jurisdiction of the court to supervise, and if necessary administer and execute, any trust. It considers the modern and inventive use of this jurisdiction, and its vital role in the juridication of innovative trust practice. -
The Hidden Ally: How the Canadian Supreme Court Has Advanced the Vitality of the Francophone Quebec Community
The Hidden Ally: How the Canadian Supreme Court Has Advanced the Vitality of the Francophone Québec Community DISSERTATION Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy in the Graduate School of The Ohio State University By Douglas S. Roberts, B.A., J.D., M.A. Graduate Program in French and Italian The Ohio State University 2015 Dissertation Committee: Professor Wynne Wong, Advisor Professor Danielle Marx-Scouras, Advisor Professor Jennifer Willging Copyright by Douglas S. Roberts 2015 Abstract Since the adoption of the Charter of Rights and Freedoms in 1982, the Canadian Supreme Court has become a much more powerful and influential player in the Canadian political and social landscape. As such, the Court has struck down certain sections of the Charter of the French Language (Bill 101) as contrary to the Constitution, 1867 and the Charter of Rights and Freedoms. In Ford v. Québec, [1988] 2 S.C.R. 712, for instance, the Court found unconstitutional that portion of Bill 101 that required commercial signage to be in French only. After the decision was announced, public riots broke out in Montreal. As a result of this decision, one could conclude that the Court has, in fact, resisted Québec‘s attempts to protect and promote its own language and culture. In this dissertation, however, I argue that this perception is not justified, primarily because it fails to recognize how Canadian federalism protects diversity within the Confederation. Contrary to the initial public reaction to the Ford case, my contention is that the Court has, in fact, advanced and protected the vitality of Francophone Québec by developing three fundamental principles. -
S Inherent Jurisdiction to Sit Outside Its Home Territory
A Court’s Inherent Jurisdiction to Sit Outside its Home Territory Another step in the evolution of the common law on this issue has been taken by the Court of Appeal for Ontario in Parsons v Ontario, 2015 ONCA 158 (available here). The court disagrees in some respects with the earlier decision, on the same issue, of the British Columbia Court of Appeal in Endean v British Columbia, 2014 BCCA 61 (available here) (discussed by me over a year ago here). It may be that in light of this conflict the Supreme Court of Canada will end up hearing appeals of either or both decisions. People infected with the Hepatitis C virus by the Canadian blood supply between 1986 and 1990 initiated class actions in each of Ontario, Quebec and British Columbia. These actions were settled under an agreement which provided for ongoing administration of the compensation process by a designated judge in each of the three provinces. In 2012 the issue arose as to whether the period for advancing a claim to compensation could be extended. Rather than having three separate motions in each of the provinces before each judge to address that issue, counsel for the class proposed a single hearing before the three judges, to take place in Alberta where all of them would happen to be on other judicial business. In the face of objections to that process, motions were brought in each province to determine whether such an approach was possible. The initial decision in each province was that a court could sit outside its home province. -
The Rule of Law, the Separation of Powers and Judicial Independence in Canada
Chapter 48 The Rule of Law, the Separation of Powers and Judicial Independence in Canada Warren J. Newman* The Constitution of Canada was modelled on the British tradition of unwritten principles and conventions governing the exercise of legal power to produce a constitutional mon- archy, parliamentary democracy, and responsible government, as well as the American paradigm of constitutional supremacy embodied in written provisions, required in turn by the federal rather than unitary structure of the state. This hybrid model is reflected in the Canadian understanding of the rule of law, which is embodied implicitly in the preamble to the Constitution Act, 1867— Canada was to enjoy ‘a Constitution simi- lar in Principle to that of the United Kingdom’—and explicitly in the preamble to the Canadian Charter of Rights and Freedoms (itself a part of the Constitution Act, 1982)— ‘Whereas Canada is founded upon principles which recognize the supremacy of God and the rule of law’. The idea of the rule of law is also intrinsic to provisions such as section 7 of the Charter, guaranteeing the right to life, liberty, and security of the per- son and the right not to be deprived thereof ‘except in accordance with the principles of fundamental justice’; section 15, protecting and expanding upon Dicey’s1 understanding * BA, BCL, LL.B (McGill), LL.M (Osgoode), Ad E; of the Bars of Quebec and Ontario; Senior General Counsel, Constitutional, Administrative and International Law Section, Department of Justice of Canada. The views expressed in this chapter do not bind the Department. 1 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 10th ed. -
Insights from Canada for American Constitutional Federalism Stephen F
Penn State Law eLibrary Journal Articles Faculty Works 2014 Insights from Canada for American Constitutional Federalism Stephen F. Ross Penn State Law Follow this and additional works at: http://elibrary.law.psu.edu/fac_works Part of the Comparative and Foreign Law Commons, and the Constitutional Law Commons Recommended Citation Stephen F. Ross, Insights from Canada for American Constitutional Federalism, 16 U. Pa. J. Const. L. 891 (2014). This Article is brought to you for free and open access by the Faculty Works at Penn State Law eLibrary. It has been accepted for inclusion in Journal Articles by an authorized administrator of Penn State Law eLibrary. For more information, please contact [email protected]. ARTICLES INSIGHTS FROM CANADA FOR AMERICAN CONSTITUTIONAL FEDERALISM Stephen F Ross* INTRODUCTION National Federation of Independent Business v. Sebelius' has again fo- cused widespread public attention on the role of the United States Supreme Court as an active arbiter of the balance of power between the federal government and the states. This has been an important and controversial topic throughout American as well as Canadian constitutional history, raising related questions of constitutional the- ory for a federalist republic: Whatjustifies unelected judges interfer- ing with the ordinary political process with regard to federalism ques- tions? Can courts create judicially manageable doctrines to police federalism, with anything more than the raw policy preferences of five justices as to whether a particular legislative issue is