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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Updated on August 2, 2007 12:59 PM | Permalink