McGill Law Journal ~ Revue de droit de McGill PENALTY CLAUSES THROUGH THE LENS OF UNCONSCIONABILITY DOCTRINE: BIRCH V. UNION OF TAXATION EMPLOYEES, LOCAL 70030 ————CASE COMMENT———— Kevin E. Davis* he author reviews the recent case of Birch v. Union of Taxation Employees, Local 70030, in which the Ontario Court of Appeal evaluated—in terms of the doctrine of unconscionability—the enforceability of a clause fining union members who cross picket lines during legal strikes. He applauds the decision as an important step toward jettisoning the traditional common law penalty doctrine, according to which stipulated remedy clauses designed to have an in terrorem effect upon a contracting party are per se unenforceable. The author criticizes
The culmination to all of this reflection was the United Nations and its consequent Declaration on Human Rights. “This seminal document challenged the cultural assumptions of the past - particularly the assertion that one culture, race, or ethnicity was superior to another – and stated boldly that all human beings shared the same basic and fundamental rights.”1 This document and it’s partner the declaration which defined and outlawed genocide finally gave the Indigenous people of Canada, and indeed the world, the legal leg up that they so desperately needed. Indigenous people now had the protection of the law. Many groups attempted to parlay this protection into reclamation of lands and rights that had been taken from them by colonialist nations. New World nations such as Australia and Canada were pressuring colonial nations to give up their control over the colonies.
Should reasonable accommodation be implemented in Quebec? “Reasonable accommodation refers to the idea that equality rights set out in section 15 of the Canadian Charter of Rights and Freedoms demands that accommodation be made to various ethnic minorities. The concept is especially applied with reference to the anti-discrimination laws in Québec's Charter of Human Rights and Freedoms.” (Rock, Hoag) Multicultural and ‘multiculturalism are terms commonly used to refer to “a social condition of ethnic and racial multiplicity, to a government policy for addressing the problems associated with such range, and to an ideal of interethnic harmony and cooperation on the basis of equality”. (Harold Troper) As an ideal or ideology, multiculturalism sets a standard for the equal treatment of new and minority members of an existing national society. It seems as though many calls for accommodation come from the advocates of mixed-up political precision, the promoters of multiculturalism, diversity and communitarianism.
Did you know that The Canadian Charter of Rights and Freedoms was set in place in 1982? The Canadian Charter of Rights and Freedoms is set in place to help protect the individual rights of Canadians. Within the Charter, Canadian citizens have many rights and freedoms, for example, the right to express their opinion, vote, move freely around Canada and to be free from discrimination. If the government enacts legislation to refute these rights and freedoms, as Canadians, we are able to take the issue to the Supreme Court of Canada to fight for our rights. Democratic rights give you the right to vote for members of the House of Commons and the provincial legislature.
Another topic that will be discussed is how our government’s multiculturalism policy has revolutionized the idea of human rights thus ameliorating the quality of life in Canada. Multiculturalism is undoubtedly a fundamental characteristic of Canadian heritage. The multiculturalism policy aims to preserve this identity, a particular section in the document states that the Government of Canada is to foster the recognition and appreciation of the diverse cultures of
In 1978, the federal government amended Canada’s Immigration Act, removing a ban on homosexuals as immigrants. In 1982, the Canadian Charter of Rights and Freedoms was added to the Constitution. The Charter did not explicitly grant equality rights to gays and lesbians. However, in 1995 the Supreme Court of Canada ruled, in Egan v. Canada, that the Charter would be interpreted in a manner that prohibited discrimination on the basis of “sexual
Role Morality in Contemporary Legal Practice Contemporary legal practice is plagued by a variety of structural and philosophical issues regarding the efficiency, direction and spirit of justice in Canada today. In “Law’s Ambition and the Reconstruction of Role Morality in Canada,” David M. Tanovich theorizes that the professional role disconnect of lawyers between facilitating justice and zealous advocacy can be bridged by a reconstructed role morality grounded in a justice-seeking ethic. Such a reconstruction relies on lawyers to formulate, modulate and emulate the set of norms, standards and values that create the contemporary legal conscience, essentially its role morality. I believe that Tanovich’s rebuttals of role morality’s critiques are strong, tie into our week’s discussion of lawyers’ moral/ethical challenges and should form the core of every lawyer’s modus operandi. I will reflect on these rebuttals within the context of the critique and the importance of ethical lawyering as a whole.
Since the Criminal Code is a strictly federal jurisdiction to limit its control would deter its ability to govern as a whole. The Controlled Drugs and Substance Act was put in place for the protection of society and human health. It would be detrimental to take away from its crucial role in protecting Canadian Citizens. “The doctrine of interjurisdictional immunity has been applied to circumscribed areas of activity referred to in the cases as undertakings...It has never been applied to a broad and amorphous area of jurisdiction.” It is recognized that applying the doctrine of Interjurisdictional immunity would be unpresident and would open debate of the withstand ability of the Controlled Drug and Substance Act in future cases. In addition “the doctrine is in tension with the emergent practice of cooperative federalism” .
Social Determinants of Health: The Canadian Facts. Toronto: York University School of Health Policy and Management. Retrieved from http://www.thecanadianfacts.org/ Public Health Agency of Canada (2013, January 15). What makes Canadian healthy or unhealthy?. Retrieved from http://www.phac-aspc.gc.ca/ph-sp/determinants/determinants-eng.php The Canadian Neighbourhood, (2015).
Multiculturalism and Human Rights Research Reports #3 Racism and Discrimination in Canada Laws, Policies and Practices A. Marguerite Cassin, Tamara Krawchenko Madine VanderPlaat Atlantic Metropolis Centre/Centre Metropolis Atlantique This report has been commissioned by the Department of Canadian Heritage to foster research on removal of barriers facing vulnerable groups in Canadian society, including racial and religious minorities. This report focuses on laws, policies and practices in Canada to combat racism and discrimination, including an attempt to analyze potential gaps that need to be addressed in an increasingly multicultural Canada. The views expressed in this report do not necessarily reflect those of the Department of Canadian