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  • $75.00
    Consultation Update: Emerging & Persistent Issues Using Haida Nation v British Columbia’s vision of the duty to consult as existing along-side the negotiation process (aiming at a more fulsome settlement of aboriginal rights claims), this paper first provides an overview of the duty to consult and the state of the law. The author then considers the particular issues of the role of tribunals, agencies, and the identification of parties to a consultation. In conclusion, the author discusses the theme of reconciliation that continues to evolve around the duty to consult. Section 35(1) of the Constitution Act, 1982, the Duty to Consult, and the Government of Alberta’s First Nations Consultation Policy This paper argues that Alberta’s approach to First Nation consultation falls short of fulfilling the province’s constitutional obligation in this regard, but the development and management of public lands and resources appears to operate smoothly and efficiently, without any serious legal challenges or significant delays in this process. After a thorough summary of the current state of Canadian law regarding consultation and accommodation as well as Alberta’s policy and procedures, this paper evaluates Alberta’s policy and practices in light of the state of the law, the current operation of land and resource dispositions, and regulatory processes. Finally, this paper addresses the question of whether the conceptual failings of Alberta’s approach regarding consultation and accommodation should be a matter of serious concern given the absence of significant practical problems in the regulatory system. These papers were presented at the Constitutional Law Symposium in September 2012.  
  • This paper examines the Supreme Court of Canada’s decision in Reference Re Securities Act that the draft legislation, proposing a single federal regulator, was unconstitutional. After briefly outlining the reasons behind the Supreme Court’s ruling followed by an overview of the draft legislation and the Court’s methodology for testing the validity of federal power, this paper concludes by explaining the Court’s rationale for deciding against the draft and proposing three immediate lessons from this particular case. This paper was presented at the Constitutional Law Symposium in September 2012.  
  • This paper grounds its argument in the new requirement born from Reference re Assisted Human Reproduction Act, which regulates Parliament’s power to enact criminal law with respect to health matters. The author argues that this new requirement provides a useful demarcation between federal and provincial interests in health, and, at a minimum, marks a move towards finding a principled solution to federalism disputes over health regulation. This paper was presented at the Constitutional Law Symposium in September 2012.  
  • This paper proposes that the decision of the Supreme Court of Canada in Canada (Attorney General) v PHS Community Services Society to base its decision on section 7 of the Charter rather than on federalism arguments in the case was the incorrect tactic for reaching the end result. After explaining how the section 7 reasoning was problematic and did not engage fully in the federalism analysis involved in the case, the author concludes his position with a practitioner-focused objective by offering suggestions for constitutional law argumentation and advocacy after the PHS decision. This paper was presented at the Constitutional Law Symposium in September 2012.  
  • This paper examines related trends regarding approaches to equality rights and their successes in the claims of vulnerable individuals and groups seeking to redress the harms of government action or inaction in the case law on sections 7 and 15 of the Charter. After a thorough analysis of these sections in various case studies, this paper concludes with a comparison between sections 7 and 15, cautioning Canadian courts to give the harms of discrimination equal respect and recognition under section 15 of the Charter. This paper was presented at the Constitutional Law Symposium in September 2012.  
  • Using Pridgen v University of Calgary to ground its analysis, this paper seeks to address the following question: “What is the appropriate approach when a judge is presented with a Charter issue?” In dialogue with this question, this paper provides a brief outline of the decisions in Pridgen, describes both the American debate over judicial minimalism and the more limited Canadian scholarship, and concludes by evaluating the methodologies of the judges in Pridgen and the role of judicial minimalism in Canadian judicial decision-making. This paper was presented at the Constitutional Law Symposium in September 2012.  
  • This paper provides a brief canvass of the history and rationale for the theory of stare decisis, distinguishes its variants of precedent (horizontal and vertical), and highlights the role precedent played in Canada v Bedford and Carter v Canada, among other recent cases. The author concludes with some observations of the factors which appear to drive courts to overturn previously settled jurisprudence. This paper was presented at the Constitutional Law Symposium in September 2012.  
  • This paper begins with a brief overview of the social media websites that employment lawyers should have a working knowledge of, and explores the nature of potentially relevant evidence found on these websites. The author outlines of how social media evidence can be preserved before and throughout the litigation process by providing an overview of spoliation and preservation orders. The paper concludes with a discussion of how lawyers must ‘click with caution’ when gathering social media evidence due to privacy and ethical issues. The admissibility of social media evidence obtained through improper means is also discussed. This paper was presented at the Employment Law Update program held in October and November of 2012.  
  • $55.00
    This paper discusses current issues being addressed by human rights tribunals, arbitrators and the courts with respect to the employers’ duty to accommodate. The author provides an analysis of case law which highlights the challenges faced in attempting to accommodate employees with complex needs. In particular, the paper provides an overview of recent cases which discuss the problem of identifying the employer to the accommodation process where conduct arises from a party who would not normally be considered an employer of the complainant. The author concludes with a brief overview of ‘family status’ as a prohibited ground of discrimination, including a discussion of Devaney v ZRV Holdings Ltd which looked at an employee’s need for a flexible work arrangement to care for his elderly mother. This paper was presented at the Employment Law Update program held in October and November of 2012.