Mid-Term Rapid Review

Mid-Term Rapid Review

We will use our time in class to do a help identify key gaps in your knowledge and understanding so far this term. To that end, I have provided a list of "rapid review" questions for you to read and consider. I don’t suggest that you address them all in full detail. Instead, read each and consider your answer for no more than a minute or two. You can come back to these questions in more detail as part of your exam preparation--their purpose at this point is only to provide a check on what you've learned so far and to help you to discover where you can most effectively focus your studying.

Week 1: Intro to the Course #

  • A mid-twentieth century dispute at a shopping mall seems like an unusual place to start our course. Why do we read Harrison v Carswell as our first case?

  • How would you describe the main disagreements between Justice Dickson and Justice Laskin in Harrison v Carswell? What assumptions on the part of the judges underlie these differences?

  • What does Harrison v Carswell tell us about how “possession” is different from “title” and about the relationship between these concepts?

Week 2: Recognition, Relationships and Possession #

  • What is the problem of recognition and why did we use this as our starting point in Week 2? How might this problem be understood differently in Anglo-Canadian and Mi’kmaw legal systems?

  • In what way does Locke’s story about first possession and property characterize and help us to understand the fundamental dilemma of liberalism? How is this dilemma connected to the idea of legal “style”?

  • How does Locke say that one comes to own a wild acorn? Do his ideas help the judges in Clift v Kane to resolve the question of who owns the wild seals?

  • How do the preferred principles of first possession concerning seal pelts differ between the majority and minority decision in Clift v Kane?

  • Explain the differing approaches to precedent taken by the judges in Clift v Kane. How do these differing approaches relate to the judges' conclusions?

  • What legal test does one need to satisfy in order to establish possession? To demonstrate abandonment of property?

  • How is terra nullius related to the concept of possession and what can the reasoning in R v Syliboy tell us about the persistance of this doctrine?

  • How do the facts and the decisions in Armorie v Delamirie and in Asher v Whitlock illustrate and underscore the relative nature of possession and its relationship to title?

  • How does Piper v Stevenson help us to further understand the relationship between possession and title? To what extend is the adverse possession doctrine a produce of Lockean thinking?

Week3: Title as Recognition #

  • Distinguish between the different types of “title” at play in St. Catherine’s Millling and explain their relationship to the common law doctrines of tenure and estates in lend.

  • Is the Royal Proclamation of 1763 a source of Aboriginal title according to the doctrine developed in St. Catherine’s Millling?

  • According to the courts in St. Catherine’s Millling, is Aboriginal title a “beneficial interest” land?

  • Compare the structure of title and possession in reserve lands under the federal Indian Act with those at issue in St. Catherine’s Millling.

Week 4: Nuisance and the Right to Exclude #

  • Explain how the judges in Victoria Park Racing rely on and differ in their ideas about economic competition between the parties and about the “naturalness” of the alleged nuisance.

  • How do the courts in Canadian Copper Co. and Canadian Paper Co. apply to the Shelfer test to resolve the question of the appropriate remedy in nuisance?

  • How do the judges in Canadian Copper Co. and Canadian Paper Co. characterize the nuisances at issue as “natural” or “unnatural”? How does this characterization influence their decisions?

  • How do Justice Idington in Canadian Paper Co. and Justice Middleton in Canadian Copper Co. differ in their understanding of “relevant” evidence? Are their approaches to this evidence both consistent with the classical style?

Week 5: Excluding the State #

  • When do riparian owners in Canada hold common law property rights in rivers and streams?

  • What important principles of statutory interpretation are applied by the Supreme Court of Canada in McLaren v Caldwell? What assumptions underlie these principles and how do they help the court to resolve the issue of expropriation in the case?

  • How does Locke’s theory of property influence judicial reasoning in McLaren v Caldwell?

  • How was disallowance of the Rivers and Streams act by Parliament in the McLaren v Caldwell saga justified by Conservative legislators? How was it contested by the Liberal opposition?

  • What can the McLaren v Caldwell case and surrounding legal developments tell us about arguments over the institutional role of courts versus legislatures found in Harrison v Carswell?

  • What do we know and not know about the application of Nova Scotia’s Expropriation Act after concluding our study of expropriation this week?