UBC Law Review

UBC 2008-2009 Board

Tue, 29 Apr 2008 13:46:27 -0800

Editor-in-Chief: Shane Hopkins-Utter
Associate Editor-in-Chief: Krista Johanson
Articles Editors: Sarah Ng, Jarrett Plonka
Case Comments and Book Reviews Editor: Marega Medlicott
Recent Legislation and Law Reform Editor: Alexander Cooke

Referee Co-ordinator: Daniel Getz
Secretary-Treasurer: Sam Cook

Senior TSL Editor: Kerri-Ann Reid
TSL Editor: Devin Larson
Special Projects Coordinator: Claire Sung

Faculty Advisors
Dean Mary Anne Bobinski
Professor E. R. Edinger
Professor B. MacDougall
Professor J. Kleefeld

2008 AGM

Sat, 08 Mar 2008 09:45:37 -0800

The UBC Law Review Society will hold its Annual General Meeting on Friday, March 28 at 12:30 in Room 175.

SNACKS AND DRINKS WILL BE PROVIDED

At the meeting we will:
-Introduce the Law Review Board for 2008/09
-Present a business report (including financial statements) for the past year
-Present a general progress report on the U.B.C. Law Review

THIS IS YOUR CHANCE TO SUGGEST CHANGES AND VOTE ON MATTERS IMPORTANT TO THE LAW REVIEW SOCIETY.

Attendance at this meeting is restricted to Board members and active members who have contributed to the Law Review Society a minimum of 2 hours per month over the past seven months.

To RSVP or for further information please contact the Law Review office at 822-3066 or lawrev@interchange.ubc.ca

2008-2009 Board Positions

Tue, 04 Mar 2008 12:48:29 -0800

The Law Review is seeking applicants for eleven board positions for the upcoming academic year:

1 Editor-in-Chief
1 Table of Statutory Limitations Editor
1 Case Comments & Book Reviews Editor
1 Law Reform & Recent Legislation Editor
2 Articles Editors
1 Production Editor
1 Referee Coordinator
1 Secretary/Treasurer
1 Business Manager

The responsibilities of all Board members include the administration of the Law Review Society as well as the individual responsibilities that accompany each specific area. Board members receive 2 academic credits for their service. If you apply for more than one position, please state your order of preference. Applicants must have been active in the Law Review during the school year. The 2008/09 board’s term begins on May 1, 2008 and ends on April 30, 2009.

Deadline for applications is Monday, March 10, 2008. Please submit your application (résumé and cover letter) to the Law Review office, Room 175, to the attention of Annie Chen, Editor-in-Chief. E-mailed applications to lawrev@interchange.ubc.ca are also accepted. For further information on the positions or this process please contact us in Room 175 or at 822-3066 or lawrev@interchange.ubc.ca

Subscribe to the Law Review

Wed, 26 Sep 2007 11:35:28 -0800

To subscribe to the UBC Law Review, please contact the office at lawrev@interchange.ubc.ca

Each volume of the UBC Law Review consists of two issues, usually published in late spring and fall respectively. Additional special issues are periodically published and subscribers receive these special issues at no extra cost.

ANNUAL SUBSCRIPTION
In Canada: $50 plus applicable taxes
Internationally: $55
Canadian students: $25 plus applicable taxes
Index to Volumes 1-15: $15
Index to Volumes 16-24: $15

Prices are in Canadian dollars and are subject to GST. Subscriptions are automatically renewed on an annual basis. Notice of termination is required to cancel a subscription.

Back Copies

Copies of back issues of the UBC Law Review can be obtained from:

William S. Hein & Co., Inc.>
1285 Main Street
Buffalo, NY 14029
USA
Phone: 1-800-828-7571
E-mail: mail@wshein.com

Subscribe to the TSL

Wed, 26 Sep 2007 11:34:45 -0800

To subscribe to the Table of Statutory Limitations please contact the office at lawrev@interchange.ubc.ca

The UBC Law Review Society has published the TSL since 1955. Used by over 1000 legal practitioners throughout BC, the TSL is a compendium of the legal limitation periods of various statutes. The TSL features the following:

Limitation Act
Small Claims Court Rules
Supreme Court of British Columbia Rules, and
British Columbia Court of Appeal Rules

The TSL is updated annually and a Full Edition currently costs $70 plus $10 for binder and tabs (prices are subject to GST and may change without notice); for international subscribers, the cost is $75 plus $10 for binder and tabs.

The UBC Law Review no longer publishes the The Table of Federal Statutory Limitations.

Interested in Getting Involved with the Law Review?

Wed, 12 Sep 2007 11:43:00 -0800

Join as an assistant or volunteer!

To apply, please indicate what position(s) you are interested in (Assistant Editor, Assistant TSL Editor, and Assistant Business Manager) and drop off a cover letter and resume at the Law Review Office (Room 175) or email it to us at lawrev@interchange.ubc.ca. We typically have around 40 assistants a year, mostly consisting of first year students, so there are many positions available.

The deadline for assistant applications is Monday, September 24th at 5 pm. Please include a resume and cover letter. You are welcome to apply for more than one position, but please list an order of preference.

For more information on why to get involved read below:

Abstracts - Volume 40, Number 1

Thu, 02 Aug 2007 12:59:38 -0800

Articles

Berryman, Jeff - Accommodating Ethnic and Cultural Factors in Damages for Personal Injury
Liberal democratic societies that have embraced multiculturalism are now confronted with how to reconcile liberal values with illiberal cultural/ethnic values and practices of minority groups within those societies. Much faith is placed in the rule of law to be able to bridge these conflicts. In those Canadian provinces that practice the common law, courts are called upon to interpret the common law in a way that reflects Canada’s commitment to multiculturalism. In this paper the author explores one small aspect of that accommodation in the area of compensation for personal injuries.

Cockfield, Arthur J. - Protecting the Social Value of Privacy in the Context of State Investigations Using New Technologies
In pursuit of security, governments around the world are adopting powerful technologies to collect and share detailed personal information, potentially leading to an erosion of privacy. This article discusses how legal analysis should respond to situations where technology developments challenge privacy interests in the context of state investigations. In particular, judges, lawyers and policy-makers need to take into more explicit account both the individual rights aspect of privacy as well as the social value of privacy, that is, society’s interest in preserving privacy apart from a particular individual’s interest. Both of these aspects of privacy are critical to the functioning of our democratic state. This approach demonstrates that legal analysis sometimes overstates the tension between privacy and security as both can be portrayed as social interests. To establish that a state search is constitutionally permissible, the need to protect the social value of privacy compels the Crown to prove that a state agency has developed and initiated reasonable policies to govern the collection, use and disclosure of personal information through new surveillance technologies.

Craig, Carys J. - Resisting "Sweat" and Refusing Feist: Rethinking Originality after CCH
In CCH Canadian Ltd. v. Law Society of Upper Canada, the Supreme Court of Canada ostensibly settled the debate between the “sweat school” and the “creativity school” regarding the meaning of copyright’s originality requirement. While rejecting a labour-based formulation of the originality standard, the Supreme Court also refused to adopt the “minimal degree of creativity” test established by the U.S. Supreme Court in the famous Feist case. The appropriate threshold for originality, according to the Supreme Court of Canada, “falls between these two extremes” and requires “an exercise of skill and judgment.” This paper explores the significance of the “skill and judgment” test by contrasting it with previous articulations of the standard in Canadian jurisprudence, and against the current approach to originality in the United Kingdom and the United States. In particular, it examines the theoretical, political, and pragmatic considerations that may explain the Court’s reluctance to explicitly include either “labour” or “creativity” among the relevant ingredients of original authorship. It suggests that the absence of these concepts is the key to understanding the nature and role of Canada’s new originality standard in copyright policy: When assessing copyrightability, Canadian courts should put aside both labour- and personality-based theories of entitlement. In this way, the CCH decision has the potential to clear the path for an instrumental application of the originality doctrine that furthers the public policy goals of the copyright system.

Koivurova, Timo & VanderZwaag, David L. - The Arctic Council at 10 Years: Retrospect and Prospects
This article provides a 10th anniversary assessment of the accomplishments and challenges still facing the Arctic Council, a cooperative regional forum established by the eight Arctic states pursuant to a declaration signed on 19 September 1996. A retrospective look is first given which highlights the two phases of region-wide cooperation in the Arctic, initial cooperative efforts under the Arctic Environmental Protection Strategy followed by the founding of the Arctic Council and the implementation of its programs and projects. The paper then turns to examine future prospects for the Arctic Council and regional cooperation. The likely near term reality is described as ‘soft sleddings’ with the Arctic Council continuing to serve as a discussional and catalytic forum rather than a regulatory or decision-making entity. Implementing the actions urged in the Arctic Marine Strategic Plan and furthering climate change policy responses are two challenges emphasized. The paper then raises four ‘hard questions’ looming on the governance horizon. Is one or more legally binding agreements needed? If a shift towards ‘hard law’ occurs for the Arctic region, what type of treaty approach should be adopted? If a treaty approach is followed, of what should the details consist? How should issues pertaining to Arctic Ocean areas beyond national maritime zones be addressed? Three options for approaching governance of the Arctic ocean beyond national jurisdiction are canvassed. They include a law of the sea approach, a regional sui generis approach and a multilateral Arctic Ocean agreement.

Levy, Ron - Judicial Selection: Trust and Reform
The Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada held unprecedented public hearings in advance of the appointment of Justice Marshall Rothstein to the Court. The author assesses the work of the Committee using the interdisciplinary literature on assorted institutional design models and their effects on public trust and decision-maker trustworthiness. This literature can inform efforts to ensure that judicial selectors select, or aspire to select, new justices impartially. The Committee adopted a comparatively ineffective and risky model of democratization that relies on accountability tools such as political party détente. Past examples suggest that an alternative approach is preferable: Reforms should focus not on increasing accountability for selections but on building trust and trustworthiness in selections. The author offers specific recommendations to enhance trust and trustworthiness in the selection process using a permanent Supreme Court of Canada appointments body. The body proposed can enable robust rather than token levels of public involvement while preserving or broadening judicial independence.

Case Comments

Bereskin, Daniel R., Q.C. - The Protection of Famous Marks in Canada: Mattel and Veuve Clicquot
The Supreme Court of Canada has issued two important decisions relating to the protection of famous marks in Canada: Mattel, Inc. v. 3894207 Canada Inc. and Veuve Clicquot Ponsardin v. Boutiques Cliquot Ltée. Mattel relates to the famous mark BARBIE, and deals with a controversial decision of the Federal Court of Appeal, Pink Panther Beauty Corp. v. United Artists Corp. Veuve Clicquot also addresses the protection of famous trade-marks, but its principal importance relates to dilution under section 22 of the Trade-marks Act. Although in both cases the appeals by the owners of the famous trade-marks were rejected, these cases are likely to benefit the owners of famous trade-marks, if only to clarify what needs to be proven in a case where the accused goods or services are only remotely connected to the goods or services for which the plaintiff's mark has acquired fame. This article discusses both cases in the context of both likelihood of confusion and dilution.

Boyd, John-Paul - Tsunami in a Teapot: Leskun v. Leskun
In Leskun v. Leskun, the Supreme Court of Canada was asked to address the no-fault provisions governing awards of spousal support in s. 15.2(5) of the Divorce Act as a result of controversial comments by the British Columbia Court of Appeal which appeared to link the husband’s adulterous conduct during the marriage to the wife’s entitlement to support three years after trial. The Supreme Court of Canada’s decision distinguishes consideration of misconduct occurring during the marriage from consideration of the consequences of that misconduct following marriage, and concludes that the consequences of matrimonial misconduct may found an entitlement for support without the attribution of fault or blame to the payor. This article will review the peculiar history of the Leskun saga, discuss the court’s findings on the role of fault in the determination of claims for spousal support and examine the other point on which this judgment expands the law, the use of review provisions in final orders for spousal support.

Brown, Russell - The Constructive Taking at the Supreme Court of Canada: Once More, Without Feeling
This comment considers the state of Canadian takings law in the aftermath of the Supreme Court of Canada’s pronouncement in Canadian Pacific Railway Co. v. Vancouver (City), which represents the Court’s first consideration of “takings” in over 20 years. Specifically, it considers this decision’s implications for the “constructive” taking – also known as a “de facto” or “regulatory” taking – which arises where a public authority does not acquire a proprietary interest in the land but nonetheless regulates its use such that the landowner is, to a legally significant measure, deprived of his or her rights of use and enjoyment. As I demonstrate, the Court’s requirement that a constructive taking amount to an acquisition of a “beneficial interest in the property or flowing from it” collapses the distinction between the constructive taking and the actual physical expropriation of a proprietary interest (which is the paradigmatic de jure taking). As such, the Court has effectively abolished public authority liability in Canadian law for constructive takings. I conclude by looking beyond the dispute in CPR v. Vancouver to suggest that its greater significance may lie not so much in what the Court did as in what the Court failed to do, being to rationalize judge-made takings law with investor protection obligations which Canada has undertaken under Foreign Investment Protection and Promotion Agreements, notably NAFTA.

Law Reform Comments

de Beer, Jeremy - The Rights and Responsibilities of Biotech Patent Owners
Property law, specifically intellectual property (IP) law, has had to face
questions such as: what rights does a patentee have concerning the second,
third and subsequent generations of progeny of transgenic organisms
containing a patented biotechnological invention? Among the questions faced
in tort law is the inverse: what are the responsibilities of a patentee when
such things cause harm to persons, property or economic interests? Both
questions are reflective of the social, legal, ethical and commercial
controversies that permeate the topic of biotechnology.

These questions were considered, separately, in two recent Canadian cases
about agricultural biotechnology. In Monsanto v. Schmeiser, Monsanto argued
successfully that ownership of a patent for a molecularly engineered plant
gene and transgenic plant seed entitled it to full control over stray plants
and progeny containing the gene, even though a plant itself is not
patentable subject matter under Canadian law. In Hoffman v. Monsanto, a
group of organic farmers argued unsuccessfully that patent ownership also
entails responsibility for damages to organic crops and crop markets caused
by straying genetically modified organisms. In short, Canadian courts have
held that a patent entitles its owner to all of the rights but none of the
responsibilities of ownership.

These two cases demonstrate why biotechnology issues must be studied as part
of a bigger picture. Looking at them through the lens of patent law or tort
law in isolation is inadequate, yet little work has been done on the link
between IP rights and tort liabilities in biotech. Only a handful of
scholars have juxtaposed these issues. No judge has yet conducted a
thorough and comprehensive legal analysis. Questions about rights and
responsibilities are too often examined independently of each other.
Moreover, extra-legal considerations, including philosophical, ethical,
economic, environmental and other social concerns, are too often ignored.

Seen in a broader light, the lack of legal liability that results from the
Hoffman decision is part of a trend away from accountability for
technological innovation. At the same time, there is a trend toward
according technological innovators more numerous and powerful property
rights. Patentees are quick to invoke the power of property rhetoric to
expand and protect their rights, but when it comes to the liabilities
ordinarily associated with ownership, the tune suddenly changes. This paper
examines one aspect of that trend: the rights and responsibilities of
biotech patent owners in the field of agriculture.

Part I demonstrates the existence of a legal disequilibrium by comparing and
contrasting the Schmeiser and Hoffman decisions. Part II looks at various
ways in which to restore equilibrium and the consequences of doing so. One
option is to narrow the scope of patent rights. Another is to recognize
responsibilities. Practical and policy considerations suggest the latter
response is more appropriate. The thrust of my message throughout this paper
is that biotech patent owners must start owning up to their ownership
obligations.

Li, Jinyan - Canadian Taxation of International Mobile Workers: A Case for Reform
This paper argues that the increasing international mobility of Canadian workers makes it imperative to re-examine the Canadian tax policy that was largely designed for an immobile workforce. It discusses several major causes of double taxation of international mobile and explains why such double taxation is bad policy. It presents several ideas for reforming domestic law and treaty law in order to minimize such double taxation and to improve Canada’s competitiveness in retaining and attracting skilled workers.

Recent Legislation Comments

Lidstone, Donald - Recent British Columbia Legislation: The Community Charter

Paterson, Robert K. - Totems and Teapots: The Royal British Columbia Museum Corporation
In line with a trend to increase the possibilities of institutions such as museums becoming more financially self-sufficient, British Columbia passed legislation in 2003 to make the Royal British Columbia Museum in Victoria a Crown corporation. Unlike their American counterparts, which are usually organized as charitable trusts, museums in Canada mostly rely on government financial support and their directors are probably not subject to the high legal standards of trustees. The rarity of judicial precedent and other factors has led to voluntarily binding codes of ethics developed by professional museum organizations playing a large role in determining the conduct of museum management. These codes have been especially significant in relation to the sale by museums of objects in their collections. Like many other Canadian museums, the Royal BC Museum faces ongoing challenges, including the ethical and legal issues surrounding the return of cultural material to Aboriginal peoples.

Article abstracts - Volume 40, Number 1

Thu, 02 Aug 2007 12:50:20 -0800

Click on the link to see the article's abstract:

Call for submissions

Mon, 23 Jul 2007 09:45:58 -0800

The University of British Columbia Law Review invites you to submit articles to be considered for publication. We are a bi-annual, peer-reviewed journal interested in receiving articles that stimulate debate and encourage discussion on the current state of the law in Canada and abroad.

SUBMITTED ARTICLES: Articles should not exceed 15,000 words, including footnotes, and must conform to the Canadian Guide to Uniform Legal Citation (6th Edition). Submissions must also include an abstract of not more than 250 words.

Please note that the UBC Law Review does not accept simultaneous submissions.

HOW TO SUBMIT: Please e-mail one electronic copy (in Microsoft Word format) of your manuscript to the following address: lawrev@interchange.ubc.ca

Alternatively, you may submit three hardcopies and one electronic copy (in Microsoft Word format) of your manuscript to the following mailing address:

UBC Law Review
1822 East Mall, Room 175
Vancouver, British Columbia
Canada V6T 1Z1
Attention: Editor-in-Chief

DEADLINE: The UBC Law Review welcomes submissions year-round.

Should you have any questions or concerns, please contact our office:

Telephone: (604) 822-3066
Fax: (604) 822-4633
E-mail: lawrev@interchange.ubc.ca

For more information, visit our website at www.ubclawreview.org.

Advertising Rates

Tue, 10 Jul 2007 14:07:04 -0800

Notices of any size may be placed in the U.B.C. Law Review. The rates for issue 41:1 (Spring 2008) issue are:

$175/quarter page
$300/half page
$450/full page
$550/inside cover
$650/outside back cover

To inquire about advertising with the Law Review please send us an e-mail at lawrev@interchange.ubc.ca.

For advertising in issue 41:2 (Fall 2008), please contact:

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Our Advertisers

Tue, 10 Jul 2007 13:57:23 -0800

Thank you to our advertisers for Volume 40!

Issue 40:1

Mon, 28 May 2007 15:12:31 -0800

The U.B.C. Law Review is pleased to announce that Issue 40:1 of the Law Review is forthcoming. The issue will be our first since issue 39:2, released in September 2006. To download a copy of the cover, click here.

TSL pp. GHI 56-57

Wed, 23 May 2007 13:12:57 -0800

Attached are pp. GHI 56-57 which were missing from some copies of the TSL. To save to disk either:

(1) right-click on the link below, and select "Save As", saving it on your desktop.
(2) click on the link below until the pages open and go to the File menu, then select "Save As," saving it on your desktop.

TSL Pages.

How Alumni Can Help

Wed, 04 Apr 2007 16:14:18 -0800

As mentioned, in anticipation of the Law Review’s 50th anniversary, we are creating a historical archive. To help us to create this archive we are asking you to share your memories of and experiences with our publications by completing our Questionnaire (available below). If possible, we would also like you to send us a recent photo that we could put on our website, and we would also like you to grant us permission to post your law school photo on our website. We want to create an archive collection, to ensure our institutional memory is preserved and expanded, and we also would like for someone to write an article on the history of the organization, for either our journal or the law school’s alumni magazine.

We are a non-profit organization that operates independently from the law school, which is a unique feature that sets it apart from other peer-reviewed, student-run journals, and we want to preserve this important part of the organization’s identity. To this end, we have listed some of the ways that you can support the Society:

We would like to encourage you to become a regular subscriber to the journal and TSL, if you are not already. As Law Review Alumni, we are offering you the student rate of $25 for your first year’s subscription of the journal, after which the rate will return to our regular rate, which is currently $40 per volume (this includes two issues plus any special issues). If you are interested, please complete and return the Information Request Form available below.
We invite you to consider advertising in the Law Review. Please see our Advertising page for current rates.
Please also consider becoming a Patron of the Law Review. Patrons are listed prominently in each issue and on the Law Review website. Starting this year, the list of patrons will also be added to the TSL. Each year one Law Review board member is awarded the “Patrons of the Law Review” scholarship.

We look forward to receiving your completed Questionnaire and Information Request Form.

Thank you for your time.

The following documents are available in Microsoft Word Format:
Download Questionnaire
Download Information Request Form

What We Have Been Doing in 2006/2007

Wed, 04 Apr 2007 16:09:25 -0800

The overall approach for this year has been, in addition to publishing the Table of Statutory Limitations and two issues of the UBC Law Review, to work on creating a solid foundation that will enable the Law Review to continue to sustain itself long into the future. This plan has two key components. One part has entailed cementing our journal’s long and significant history, to foster a sense of pride amongst members, ensuring they understand the importance of their continuing the tradition of excellence that our alumni members began. The other part has involved striving to be a better-functioning Society, generally.

To protect our journal’s and Society’s future, we have undertaken a variety of projects. The Society has added two Special Project Coordinators, whose work will ensure that all of our projects are completed. Some of the projects include:

Researching and creating a historical archive collection, in preparation for the Law Review’s 50th anniversary (2009), to be donated to the UBC library once complete.
Researching and analyzing what other journals are doing, in terms of funding, board positions, substantive journal and copyright issues, and many other areas.
Creating an on-line index of past Law Review articles, which should be available by the end of this school year.

Changes have been made to the board’s positions in recent years. This year, the Society added a new position: the Recent Legislation & Law Reform Editor. This Editor’s new section features comments on both law reform issues and recent legislation. This will give our journal an edge over other journals by bridging the gap between the academic world and the practice of law. We hope that papers in this section will assist and encourage lawyers by instructing them on how to use and even promote development of the current legal system. By adding a new section instead of changing the types of articles we currently publish, we will still maintain the Law Review’s traditional academic focus. Also this year, the editorial board members’ titles were changed to bring them in line with other journals, to better reflect the work being done. The Senior Editor title has changed to Editor in Chief, and the various Associate Editors’ titles have changed to Editors. The new Special Project Coordinator positions will only be filled when a board feels that there is a sufficient amount of work to be done to justify having one or two people hold this title. Also, in 2005/06, two new positions were added to the board: the Referee Coordinator and the Production Editor.

We are dedicating volume 40:2 to Dugald Christie, a lawyer-advocate who dedicated his life to promoting access to justice for everyone. He founded the Western Canada Society to Access Justice, which has opened and currently operates dozens of pro bono clinics in British Columbia and across Western Canada. His tax challenge will be heard by the Supreme Court of Canada in late March 2007. Mr. Christie died tragically on July 31, 2006 while bicycling to Ottawa to petition the government for legal reform. This special access to justice issue will feature articles on a variety of topics that were important to Mr. Christie.

We will also be publishing our annual Table of Statutory Limitations (TSL). The TSL is a compendium of the legal limitation periods of various statutes. The TSL features the following: Limitation Act, Small Claims Court Rules, Supreme Court of British Columbia Rules, and British Columbia Court of Appeal Rules. Another decision made this year has been to add a new section to the TSL in 2008, which will contain the limitation acts’ limitation periods for all of the provinces and territories in Canada. It is hoped this will lead to an increase in subscribers.

The U.B.C. Faculty of Law Development Office has also been a great help to the Law Review this year and we would like to thank them for their generous support.