Suchergebnisse

Federalism-based clear statement rules require governments to use clear statutory language when they pursue initiatives with certain implications for the division of powers. This article makes the case for altering the analytical approach in relation to two of the key federalism doctrines (the doctrine of interjurisdictional immunity and the doctrine of federal paramountcy) by adopting a federalism-based clear statement rule. It makes this case in the context of a discussion of the Supreme Court of Canada's decision in Bank of Montreal v. Marcotte (2014), an important federalism case that rejected the arguments of several banks invoking both doctrines to avoid the application or operation of a provincial consumer protection law. It argues that the weaknesses evident in the Court's analysis in the decision could be addressed, or at least mitigated, by a federalism-based clear statement rule.

This article provides a novel account of the the ory of judicial review that is evident in the Supreme Court of Canada's recent division of powers decisions (2000-2009). Under this the ory, the Supreme Court encourages the political branches to take the lead in defining the division of powers, by working out a mutually acceptable allocation of jurisdiction in each regulatory area. The Supreme Court limits itself primarily to facilitating intergovernmental dialogue about the division of powers, and managing the conflicts that result where the political branches fail to agree. The Supreme Court does not completely refuse to play a role in articulating the limits of federal-provincial power, but it openly encourages the political branches to take the lead, indicating that it will intervene only where one order of government dramatically upsets the balance of power.