Irwin Law

Taxation and Valuation of Technology

Tue, 25 Mar 2008 00:00:00 GMT

Taxation and Valuation of Technology: Theory, Practice, and the Law, edited by James L. Horvath and David W. Chodikoff, is a comprehensive and authoritative examination of practical, technical, and legal aspects of business valuation and taxation in the dynamic technology sector. The book features contributions by distinguished judges, leading academics, and international experts in business valuation and tax law.

Contents

Foreword

Hon. Morris J. Fish, Supreme Court of Canada

Preface

Introduction

Part One: Taxation

1. The Judicial Determination of Fair Market Value

Hon. Karen R. Sharlow

2. What to Expect from the Tax Court in a Lengthy Trial

Hon. Campbell Miller

3. Effective Conduct of Commercial Litigation: A Judge’s Perspective

Hon. Ian H. Pitfield

4. Tax Shelters, Technology, and the Future?_ The Demise of the Software Tax Shelter and Lessons to be Learned for the Investor

David W. Chodikoff & Natalia E. Bitton

5. It’s the Destination, Not the Journey: The Significance of the Tax Assessment Process in Tax Appeals

Harry Erlichman & Elizabeth Chasson

6. Permanent Establishment and the Challenges of ElectronicCommerce

David E. Spiro & Kate Lazier

7. Bet on It: The Taxation of Online Gaming

Benjamin Alarie & Alex Igelman

8. Tax Treaty Treatment of Royalty Payments from Low-Income Countries: A Comparison of Canada and Australia’s Policies

Kim Brooks

9. Tax Discrimination and the Trade in Services between Canada and the United States: Deciphering the Landscape

Catherine Brown & Christine Manolakas

10. R&D Credits: Reducing the Cost of Innovation

Ken Murray & Natan Aronshtam

11. Interpretative Issues Regarding SR&ED Tax Credits: An Overview of Recent SR&ED Tax Cases and Related Implications for Claimants

David Sabina

12. Inbound Transfers of Technology

Brian D. Segal

13. Alternate Models for Acquiring Technology Products and Services

J. Fraser Mann

14. “Old Wine in New Wineskins”?_ Indirect Tax Challenges for International Transfers of Intangible Property 341

Jim Vincze & M. Craig Robertson

15. Transfer Pricing the Technology

Muris Dujsic & Tony Anderson

16. The Evolution of the Use of Cost Sharing Arrangements in International Income Tax Planning and New Indications for Valuing Intellectual Property

Keith Reams, Alan Shapiro, Laura Clauser, Jon Hakken, Ahmad Keshk, & Mark Klitgaard

17. The U.S. International Taxation of the Transfer of Technology by American Enterprises: A Primer for the CFO, Tax Director, and Foreign Tax Advisor

David S. Kerzner

18. Going Global: Some Foreign Tax Fundamentals for the

Expanding Technology Enterprise

Christopher Grasset

Part Two: Valuation

19. Valuation Methodologies: The Current Art and Science

James L. Horvath & Tim Dunham

20. The Invisible Path: Valuing Technology

James L. Horvath & Richard Ellsworth

21. Valuation of Biotechnology Companies and their Assets

Jeremy Webster & Bill Stamatis

22. Transfer and Valuation of Biomedical Intellectual Property

Cristina Thalhammer-Reyero

23. Protected Assets: Valuing Patents

James L. Horvath & Steven Hacker

24. Discounts and Premiums: Artistic Licence and Science

James L. Horvath & Tim Dunham

25. Valuing Businesses in the Ever-changing Global Marketplace

James L. Horvath

26. Tips from the Field

James L. Horvath & Tim Dunham

27. Technology Valuations and the Canada Revenue Agency

Dennis Turnbull

28. The Investor’s Approach to Valuation of Early-Stage Technology Companies

John Hague & Roger Wilson

29. Tips from the Top

30. Intellectual Property and Damage Quantification

Jeffrey Harder, Joelle Gott, J. Kevin Wright, & Paul R. Albi

31. Growth by Design: How Good Design Drives Value

Maneesh Mehta

32. Technology Transfer: An Overview with a Government Research Perspective, or, Sometimes it is a Platypus not a Duck!

Stan Benda

Contributors

Remedies

Thu, 03 Jan 2008 00:00:00 GMT

The law of judicial remedies, which includes the law of damages, ranges over the entire field of substantive private law, including the law of contract, tort, and property. In a pragmatic sense, an examination of the issue of remedies is crucial to civil litigators in that it provides critical insights into specific legal rules and arrangements. From a theoretical perspective, an understanding of the principles governing the choice of remedies and the methods of quantifying damages reveals much about the nature of the common law process. Remedies: The Law of Damages is both a succinct handbook for the practitioner and a rich entry point to the study of judge-made law.

Unlike other texts, this book takes a functional and interest-based approach to the subject. The book is organized not so much according to whether the cause of action is in tort or contract, but rather according to the remedial purposes pursued and the interests at stake. Part One of the book deals with compensation, providing separate chapters that focus on the way in which courts treat different interests: economic, proprietary, physical, and intangible. Part Two describes the function of other non-compensatory damages such as restitutionary, punitive, and nominal damages. In both cases the authors explain when a particular remedy is most appropriate and how that remedy is formulated and applied once chosen. Part Three of the book looks at the limiting or balancing principles that protect the defendant from undue liability, including rules regarding proof and certainty, remoteness, mitigation of damages, and judicial oversight of remedy stipulation.

The second edition incorporates many new cases that have affirmed, clarified, or changed the law on damages. Examples include Whiten v. Pilot Insurance and Fidler v. Sun Life Co. of Canada on availability of non-pecuniary damages for breach of contract; Bank of America Canada v. Mutual Trust on restitutionary remedies for breach of contract; Resurfice Corp. v. Hanke on causation; and M.B. v. British Columbia on deductibility of welfare benefits. Developments in English law have also been noted; Cases include Fairchild v. Glenhaven Funeral Services, Barker v. Corus, and Lagden v. O'Connor.

Summary Table of Contents

Acknowledgments
CHAPTER 1: Introduction

PART ONE: COMPENSATORY DAMAGES
CHAPTER 2: Compensation for Harm to Economic Interests
CHAPTER 3: Compensation for Harm to Property Interests
CHAPTER 4: Compensation for Personal Injury
CHAPTER 5: Compensation for Death
CHAPTER 6: Compensation for Harm to Intangible Interests: Non-Pecuniary and Aggravated Damages

PART TWO: NON-COMPENSATORY DAMAGES
CHAPTER 7: Awards Measured by Benefit: Restitution
CHAPTER 8: Punitive Damages
CHAPTER 9: Nominal Damages and Contemptuous Damages

PART THREE: LIMITING PRINCIPLES
CHAPTER 10: Certainty and Causation
CHAPTER 11: Remoteness of Damages
CHAPTER 12: Mitigation, Avoided Loss, and Time of Assessment
CHAPTER 13: Deductions from Damages: Collateral Benefits
CHAPTER 14: Judicial Oversight of Remedy Stipulation

Table of Cases
Index

Law Society of Upper Canada Special Lectures 2007

Tue, 18 Dec 2007 00:00:00 GMT

This volume represents the first Special Lectures devoted exclusively to employment law since 1976. An accomplished faculty of senior lawyers provides an in-depth analysis of the pivotal developments in employment law in the last 30 years. This collection includes a comprehensive examination of the leading cases and a thorough discussion of the central themes in all areas of employment law. Law Society of Upper Canada Special Lectures 2007 is an up-to-date, exhaustive review of employment law concepts.

Program Chairs:
The Honourable Mr. Justice Randall Scott Echlin, Superior Court of Justice (Ontario)
Chris Paliare, LSM, Paliare Roland Rosenberg Rothstein LLP

Table of Contents

CHAPTER 1: From Master and Servant to Bardal and Beyond: 200 years of Employment Law in Ontario, 1807 to 2007
The Honourable Mr. Justice Randall Scott Echlin (Superior Court of Justice, Ontario)

CHAPTER 2: Employee Status: Independent Contractors and Alternative Work Relationships
Allison Taylor (Stringer Brisbin Humphrey Management Lawyers)

CHAPTER 3: Obligations, Pitfalls, and Contradictions in the Law of Hiring, Negligence, and Performance Reviews
Peter Israel & Carita Pereria (Israel Foulon LLP)

CHAPTER 4: Employment Contracts: Enhancing Enforceability Through Drafting and Implementation
Christine M. Thomlinson (Rubin Thomlinson LLP)

CHAPTER 5: Workplace Harassment Law in Ontario
Soma Ray-Ellis & Matthew A. Biderman (Paterson, MacDougall LLP)

CHAPTER 6: Disability and Work: The Transformation of the Legal Status of Employees with Disabilities in Canada
Professor Michael Lynk (Faculty of Law, University of Western Ontario)

CHAPTER 7: Changing Employers—The Employment Implications of the Sale of a Business—Common Law and Statutory Rights and Obligations
Ian J. Roland & Danny Kastner (Paliare Roland Rosenberg Rothstein LLP)

CHAPTER 8: Employee Protection in Bankruptcy
Connie Reeve (Blake, Cassels & Graydon LLP)

CHAPTER 9: Enforcement Restrictive Covenants
Malcolm J. MacKillop (Hodgson Shields DesBrisay O'Donnell MacKillop Squire LLP)

CHAPTER 10: Directors' Liablity
Robert L. Armstrong (Ogilvy Renault LLP)

CHAPTER 11: The Evolution of Inducement
Brian A. Grosman, Q.C. & R. Mark Fletcher (Grosman, Grosman & Gale LLP)

CHAPTER 12: Just Cause: The Capital Punishment of Employment Law
Matthew L.O. Certosimo (Borden Ladner Gervais LLP)

CHAPTER 13: Ancillary Claims for Damages in Employment Law
Robert L. Colsen & A. Jane Milburn (Teplitsky, Colson LLP)

CHAPTER 14: Anticipatory Breach in the Employment Context
Mary Beth Currie (Bennett Jones LLP)

CHAPTER 15: A Remedy for the Abused Employee: The Evolution of the Law of Contructive Dismissal
Janice Rubin & James Heeney (Rubin Thomlinson LLP)

CHAPTER 16: Privacy in the Workplace
Barry A. Kuretzky & Monty Verlint (Kuretzky Vassos LLP)

CHAPTER 17: Class Actions in Employment Law
Michael D. Wright (Cavalluzzo Hayes Shilton McIntyre & Cornish LLP)

CHAPTER 18: Risk Management, Communication with Clients, and Documentation
Larry A. Banack & Nancy M. Shapiro (Koskie Minsky LLP)

Annotated Safety, Rehabilitation and Compensation Act 1988

Fri, 07 Dec 2007 00:00:00 GMT

The eighth edition of this book is an indispensable reference for all those Australians closely involved in advising and dealing with the compensation and rehabilitation of employees covered by the Commonwealth Safety, Rehabilitation and Compensation Act 1988: human resource managers; lawyers; claims and review staff in Comcare and other determining authorities; the Military Rehabilitation and Compensation Commission; licensees; union organisers; Tribunal members; and individual employees of the Commonwealth, its statutory authorities, and licensees under the scheme.

The 8th edition includes:

the Safety, Rehabilitation and Compensation Act 1988 reproduced in full, consolidated as at 1 November 2007;
comprehensive annotations, organised on a section by section basis, covering all significant decisions of the High Court, the Federal Court, the Administrative Appeals Tribunal, and the State Supreme Courts to 1 October 2007;
a table of cases (more than 900 cases cited), table of statutes, and index;
a practitioner's guide by Allan Anforth, a Canberra barrister with extensive experience in the compensation jurisdiction;
annotations that include full details of Instruments gazetted under the Act;
annotations that include cases on the Seafarers Rehabilitation and Compensation Act 1992 applicable to the SRC Act; and
consideration of military compensation arrangements, including the Military Compensation Scheme.

This edition also includes consideration of issues which are the subject of extensive litigation under the Act, including:

permanent impairment claims and interpretation of the Approved Guide (Canute v Comcare (2006));
licensees under the Act (Attorney-General (Victoria) v Andrews (2007));
the causal test for diseases (Comcare v Sahu-Khan (2007) and new s 5B;
the scope of Tribunal review (Telstra Corporation Limited v Hannaford (2006), Abrahams v Comcare (2006);
the inclusion of overtime in normal weekly earnings (Telstra Corporation Limited v Peisley (2006));
costs in the Tribunal, including Calderbank offers (Perry v Comcare (2006)); and
compensation for permanent impairment arising from an injury suffered before 1 December 1988.

Table of Contents

Editorial Contributions
Contributors
Acknowledgments
Currency of Legislation and Annotations
Key to Case Citation
Abbreviations and Acronyms
List of Tables
Table of Cases
Table of Statutes

Introduction

Safety, Rehabilitation and Compensation Act 1988
TABLE OF PROVISIONS
PART I - Preliminary
PART II - Compensation
PART III - Rehabilitation
PART IV - Liabilities Arising Apart from this Act
PART V - Claims for Compensation
PART VI - Reconsideration and Review of Determinations
PART VII - Administration and Finance
PART VIII - Licences to Enable Commonwealth Authorities and Certain Corporations to Accept Liabillity for, and/or Manage, Claims
PART IX - Miscellaneous
PART X - Transitional Provisions, Consequential Amendments and Repeals
PART XI - Operation of this Act in Relation to Certain Defence-Related Injuries and Deaths etc
SCHEDULE
CONSEQUENTIAL AMENDMENTS

Safety, Rehabilitation and Compensation Regulations 2002

Practitioner's Guide

APPENDIX 1: Legislative History - Safety, Rehabilitation and Compensation Act 1988
APPENDIX 2 - Notices of Declaration - Safety, Rehabilitation and Compensation Act 1988
APPENDIX 3 - Notices of Declaration - "Commonwealth Authority" - s 4(1)
APPENDIX 4 - Notices of Declaration under s 5(6)
APPENDIX 5 - Declarations under s 7(1)
APPENDIX 6 - Notices of Declaration - Australian Capital Territory
APPENDIX 7 - Corporations Licensed Under Part VIII of the Act
APPENDIX 8 - Safety, Rehabilitation and Compensation Directions 2002
APPENDIX 9 - Defence Determination 2000/1
APPENDIX 10 - SRC Act Reviewable Decision Protocol
APPENDIX 11 - Internet Sites Relevant to Commonwealth Compensation

Index

Understanding Ethics

Fri, 30 Nov 2007 00:00:00 GMT

We experience unprecedented freedom of moral and consumer choice alongside intrusive regulation of our day-to-day activities. Our major constraints are peculiarly modern—economic expectations, not knowing what to do, or a profound awareness of the impact of our personal and national decisions on others. Understanding Ethics introduces the frameworks of moral philosophy to analyse contemporary moral issues and perennial human dilemmas.

While the early chapters, which provide the theory, remain substantially the same, the rest of the book has been expanded from ten chapters to fourteen. Reflecting serious issues of our times, a new chapter on War, Terrorism and Violence has been provided. In addition, Noel Preston has undertaken a complete revision, updating his work to reflect developments in:

Key bioethical issues
- stell cem research, cloning, and genetic patents
- genetically modified cropping
- biodiversity
- impact on developing countries
Key themes in education and the workplace
- ethics for teachers and schools
- ethics of disciplinary processes
Global themes
- ethics of population and poverty
- global governance and global citizenship
War, terrorism, and violence
- capital punishment
- war, including "just war theory"
- terrorism and torture)
Environmental themes
- Earth Charter and eco justice
- animal rights
- ethics, global warming, and energy policy
Sexuality
- same sex marriage
- human rights

Summary Table of Contents

PART A: WHAT IS ETHICS?
CHAPTER 1: The Ethical Challenge
CHAPTER 2: Encountering Ethics
CHAPTER 3: Ethical Theory: An Overview
CHAPTER 4: Responsible Ethical Decisions

PART B: WHAT ARE THE ISSUES?
CHAPTER 5: Truthtelling and Honesty
CHAPTER 6: Sex, Love and Morality
CHAPTER 7: Life and Death: Bioethical issues
CHAPTER 8: War, Terrorism and Violence
CHAPTER 9: Public Responsibility and Political Ethics
CHAPTER 10: Ethics in Business and the Professions
CHAPTER 11: Environmental Ethics
CHAPTER 12: A Global Ethic for a Global Society

PART C: HOW TO CULTIVATE AN ETHICAL LIFE
CHAPTER 13: Values education
CHAPTER 14: Sustaining the Good Life
Index

National Security Law

Fri, 30 Nov 2007 00:00:00 GMT

National Security Law is a comprehensive handbook that focuses on the law and legal instruments governing the Canadian state’s response to events that jeopardize its "national security." Specifically, these are events or plausible threats with the potential to inflict massive injury on life and property in Canada—terrorism, natural disasters and epidemic disease, and foreign attacks and domestic insurrections.

National security law is governed by a vast array of federal and provincial statutes. But this text, part of Irwin Law’s Essentials of Canadian Law series, also draws on core international, constitutional, and common law doctrines and the comparative legal experience of other states. In addition to describing in detail the applicable legal principles, the book flags key dilemmas and challenges that run through national security law. It also critically assesses certain issues of contemporary relevance, such as the use of armed force, torture, government secrecy, surveillance, intelligence information sharing, and detention without trial.

National Security Law is divided into three main parts along the following themes:

national security structure (that is, the special institutional infrastructure—both national and international—set up to deal with national security issues);
national security objectives (that is, the law related to several specific threats that the state seeks to curb or forestall, including terrorism, weapons proliferation, political emergencies and natural disasters); and
national security techniques (that is, the law governing such practices as government secrecy, surveillance, intelligence sharing, detention, and interrogation).

The book is up to date through August 2007, but also incorporates key developments that arose during the production process through to October 2007. In addition, author Craig Forcese has created an on-line blog describing and assessing ongoing developments in the area of national security law: www.nationalsecuritylaw.ca.

Detailed Table of Contents (PDF)

Summary Table of Contents

Preface

PART ONE: SETTING THE STAGE
CHAPTER 1: Defining National Security
CHAPTER 2: Dilemmas in National Security

PART TWO: NATIONAL SECURITY STRUCTURE
CHAPTER 3: The Institutional Framework for National Security Law
CHAPTER 4: The Institutional Framework in Times of Emergency

PART THREE: KEY NATIONAL SECURITY OBJECTIVES
CHAPTER 5: Protecting against International Insecurity and Armed Attack
CHAPTER 6: Countering Terrorism at the International Level
CHAPTER 7: Countering Terrorism at the National Level
CHAPTER 8: Limiting Proliferation of Weapons of Mass Destruction
CHAPTER 9: Protecting Public Safety and Health

PART FOUR: NATIONAL SECURITY TOOLS AND TECHNIQUES
CHAPTER 10: Secrecy
CHAPTER 11: Surveillance
CHAPTER 12: Intelligence Sharing
CHAPTER 13: Interception and Interdiction
CHAPTER 14: Detention
CHAPTER 15: Interrogations

Looking South

Fri, 02 Nov 2007 00:00:00 GMT

Australia has a long, rich, and significant history in Antarctic affairs. Since 1933 Australia has asserted a claim to 42 percent of the continent as the Australian Antarctic Territory. Australia was an original signatory to the 1959 Antarctic Treaty and has subsequently played an active role in international governance of Antarctica under the Antarctic Treaty System (ATS).

Almost half a century after the adoption of the Antarctic Treaty, and in the first decade of the 21st century, Antarctica is better known&x#02014;but still not completely understood&x#02014;to science. It has been designated a natural reserve devoted to peace and science, and whilst some matters, such as mining, have been put on hold, other issues present both continuing and new challenges. These challenges include the implications for Antarctica of global climate change and, indeed, the continent’s role in the generation of the world’s weather; the environmental, political, and ethical implications of increasing human activity in the region; and the goals of maintaining or developing the most appropriate governance mechanisms given the complex legal circumstances.

In Looking South, leading academics and practitioners inspect Australia's contemporary agenda. They balance the preservation of geopolitical and environmental stability with the competing claims of science, tourism, fishing, bioprospecting, and mining. Can the Antarcitc Treaty System be preserved or should it be modified—and, if so, how?

Table of Contents

Foreword - Stuart Harris
Acknowledgements
List of Figures and Tables
About the Contributors
Acronyms

CHAPTER 1: Introduction - Julia Jabour, Alan D. Hemmings, & Lorne K. Kriwoken
CHAPTER 2: Flexing Australian Sovereignty in Antarctica: Pushing Antarctic Treaty Limits in the National Interest? - Donald R. Rothwell & Shirley V. Scott
CHAPTER 3: Setting and Implementing the Agenda: Australian Antarctic Policy - Marcus Haward, Rob Hall, & Aynsley Kellow
CHAPTER 4: Australian Influence in the Antarctic Treaty System: An End or a Means? - Stephen Powell & Andrew Jackson
CHAPTER 5: Enforcement and Compliance in the Australian Antarctic Territory: Legal and Policy Dilemmas - Tim Stephens & Ben Boer
CHAPTER 6: Antarctic Science in a Changing Climate: Challenges and Future Directions for Australia’s Antarctic Science and Policy - Rosemary A. Sandford
CHAPTER 7: Emerging Issues of Australian Antarctic Tourism: Legal and Policy Directions - Murray P. Johnson & Lorne K. Kriwoken
CHAPTER 8: Net Gain or Net Loss? Australia and Southern Ocean Fishing - Gail L. Lugten
CHAPTER 9: Saving Seabirds - Rob Hall
CHAPTER 10: The Great Whale Debate: Australia’s Agenda on Whaling - Julia Jabour, Mike Iliff, & Erik Jaap Molenaar
CHAPTER 11: Emerging Issues of Australia’s Sub-Antarctic Islands: Macquarie Island and Heard Island and McDonald Islands - Lorne K. Kriwoken & Nick Holmes
CHAPTER 12: A Caution on the Benefits of Research: Australia, Antarctica and Climate Change - Aynsley Kellow
CHAPTER 13: Globalisation’s Cold Genius and the Ending of Antarctic Isolation - Alan D. Hemmings
CHAPTER 14: Looking Forward, Looking South: An Enduring Australian Antarctic Interest - Alan D. Hemmings, Lorne K. Kriwoken, & Julia Jabour

References
Index

Hate Speech and Freedom of Speech in Australia

Thu, 01 Nov 2007 00:00:00 GMT

The general acceptance of hate speech laws in Australia opens intellectual space for the exploration of a range of interesting questions regarding the laws' operation, the underlying values they pursue, and the context within which hate speech is occurring: How should the regulation of hate speech be balanced against Australia's political and cultural commitment to freedom of speech? Who are the hate speakers and how does their speech manifest? What types of hate speech are targeted by existing laws? Do current laws catch newly emerging types of hate speech? How are these laws enforced? How can the laws be changed to improve governments' response to hate speech? How does the emergence of bills of rights affect the regulation of hate speech? How is the context within which hate speech occurs changing?

The book draws on a broad range of academic and practical experts to address these questions. The essays in the first part of the book set out the political and legal context for the operation of these laws. The chapters include consideration of the legal, policy, and historical context for vilification; the ways in which the language of hatred is changing; and a new look at the longstanding debate about the tension between freedom of speech and hate speech as a conflict between liberty and equality.

Part two addresses concrete issues relating to the operation of anti-vilification laws in practice. It contains chapters on issues ranging from the use of evidence in litigating hate speech complaints to the verbal abuse of groups or individuals under cover of religious freedom. In the final part, the essays consider hate speech regulation within a broader human rights framework, taking into account the emergence of bills of rights in Australian states.

Table of Contents

Contributors
Acknowledgments
Introduction - Katharine Gelber and Adrienne Stone

PART ONE: HATE SPEECH AND FREEDOM OF SPEECH IN AUSTRALIA: THE LANDSCAPE
CHAPTER 1: Speech and the Australian Legal and Political Landscape - Katherine Gelber
CHAPTER 2: The Volatility of Racism in Australia - Ann Curthoys
CHAPTER 3: The Reconstruction of Hate Language - Gail Mason
CHAPTER 4: How to Think about the Problem of Hate Speech: Understanding a Comparative Debate - Adrienne Stone

PART TWO: REGULATING HATE SPEECH IN PRACTICE
CHAPTER 5: Parliamentary Privilege and Homosexual Vilification - Lisa Hill
CHAPTER 6: Problems with Evidence in Hate Speech Cases - Kate Eastman
CHAPTER 7: Hate Speech, Sedition and the War on Terror - Simon Bronitt
CHAPTER 8: Salvation and the State: Religious Vilification Laws and Religious Speech - Lawrence McNamara

PART THREE: HATE SPEECH AND THE EMERGING HUMAN RIGHTS FRAMEWORK
CHAPTER 9: Parliamentary Deliberation about Religious Vilification Legislation - Simon Evans & Carolyn Evans
CHAPTER 10: Does a Bill of Rights Matter? Comparing Australia and New Zealand - Luke McNamara

Index
Table of Cases
Table of Statutes

In the Public Interest

Thu, 25 Oct 2007 00:00:00 GMT

The public has a right to be able to obtain legal assistance from someone who is independent of the state and the citizenry and who can, therefore, put their clients' interests first without fear of constraint or punishment. In other words, the public has a right to an independent Bar which can protect the rights of individuals from being violated by the state or other citizens.

The independence of the Bar, like the independence of the judiciary, is essential to the maintenance of the rule of law and the proper functioning of the administration of justice, as well as being one of the hallmarks of a free and democratic society. However, whereas the independence of the judiciary is expressly guaranteed by the constitution, the independence of the Bar does not enjoy any such straightforward protection. While the need for an independent Bar has never been greater, the fragility of this ideal, particularly when faced with urgent public policy priorities, is apparent. The independence of the Bar is only as strong as the belief on the part of lawyers, the public, the judiciary, and the government that it is worth preserving and promoting.

The rationale for the Law Society of Upper Canada launching the Task Force on the Rule of Law and the Independence of the Bar was to enhance public understanding of, and commitment to, the independence of the Bar and to contribute to the ongoing debate on the limits of this independence. The Task Force commissioned six background studies from some of the leading academic voices on the legal profession from across the country. The papers represent the most comprehensive and in-depth exploration of the concept of the independence of the Bar ever undertaken in Canada. They also represent a significant resource for those who wish to build on and extend this research.

The first paper examines the history of the ideas and practices associated with the independence of the Bar, in England and Canada, from about 1650 to 1950. The second looks at the experience of lawyers in different parts of the world, emphasizing that threats to an independent Bar are not the preserve of developing countries. It also examines alternative regulatory models in Australia and England. The next chapter reviews written and unwritten elements of the Canadian Constitution that provide protection for the principle of an independent Bar. It concludes that the legal profession's independence from government is protected but not its self-regulating status.

The fourth paper explores the impact of Parliament's security certificate procedures on solicitor-client confidentiality and examines alternative, less rights-infringing models. The following chapter explores the legal profession's resistance to legislation—in particular money-laundering and corporate governance—which would require lawyers to blow the whistle on client misconduct. The final chapter explores the relationship between images of lawyers in popular culture, the generalized negative public image of lawyers, and the perception people have of their own lawyers.

Cover Photo by Julia McArthur

Table of Contents

Task Force Membership

Statement of Principles on the Rule of Law and the Independence of the Bar
Protecting the Public through an Independent Bar: The Task Force Report
Preface - Lorne Sossin

4. The Independence of the Bar in Historical Perspective: Comforting Myths, Troubling Realities - Philip Girard
5. Death Squads and "Directions over Lunch": A Comparative Review of the Independence of the Bar - W. Wesley Pue
6. The Independence of the Bar as a Constitutional Principle in Canada - Patrick J. Monahan
7. The Independence of the Bar and the Public Interest: The Scope of Privilege and Confidentiality in the Context of National Security - Michael Code & Kent Roach
8. The Independence of the Bar and the Public Interest Imperative: Lawyers as Gatekeepers, Whistleblowers, or Instruments of State Enforcement? - Paul D. Paton
9. Polling and Popular Culture (News, Television, and Film): Limitations of the Use of Opinion Polls in Assessing the Public Image of Lawyers - Angela Fernandez

Contributors

Dans l'intérêt public

Thu, 25 Oct 2007 00:00:00 GMT

Le mandat principal du Groupe d'étude sur l'indépendance du barreau et la règle de droit était d'examiner les liens entre l'indépendance des juristes et la protection du public. Pour le Groupe d'étude, cette relation est fondamentale. Il commence son rapport par les mots suivants : « Un barreau indépendant signifie que chacun est en droit de faire appel à un avocat autonome qui peut présenter sa position sans crainte et avec zèle dans les limites de la loi; que le bénéfice du droit ne peut être refusé à personne et que personne ne peut échapper aux conséquences de la loi. » Le Groupe d'étude conclut toutefois que ce lien est fragile. Il repose sur l'engagement du public et sa confiance en un barreau indépendant. Ainsi, le Barreau justifie le lancement du Groupe d'étude par sa conviction que ses conclusions aideront le public à mieux comprendre l'indépendance du barreau et contribuera au débat en cours sur les limites de cette indépendance.

Le Groupe d'étude a décidé de demander à six théoriciens de premier plan sur la profession juridique de partout au pays d'écrire à propos de l'indépendance du barreau. Ces études de base représentent l'exploration la plus approfondie et détaillée du concept de l'indépendance du barreau jamais entreprise au Canada. Elles représentent également une excellente ressource pour tous ceux qui souhaiteraient à l'avenir prendre appui sur cette recherche ou la développer davantage.

Cover photo by Julia McArthur

Table des matières

Groupe d'étude

Énoncé de principes sur la règle de droit et l'indépendance du barreau
Un Barreau indépendant pour protéger le public : rapport du Groupe d'étude
Préface - Lorne Sossin

4. L'historique de l'indépendance du barreau : Mythes rassurants ou réalités troublantes? - Philip Girard
5. Escadrons de la mort et petites directives officieuses : Étude comparative de l'indépendance de la profession - W. Wesley Pue
6. L'indépendance du barreau en tant que principe constitutionnel au Canada - Patrick J. Monahan
7. L'indépendance du Barreau et l'intérêt public : Le secret professionnel dans le contexte de la sécurité nationale - Michael Code & Kent Roach
8. L'indépendance du barreau et l'intérêt du public comme impératif : les avocats doivent-ils agir comme « chiens de garde », comme dénonciateurs ou comme instruments de l'État? - Paul D. Paton
9. Sondages et culture populaire : Les limites de l'utilisation des sondages d'opinion dans l’évaluation de la perception des avocats par le grand public - Angela Fernandez

Liste des collaborateurs

Just Works

Thu, 25 Oct 2007 00:00:00 GMT

As the Law Society of Alberta celebrates its centennial, it salutes the pioneers, philosophers, soldiers, educators, and raconteurs who helped shape the province through a common bond—love of the law. Alberta lawyers have lived it all in pursuit of their craft, from frontier privations, to the heady days of the oil boom.

Detailed Table of Contents

Preface
Foreword
PREAMBLE: Law in the North West without Lawyers
Law without Lawyers: The North West to 1870

PART ONE: LAWYERS
CHAPTER 1: Lawyers as Trailblazers
Frontier Lawyers: Origins of the Alberta Law, 1882–1914
The Great Alberta Legal Rift: Lougheed v. Bennett
Generations
Family Tree of the Court of Appeal
Precedent
The First Graduating Class Photo
The Honourable Carlton Clement
First Nations Lawyers
Rainmakers in Indian Country

CHAPTER 2: Lawyers as Leaders
A Very Political Profession
Lawyer, Politician, Businessman: The Honourable Peter E. Lougheed
And in this Corner, Laurence Decore
Ged Baldwin and the Right to Know
The Right Honourable Beverley McLachlin
The Honourable Catherine Anne Fraser
Cannons versus Canons
The Honourable Anne McLellan

CHAPTER 3: Lawyers as Lawyers
The Master of Masters—One Lawyer’s Tribute to Michael Funduk
The Honourable John Wesley McClung
John Alexander Weir
Pro Bono Publico
"I Want to Die Broke": From Moose Pasture to Museum
Peter Bruce Gunn
Journey to McMurray
No Failure to Communicate
The Gallery

CHAPTER 4: Lawyers as Citizens
Lawyers at War 1914–1949
The Honourable William R. Sinclair
Exporting Law and Liberty
The "Little Communist"
Human Rights Advocates at Home
Lawyers at Play
The Game Dinner

PART TWO: LAW
CHAPTER 5: Economic Law and Justice
When the West was Won: A Brief History of Alberta’s Natural Resources
A Depression Ditty
The Empire of Buffalo
Legacy: Early Alberta’s Law of the Economy
Rough Justice

CHAPTER 6: Social Law and Justice
The Evolution of Human Rights in the Shaping of Alberta's Legal Culture
Disproving Disability
"Ladies in Law" in the 1960s
Lillian Ruby Clements
Lawyer’s Court Dress
The Mask Law

CHAPTER 7: Criminal Law and Justice
Filumena and Pic
The Trial of Vernon Booher
Patrick James "Paddy" Nolan for the Defence
Foundations of Criminal Law
The Learned Professor

PART THREE: LEGAL INSTITUTIONS
CHAPTER 8: Legal Education
The Faculty of Law, University of Alberta
The Faculty of Law, University of Calgary
The Legal Education Society of Alberta
Examinations
The Legal Resource Centre
The Law Society of Alberta
Legal Aid in Alberta
The Canadian Bar Association (Alberta Branch)
Grave Plenary Deliberations
The Justice Department of Canada in Alberta
Federal Attorneys-General (Ministers of Justice)
Presidents of the Edmonton Bar Association
Presidents of the Calgary Bar Association
The Criminal Trial Lawyers' Association
The Alberta Crown Attorneys' Association
Lynchpins

FINAL WORD: Backing into the Future: Law Practice in 2107
Acknowledgments

Recapturing Freedom

Tue, 23 Oct 2007 00:00:00 GMT

Recapturing Freedom is about the experience of long-term prisoners as they prepare for release. Author Dot Goulding shows the connection between the institutionalization that strips inmates of their identity in order to make them tractable and their subsequent, all-too-common failure to cope with life on the outside. Her book is based on extensive in-depth interviews with male and female prisoners. Recurring themes are the relentless surveillance and control to which prisoners are subjected and the centrality of violence and brutalisation in the prison experience—group violence, sexual violence, and, according to the interviewees, violence which is officially sanctioned.

Recapturing Freedome shows why most long-term prisoners find freedom so hard to recapture; physically free but mentally still locked into a subculture of brutality, isolation, and deprivation, it is most often prison that recaptures them. Goulding finishes her book with suggestions on how—taking account of the actual experiences of prisoners—this endless cycle of recidivism might be stopped.

Table of Contents

Foreword
Acknowledgments
Introduction

CHAPTER 1: Context of the Book
CHAPTER 2: The Prison Experience
CHAPTER 3: Patterns of Surveillance and Control
CHAPTER 4: Violence and Brutality in Prison
CHAPTER 5: Recapturing Freedom?
CHAPTER 6: Reflections, Recommendations, Radical Change

APPENDIX A: Research Design - Doing Qualitative research: understanding the everyday world of the long-term prisoner
APPENDIX B: Interview Schedule – Preliminary - Inside Prison
APPENDIX C: Interview Schedule – Follow up - Post Release
Bibliography
Index

Yearning to Breathe Free

Tue, 23 Oct 2007 00:00:00 GMT

This overview of the historical, social, and political contexts that have shaped Australia’s recent treatment of asylum seekers offers a clear-eyed view of the many dimensions of the asylum seeker predicament, including its psychological and humanitarian consequences, and lays out an agenda for change in policy. Yearning to Breathe Free is a passionate but informed work that is multi-faceted, thought-provoking, and ultimately hopeful. All royalties for this book go to the Asylum Seeker Resource Centre.

Table of Contents

Foreword - Professor Glyn Davis
Notes on Contributors
Acknowledgments
Introduction - Dean Lusher and Nick Haslam

PART ONE: HISTORICAL PERSPECTIVES AND BACKGROUND
Introduction - Stuart Macintyre
CHAPTER 1: Australia’s response to asylum seekers - Dean Lusher, Nikola Balvin, Amy Nethery, and Joanne Tropea
CHAPTER 2: Been there, done that? - Klaus Neumann
CHAPTER 3: Boats and borders: asylum seekers and elections, 1977 and 2001 - Chelsea Piper Rodd

PART TWO: COMING TO AUSTRALIA
Introduction - Senator Lyn Allison
CHAPTER 4: Reassessing the Tampa - Peter Mares
CHAPTER 5: Perilous journeys - Arnold Zable
CHAPTER 6: The 'Pacific Solution' - Michael Gordon

PART THREE: TREATMENT OF ARRIVED ASYLUM SEEKERS
Introduction - Rt. Hon. Malcolm Fraser
CHAPTER 7: Not in my name: the People’s Inquiry into Detention - Linda Briskman and Chris Goddard
CHAPTER 8: The impact of immigration detention on the mental health of asylum seekers - Patricia Austin, Derrick Silove, and Zachary Steel
CHAPTER 9: Mandatory detention and brain structure and function - Christine Canty and Christopher Benjamin
CHAPTER 10: The invisibles: asylum seekers holding bridging visas - Margaret Theologou and Winsome Roberts

PART FOUR: RESETTLEMENT IN AUSTRALIA
Introduction - Sir Gustav Nossal
CHAPTER 11: Two asylum seekers’ stories - Erin Taylor
CHAPTER 12: Supporters of asylum seekers - Pamela Curr
CHAPTER 13: Meaning in life and social connectedness: the experience of Sudanese young people (re)settling in Australia - Susannah Tipping, Di Bretherton, and Ida Kaplan

PART FIVE: PUBLIC OPINION ABOUT ASYLUM SEEKERS
Introduction - Phillip Adams
CHAPTER 14: Those people - Carmen Lawrence
CHAPTER 15: The news media’s representation of asylum seekers - Angela Romano
CHAPTER 16: Words excusing exclusion of asylum seekers - Michael Clyne
CHAPTER 17: Attitudes towards asylum seekers: the psychology of exclusion - Nick Haslam and Anne Pedersen

PART SIX: THE FUTURE OF ASYLUM SEEKER POLICIES
Introduction - Lindsay Tanner MP
CHAPTER 18: Post-Palmer reform of the Immigration Department: progress and pitfalls - David Manne
CHAPTER 19: The need for a uniform community-based reception policy for asylum seekers in Australia - Grant Mitchell
CHAPTER 20: Australia’s refugee policy - Julian Burnside Q.C.

Index

Class Action Law and Practice

Thu, 11 Oct 2007 00:00:00 GMT

The book is a practical guide to Australian class action law and practice. It examines in detail federal and state class action statutory provisions and case law along with the representative action procedures available under the rules of the various Australian courts. There is also detailed coverage of statutory provisions which facilitate class action or group proceedings in the areas of discrimination, migration, trade practices, corporations law, industrial relations, and privacy. In addition, the book examines laws relating to fee arrangements, the funding of class action litigation, and costs.

Numerous legal and practical issues relating to the commencement, conduct, and conclusion of class action and representative proceedings are reviewed. The use of class actions in particular areas of law is examined with particular reference to toxic torts, product liability, investor litigation, price fixing, immigration, and human rights.

The book also provides comparative information on class action litigation in other jurisdictions including England and Wales, Canada, and the United States. This includes an examination of the potential for Australian claimants to bring proceedings in foreign jurisdictions.

The book will be of particular interest to litigation lawyers, academics, law students, and members of the community with an interest in class action law and practice.

Table of Contents

CHAPTER 1: Overview of Class Action and Representative Action Laws and Procedure Rules
CHAPTER 2: Representative Action Rules in Australia
CHAPTER 3: Fees and the Funding of Class Action Proceedings
CHAPTER 4: Commencing a Class Action
CHAPTER 5: Conducting a Class Action
CHAPTER 6: Concluding a Class Action
CHAPTER 7: Costs in Class Actions
CHAPTER 8: Class Actions in Particular Areas of Law
CHAPTER 9: Representative and Class Actions under Other Statutory Provisions
CHAPTER 10: Class Action Litigation in Other Jurisdictions

Imprisoning Resistance

Wed, 10 Oct 2007 00:00:00 GMT

October 29, 2007 marks twenty years since the death of five prisoners in a riot and fire in the infamous Pentridge Prison Jika Jika High-Security Unit in Victoria. This book resurrects these events and invites us to learn urgent lessons in our current age of supermax and privatised prisons, detention of asylum seekers, and the controversial use of indefinite detention under the banner of a "war on terror."

Imprisoning Resistance provides an experiential account of life and death in the controversial Jika Jika High-Security Unit during the 1980s. One of Australia's first hi-tech supermax prisons, Jika Jika was designed to house and manage the system's "worst of the worst" prisoners. After several years of deaths in custody, escapes, assaults, murders, prisoner campaigns and protests, hunger strikes, and allegations of prison staff brutality, everything escalated in 1987 to a dramatic protest fire that resulted in the deaths of five prisoners. The prison was closed and a series of inquiries were commissioned.

Bree Carlton revisits this uncomfortable past and reconstructs events leading up to and surrounding the fire and deaths. She critically analyses official responses to the discreditable episodes, crises, and deaths that plagued Jika Jika.

Summary Table of Contents

Foreword by Phil Scraton
Prologue: 29 October 1987, Jika Jika High-Security Unit, HM Pentridge Prison, Coburg, Victoria, Australia
Introduction

PART ONE: POWER AND RESISTANCE
CHAPTER 1: Polarisation, Power and Prisoner Resistance in Australian Maximum-Security During the Explosive 1970s
CHAPTER 2: Managing a Resistance Proff Panopticon: The Official Beginnings of the Jika Jika High-Security Unit
CHAPTER 3: Contextualising Resistance: Prisoner Accounts of Power and Survival in the 'Pressure-Can'
CHAPTER 4: 'Rebelling Against the Dictatorial Regime in Jika' : Acts of Prisoner Transgression and Resistance

PART TWO: CONCEALING CRISIS
CHAPTER 5: Descent into Crisis: The Deaths of John Williams and Sean Downie
CHAPTER 6: Exonerating Institutional Liability: Official Responses to the Death of Sean Downie
CHAPTER 7: Imprisoning Crises: Official Responses to the Jika Fire as Strategies of Damage Control and Concealment

Epilogue
Bibliography
Index

Copyright Law and Practice

Fri, 28 Sep 2007 00:00:00 GMT

Leading copyright lawyer Colin Golvan SC explains copyright with great clarity and sophistication. He balances a sharp focus on "practical" matters—such as preparing a copyright case for trial and the clauses of a publishing agreement (which can be used as precedents)—with discussion of key trends—such as copyright and the internet, the use of copyright to protect indigenous art and culture, and the corporatisation of copyright. The book is aimed primarily at practitioners.

Summary Table of Contents

CHAPTER 1: Copyright: Basis of Protection
CHAPTER 2: Infringement
CHAPTER 3: Defences
CHAPTER 4: Ownership and Transmission
CHAPTER 5: Remedies
CHAPTER 6: Additional Rights and Jurisdiction
CHAPTER 7: Copyright and Court Process
CHAPTER 8: Copyright and Contracts – The Publishing Agreement
CHAPTER 9: Protection of Indigenous Copyright
CHAPTER 10: Significance of Rights Awareness – some cultural and economic issues
Index

The Mason Papers

Fri, 14 Sep 2007 00:00:00 GMT

Sir Anthony Mason has been a prominent public figure for over 40 years in Australia as well as overseas. He was, successively, Commonwealth Solicitor-General, a member of the New South Wales Court of Appeal, and Justice and Chief Justice of the High Court of Australia. In retirement, he remains an influential figure and continues to sit as a non-permanent member of the Hong Kong Court of Final Appeal.

This book comprises a selection of important articles and speeches by Sir Anthony Mason written and delivered when he was a justice and later Chief Justice of the High Court of Australia and after his retirement from that Court in 1995. The speeches and articles cover constitutional and administrative law, international law, human rights, equity and contract, the High Court, judicial administration, and advocacy. The book also includes a significant media interview, a State of the Judicature report delivered as the Chief Justice of Australia, and Sir Anthony's swearing in speeches when appointed as a justice and later Chief Justice of the High Court. Sir Anthony’s characteristic wit is on display.

The Mason Papers deals with highly topical subjects such as the role of the judge and judicial independence in a modern Western democracy; globalization; whether Australia should adopt a Bill of Rights, and if so, in what form; the establishment of an Australian republic; the decline of parliamentary and national sovereignty; and the health of Australia's parliamentary system of government.

Three key themes give powerful coherence to the book: the importance of transparent judicial reasoning; the responsibility of judges to interpret the common law, within limits, in response to changing circumstances and societal values; and the inevitable penetration of both international law and comparative law into the future development of Australian law.

The articles and speeches were chosen and edited by Professor Geoffrey Lindell in consultation with Sir Anthony.

Table of Contents

Introduction by Geoffrey Lindell
CHAPTER 1: Future Directions in Australian Law
CHAPTER 2: The Use and Abuse of Precedent
CHAPTER 3: The Role of the Judge at the Turn of the Century
CHAPTER 4: Legislative and Judicial Law-making: Can We Locate an Identifiable Boundary?
CHAPTER 5: Rights, Values and Legal Institutions: Reshaping Australian Institutions
CHAPTER 6: The Courts and Public Opinion
CHAPTER 7: The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience
CHAPTER 8: The Australian Constitution in Retrospect and Prospect
CHAPTER 9: The Convention Model for the Republic
CHAPTER 10: Administrative Law Reform: The Vision and the Reality
CHAPTER 11: The Analytical Foundations, Scope and Comparative Analysis of the Judicial Review of Administrative Action
CHAPTER 12: A Bill of Rights for Australia
CHAPTER 13: Courts, Constitutions and Fundamental Rights
CHAPTER 14: Deakin’s Vision, Australia’s Progress
CHAPTER 15: Democracy and the Law
CHAPTER 16: The Influence of International and Transnational Law on Australian Municipal Law
CHAPTER 17: Decline of Sovereignty: Problems for Democratic Government
CHAPTER 18: Themes and Tensions Underlying the Law of Contract
CHAPTER 19: The Place of Equity and Equitable Remedies in the Contemporary Common Law World
CHAPTER 20: Legal Research: Its Function and its Importance
CHAPTER 21: Judicial Independence and the Separation of Powers—Some Problems Old and New
CHAPTER 22: Sir Anthony’s Toast to the Contributors of the Oxford Companion to the High Court
CHAPTER 23: The State of the Australian Judicature
CHAPTER 24: The Role of Counsel and Appellate Advocacy
CHAPTER 25: Swearing in as Justice of the High Court, 8 August 1972
CHAPTER 26: Swearing in as Chief Justice of the High Court, 6 February 1987
CHAPTER 27: Chief Justice Comments on Fundamental Issues Facing the Judiciary

Biographical Details for Sir Anthony Mason AC, KBE
Table of Cases
Table of Legislation
Index

The Law of Torts

Fri, 07 Sep 2007 00:00:00 GMT

The Law of Torts by Philip Osborne is an indispensable resource for practitioners, judges, and students seeking a concise and accessible introduction to the principles of tort law in Canada, the social policies underlying the law, and current trends in judicial decision-making.

Professor Osborne reviews the foundations, characteristics, and objectives of tort law generally with specific discussion of the central concepts of negligence, intentional torts, strict liability and vicarious liability, nuisance, and defamation. He provides insightful analysis of the relationships between tort law and other branches of private law, including contract law and restitution, and public law, particularly the Charter of Rights and Freedoms. He concludes with an insightful commentary on the present state of tort law in Canada and its future in the 21st century. The book also includes an extensive glossary of terms.

The third edition of this best-selling text in the Essentials of Canadian Law series has been thoroughly revised and updated. The Canadian law of torts is described as it was on June 1, 2007.

Summary Table of Contents

Preface to the First Edition
Preface to the Third Edition

CHAPTER 1: Introduction
CHAPTER 2: Negligence: Basic Principles
CHAPTER 3: Special Topics in Negligence
A. Introduction
B. Products Liability
C. The Doctrine of Informed Consent to Medical Treatment
D. Human Reproduction
E. Occupiers' Liability
F. Breach of Statutory Duty
G. Pure Economic Loss
H. Governmental Liability
I. Prevention of Criminal Violence
J. Educational Malpractice
K. Legal Malpractice
L. Public Regulation of Professional Persons
M. Non-Governmental Regulatory Agencies
CHAPTER 4: Intentional Torts
CHAPTER 5: Strict Liability
CHAPTER 6: Nuisance
CHAPTER 7: Defamation
CHAPTER 8: Relationships
CHAPTER 9: Conclusion: The Canadian Law of Torts in the Twenty-first Century

Glossary
Table of Cases
Index

Labour and Employment Law in the Federal Public Service

Mon, 27 Aug 2007 00:00:00 GMT

Labour and Employment Law in the Federal Public Service describes the labour and employment law governing employees of Parliament, employees of government agencies, members of the RCMP, and most direct employees of the government (excluding members of the Canadian armed forces, judges, and employees of Crown corporations). Specifically, the book deals with the Public Service Labour Relations Act and the Public Service Employment Act. It also provides the leading cases and, where appropriate, a representative sample of decisions to explain or provide examples of particular points.

The legal regime of the federal public service has undergone significant change in the past three years, and no other book addresses these significant changes.

Part I of this book provides an overview of federal public service labour and employment law.
Part II considers the normal labour law topics as they apply to direct employees of the government and employees of government agencies. Essentially, Part II of this book is about Part I of the Public Service Labour Relations Act.
Part III concerns the terms and conditions of employment for both unionized and non-unionized employees—essentially, Part II of the Public Service Labour Relations Act.
Part IV involves the legal regulation of the employment relationship in the federal public service—namely, the process for appointment to and within the federal public service.
Part V considers Crown servants—specifically RCMP members and parliamentary employees—who are not considered federal public servants for the purposes of the Public Service Labour Relations Act.
Part VI considers the legal regulation of superannuation (pensions) for Crown servants and the role that courts play in the regulation of federal public service labour and employment law.

Summary Table of Contents

Acknowledgments

PART I
CHAPTER 1: Introduction
CHAPTER 2: History

PART II
CHAPTER 3: Scope of the Public Service Labour Relations Act
CHAPTER 4: The Public Service Labour Relations Board
CHAPTER 5: Acquisition of Bargaining Rights
CHAPTER 6: Bargaining
CHAPTER 7: Complaints Against Employers
CHAPTER 8: Employee Organizations

PART III
CHAPTER 9: Resolution of Rights Disputes
CHAPTER 10: Terms and Conditions of Employment

PART IV
CHAPTER 11: Public Service Employment Act
CHAPTER 12: Staffing at the Canada Revenue Agency
CHAPTER 13: Classification

PART V
CHAPTER 14: Royal Canadian Mounted Police
CHAPTER 15: Parliamentary Employees

PART VI
CHAPTER 16: Public Service Superannuation
CHAPTER 17: Court Proceedings

Secondary Sources
Table of Cases
Index
About the Author

Mine Safety

Tue, 14 Aug 2007 00:00:00 GMT

Historically, the mining industry has had a high incidence of work-related injury and disease and of disasters involving multiple fatalities. It also faces OHS challenges far exceeding those confronting most other industry sectors.

Mine safety legislation can play an important role in meeting those challenges. Although regulation is never likely to be the entire answer, good regulation not only brings laggards up to a minimum legal standard, it also encourages, rewards, and facilitates leaders in going beyond them. Bad regulation, in contrast, constrains good enterprises from taking the initiative to improve OHS, while failing to deter bad ones.

This book describes mine safety legislation in the "mining states" and analyses its strengths and weaknesses. It also examines the broader policy questions of how best to design, implement, and enforce mine safety regulation. It argues that, if further OHS improvements are to be achieved, substantial reform will be necessary not only in setting standards, but also in their implementation. This implies substantial changes in the way the mine safety inspectorates go about their tasks, in how they administer and enforce the law, and in the circumstances in which they choose to prosecute. It also requires the nurturing of a degree of trust—between employers and workers (individually and collectively) and between both these parties and the mines inspectorates—that has been substantially lacking in recent years.

Table of Contents

INTRODUCTION
The OHS challenge
Mine safety and the role of law

PART ONE: THE LEGAL FRAMEWORK
Safety, regulation and the mining industry

PART TWO: TOWARDS REFORM: BEST PRACTICE REGULATION, INSPECTION, ENFORCEMENT AND PROSECUTION
Towards reform
Designing standards: towards best practice
Inspection: underlying issues
Inspection and enforcement strategies
Inspection and enforcement tools
Prosecution for OHS offences: deterrent or disincentive?
Principles for a more rational and effective prosecution policy

PART THREE: REGULATION IN MANY ROOMS
Industry associatons, trade unions and worker participation
Building trust

Bibliography
Index
Cases
Legislation

The Annotated Ontario Mental Health Statutes

Thu, 02 Aug 2007 00:00:00 GMT

The Annotated Ontario Mental Health Statutes, 4th ed. is an up-to-date, centralized source of legislation and analysis in the area of mental health for Ontario. Consolidated versions of the following legislation and related forms are included:

Mental Health Act and regulations
Health Care Consent Act and regulations including discussion of Community Treatment Orders**
Substitute Decisions Act and regulations
Mental Hospitals Act and regulations
Public Hospitals Act and regulations
Freedom of Information Act
Personal Health Information Protection Act and regulations**

** new since last edition

The Canadian Charter of Rights and Freedoms and the relevant sections of the Criminal Code are also included. This edition contains the major revisions to the mental health provisions in Part XX.1 of the Criminal Code, which formed part of Bill C-10, proclaimed in force in 2005. Also new in this edition is the Crown Practice Memorandum on the Diversion of Mentally Disordered Accused. For the first time, a table of cases has been provided.

Annotations cover case law from Ontario as well as other jurisdictions for the period up to November 2006. Case law annotations range in length from a few sentences to the full text of the judgment. Commentaries are practical and to the point.

The format is easy to use and places the updated case law annotations and commentary adjacent to the legislative provisions to which they relate, following the logical organization of the statutes.

Summary Table of Contents

CHAPTER 1: Mental Health Act
CHAPTER 2: Mental Health Act Regulations
CHAPTER 3: Health Care Consent Act
CHAPTER 4: Health Care Consent Act Regulations
CHAPTER 5: Substitute Decisions Act
CHAPTER 6: Substitute Decisions Act Regulations
CHAPTER 7: Mental Hospitals Act
CHAPTER 8: Mental Hospitals Act Regulations
CHAPTER 9: Public Hospitals Act
CHAPTER 10: Public Hospitals Act Regulations
CHAPTER 11: Freedom of Information and Protection of Privacy Act
CHAPTER 12: Personal Health Information Protection Act
CHAPTER 13: Personal Health Information Protection Act Regulations
CHAPTER 14: Criminal Code Excerpts
CHAPTER 15: Canadian Charter of Rights and Freedoms

APPENDIX A: Mental Health Act Forms
APPENDIX B: Health Care Consent Act, 1996 Forms
APPENDIX C: Substitute Decisions Act, 1992 Forms
APPENDIX D: Personal Health Information Protection Act Forms
APPENDIX E: Consent and Capacity Board
APPENDIX F: Crown Policy Manual
APPENDIX G: Criminal Code Forms
Table of Cases

International Law

Mon, 23 Jul 2007 00:00:00 GMT

International Law: Doctrine, Practice, and Theory is an innovative and unique volume which crosses the traditional boundaries between textbook, casebook, and scholarly monograph. The book is designed primarily to introduce students and practitioners of law, political science, and international affairs to the system and substance of international law. It is also a convenient and comprehensive reference work on the most important aspects of this burgeoning field.

International Law includes introductory materials on the nature, history, and theory of international law from an international relations, as well as a legal, perspective. Carefully selected and edited primary materials—including treaties, UN documents, and cases—take readers to the very sources of the rules and principles that comprise modern international law. Extensive and critical commentary on, and analysis of, these primary materials guide the reader to an understanding of the rules, their strengths and weaknesses, and their place in the international legal system. Descriptions of contemporary real-world situations provide concrete context to the discussion.

This book provides readers with the information and critical tools necessary for further study in the field. The latest international legal developments and likely future trends are discussed. Up-to-the-minute changes can be tracked on an interactive website at www.publicinternationallaw.ca, which will be available in September 2007. Detailed tables and indices make it an easy-to-use reference tool.

Remarkable for both its depth and breadth, International Law: Doctrine, Practice, and Theory sets a new standard for the study of international law in Canada. It will make an invaluable addition to the reference collection of practitioners, judges, and scholars working in this ever-increasingly important area of modern law.

Detailed Table of Contents (PDF)

Summary Table of Contents

Preface
Introduction

PART ONE: THE INTERNATIONAL LEGAL "SYSTEM"
CHAPTER 1: The Concept of International Law
CHAPTER 2: Sources of International Law
CHAPTER 3: International Legal Persons

PART TWO: STATE JURISDICTION
CHAPTER 4: State Jurisdiction over Land Territory
CHAPTER 5: State Jurisdiction over Water
CHAPTER 6: State Jurisdiction over Air and Space
CHAPTER 7: State Jurisdiction over Persons, Property, and Transactions

PART THREE: CONSTRAINTS ON STATE JURISDICTION
CHAPTER 8: Jurisdictional Immunities
CHAPTER 9: Respect for International Human Rights
CHAPTER 10: Constraints on State Regulation of Economic Activity
CHAPTER 11: International Legal Protection of the Environment

PART FOUR: RECOURSE FOR VIOLATIONS OF INTERNATIONAL LAW
CHAPTER 12: State Responsibility
CHAPTER 13: Economic Sanctions
CHAPTER 14: The Use of Force
CHAPTER 15: International Criminal Law

Table of Cases

The Laskin Legacy

Thu, 12 Jul 2007 00:00:00 GMT

This book is a collection of seventeen scholarly articles and personal reminiscences that examine the life and career of the late Bora Laskin, former Chief Justice of the Supreme Court of Canada. The essays are written by family members, judges, law professors, and lawyers whose recollections about Laskin flesh out the life of a man "at the summit of Canada’s political and legal life," with commentary from some whose paths crossed his. The book includes examinations of Laskin's contribution to legal education and scholarship, as well as to jurisprudence in constitutional law, administrative and labour law, and private law. As well, it provides discussion of Laskin's impact on the Supreme Court of Canada itself.

Table of Contents

Contributors
CHAPTER 1: Introduction - Constance Backhouse

PART ONE: PERSONAL PHILOSOPHY
CHAPTER 2: Some Memories of My Father - John I. Laskin
CHAPTER 3: Comments on My Dad - Barbara Laskin

PART TWO: EDUCATOR
CHAPTER 4: Laskin and the University - Martin Friedland
CHAPTER 5: Laskin and the University Crisis of 1949 - Horace Krever

PART THREE: IMPACT ON THE SUPREME COURT OF CANADA
CHAPTER 6: Laskin’s Legacy to the Supreme Court - Ian Binnie
CHAPTER 7: Laskin’s Impact on the Supreme Court - Peter W. Hogg
CHAPTER 8: Memories of Laskin at the Court - Sheridan Scott

PART FOUR: SUBSTANTIVE CONTRIBUTIONS TO LAW
CHAPTER 9: Laskin’s Legacy to National Unity and Patriation - R. Roy McMurtry
CHAPTER 10: Laskin’s Legacy to Law - J.J. Michel Robert

PART FIVE: ADMINISTRATIVE AND LABOUR LAW
CHAPTER 11: Chief Justice Laskin’s Approach to Administrative Law - Stephen T. Goudge
CHAPTER 12: Laskin’s Contribution to Labour Law - Chris G. Paliare

PART SIX: CONSTITUTIONA LAW, FEDERALISM, AND INDIVIDUAL RIGHTS
CHAPTER 13: Laskin and the Constitutional Protection of Rights and Freedoms - Robert J. Sharpe

PART SEVEN: CONTRACT, TORTS, AND FIDUCIARY OBLIGATIONS
CHAPTER 14: The Laskin Legacy in Private Law: The Judge as Custodian of the Common Law - John D. McCamus
CHAPTER 15: Laskin and Fiduciary Duties - Kathryn N. Feldman

PART EIGHT: LASKIN IN DISSENT
CHAPTER 16: Chief Justice Bora Laskin: The Great Dissenter - Neil Finkelstein

PART NINE: REASSESSMENT: THE NEXT GENERATION
CHAPTER 17: Bora Laskin: Lifting the Legacy from the Legend - Ellen Snow

Health Law at the Supreme Court of Canada

Mon, 25 Jun 2007 00:00:00 GMT

The Supreme Court of Canada has issued a number of high-profile health law decisions—Latimer, Rodriguez, and Morgentaler, and the most recent, Chaoulli. Health law has become of great interest to the public and a dynamic, relevant, and important site of jurisprudential activity.

This book brings consideration of all of the major Supreme Court of Canada health law cases together in one place and in a coordinated fashion for the first time. In each chapter, the authors describe the relevant Supreme Court of Canada cases and explore the implications of the cases for their specific topic. Where relevant, the authors reflect on the following cross-cutting themes: the values of autonomy, dignity, liberty, equality, justice, privacy, and life; and the concepts of identity, personhood, community, property, embodiment, health, vulnerability, disability, and oppression. It is important for students, practitioners, policy-makers, academics, and judges to understand the ways in which such values and concepts play out in different ways in different contexts within the health sphere.

This book demonstrates the sweep of issues addressed by the Court and encourages reflection upon the role of the Court in shaping, both directly and indirectly, health care delivery and health policy in Canada. The authors have endeavoured to provide careful and critical evaluation of this role. Health Law at the Supreme Court of Canada is designed to contribute to the development of jurisprudence and legislation in the area of health law, policy, and practice.

Table of Contents

Introduction - Jocelyn Downie and Elaine Gibson
CHAPTER 1: The Governance of Health Care: Fundamental Values, Law and Ethics, Courts, Parliament, and the Charter - The Honourable Charles D. Gonthier
CHAPTER 2: Judicious Choices: Health Care Resource Decisions and the Supreme Court - Colleen M. Flood and Michelle Zimmerman
CHAPTER 3: A Healthy Conception of Rights? — Thinking Relationally About Rights in a Health Care Context - Jennifer Llewellyn
CHAPTER 4: Healthy Communities: Public Health Law at the Supreme Court of Canada - Barbara von Tigerstrom
CHAPTER 5: The Multiple Meanings of Causation in the Supreme Court’s Medical Malpractice Jurisprudence: Past, Present, and Future - Joan M. Gilmour
CHAPTER 6: Informed Consent: Reasonableness, Risk, and Disclosure - Erin L. Nelson
CHAPTER 7: Revisiting Core Principles: Autonomy, Consent, and the Biobanking Challenge - Timothy Caulfield
CHAPTER 8: Women’s Reproductive Equality and the Supreme Court of Canada - Sanda Rodgers
CHAPTER 9: Assisted Death at the Supreme Court of Canada - Jocelyn Downie
CHAPTER 10: The Supreme Court of Canada at the Limits of Decisional Capacity - Sheila Wildeman
CHAPTER 11: Wealth Meets Health: Disabled Immigrants and Calculations of "Excessive Demand" - Constance MacIntosh
CHAPTER 12: Whither Privacy of Health Information at the Supreme Court of Canada? - Elaine Gibson
CHAPTER 13: Patent Law at the Supreme Court of Canada: A Healthy Balance? - Teresa Scassa
CHAPTER 14: Pathways to and from the Supreme Court of Canada for Health Law Litigants - Angela Campbell