Papers by Elizabeth Adjin-Tettey
Loi sur l'immigration au Canada exige que les personnes qui tentent d' tablir une r~sidence perma... more Loi sur l'immigration au Canada exige que les personnes qui tentent d' tablir une r~sidence permanente au Canada obtiennent un visa avant d'arriver e6 un point d'entr~e. Le ministre de la citoyennetM et de l'immigration a le pouvoir discrdtionnaire de relever certaines personnes de cette exigence pour des motifs d'ordre humanitaire. Des personnes qui r~sident de fait, mais ill~galement, au Canada repr~sentent un groupe qui pourrait tirer avantage de cette exemption. 11 arrive souvent que ces personnes taient 6tablies au Canada et y avaient de la famille. Une des questions pr~occupan'tes dans l'application de la Loi sur l'inmigration concerne le poids ei accorder aux meilleurs int~rets des enfants dans des d~marches en matidre d'immigration qui pourraient r6sulter dans la d~portation de leurs parents. L 'arrt Baker semble avoir r~solu le problome en stipulant que I'exercice raisonnable de la discretion dans ce domaine exige la prise en compte des droits, des int~r~ts et des besoins des enfants dans I'examen des requites de leurs parents fond~es sur des motifs d'ordre humanitaire. L 'arret promet de prot~ger les int~rets des enfants n~s au Canada tout en empechant les d~tournements de la procdure d'immigration. Bien que la question du meilleur int~ret des enfants canadiens se situe d~sormais au coeur de I'examen des requ~tes fonddes sur des motifs d'ordre humanitaire, il est peu probable que ce seulfait, pris isolkment, puisse produire les r~sultats escompt~s pour les parents. The Canadian Immigration Act requires that persons seeking to establish permanent residence in Canada must obtain a visa before arriving at a port of entry. The minister of citizenship and immigration has discretionary powers to exempt persons from this requirement for humanitarian and compassionate (11 and C) reasons. Illegal de facto residents could benefit from this exemption. Often times, such persons would have been established in Canada and have Canadian relatives. Whether the best interests of Canadian children ought to be given primacy in immigration proceedings that could result in the deportation of their parents has been a vexing question in the administration of the Immigration Act. Baker v. Canada (M.C.I.) seems to have put this issue to rest by holding that a reasonable exercise of discretion in this regard requires consideration of the rights, interests, and needs of children in the determination of H and C applications of their parents. The decision promises to protect the interests of Canadian-born children while safeguarding against abuse of the immigration process. Though the best interests of Canadian children must now be central to the determination of applications on H and C grounds, it is unlikely that this fact alone can produce successful outcomes for parents.
University of Toronto Press, 2000
An insured who wilfully damages insured property cannot seek indemnification under an insurance p... more An insured who wilfully damages insured property cannot seek indemnification under an insurance policy because the loss was not a fortuitous one and likely falls within an exclusion clause in the policy. This has historically been referred to as the criminal forfeiture principle, which holds that for public policy reasons a wrongdoer should not be able to benefit from his or her own wrongdoing. The question in situations like this is whether an innocent co-insured should also be barred from recovery for such loss. This article focuses on developments in the law relating to recovery by an innocent co-insured-namely amendments to the British Columbia Insurance Act. The author explores the history of the criminal forfeiture principle and also examines the modern contractual approach to interpreting insurance contracts. This article argues that the modern approach emphasizes property and contract law principles at the expense of protecting the reasonable expectations of an innocent co-i...
Social & Legal Studies, 2008
This article in scrapbook form represents the endeavour of the eight authors to document a recent... more This article in scrapbook form represents the endeavour of the eight authors to document a recent, collective, academic journey. The project was one embarked upon as a means to explore tensions between the ideas of embodiment that connected our work, and the rigidities of academic convention. Using various media, this article strives, in substance and form, to provoke, challenge and confront its audience into dialogue, while simultaneously asking questions about the limits of our own legal imaginations.
A several concurrent tortfeasor that satisfies a plaintiff's entire damage under liability in... more A several concurrent tortfeasor that satisfies a plaintiff's entire damage under liability in solidum will pay more than their fair share of the plaintiff's loss. Apportionment legislation attempts to remedy this injustice through contribution and indemnity from other concurrent tortfeasors. However, the unsatisfactory wording of apportionment statutes offers no clear direction on who is entitled to contribution and against whom such a claim can be made. In practice, this can result in unfairness to the paying tortfeasor. This article explores some of the issues arising from joint liability of concurrent tortfeasors and proposes three main areas of reform to ensure fairness between concurrent tortfeasors liable for the same damage.
Social Host Liability: A Logical Extension of Commercial Host Liability?
This article explores whether social host liability should be recognized in Canada. There appears... more This article explores whether social host liability should be recognized in Canada. There appears to be some reluctance to acknowledge social host liability. Although this may be a reflection of collective welfarism, it is inconsistent with negligence law generally and also a disincentive for accident prevention. There is no reason for social hosts to enjoy immunity from liability where they have failed to do what a reasonable person ought to have done in similar circumstances to prevent a foreseeable risk of injury. Profitability, which has traditionally been used to justify the imposition of liability on commercial hosts and not social hosts, is best considered in determining the appropriate standard of care and not the existence of a duty of care. The author examines decisions on social host liability, arguing that liability has not been imposed, not because it would be inconsistent with Canadian law, but because of failure to establish some essential requirements for negligence ...
This paper examines the broad question of whether the limitation defence as currently constructed... more This paper examines the broad question of whether the limitation defence as currently constructed and applied in the context of tort actions for historical abuse in Canadian common law jurisdictions leads to unfairness and inequities, and asks whether a more nuanced and contextualised approach which looks at the power imbalances between the parties is needed to do justice in such cases. The paper canvasses the traditional rationales for setting limitation dates and ways in which courts and legislatures avoid or minimise the harshness of their application to plaintiffs' claims. Particular attention is paid to the effects of these approaches in historical abuse cases, noting their inability to ensure all survivors of historical abuse can seek redress. The paper uses two historical abuse cases involving sterilisation-Muir v Alberta and DE (Guardian ad Litem) v British Columbia-to illustrate the arbitrariness and questionable results of some of the strategies used to circumvent the ...
Canadian Journal of Family Law, 2014
A person whose life is insured under a life insurance contract for the benefit of another person ... more A person whose life is insured under a life insurance contract for the benefit of another person does not have a contractual or common law right to terminate or otherwise affect the terms of the contract. As well, such contracts remain valid even after termination of the relationship that provided an insurable interest at the commencement of the contract. The existence of a life insurance contract might provide an incentive for the policy owner/beneficiary to cause harm to the insured person in order to collect the insurance money. Recovery of the insurance money is precluded on grounds of public policy if the beneficiary is found liable for the death of the insured person. However, this is no comfort for the victim; indeed, this situation has the potential to create or exacerbate the vulnerability of victims of domestic violence, who are mostly women and children. Manitoba, British Columbia and Alberta have enacted provisions entitling persons whose lives are insured to seek judici...
Righting Past Wrongs Through Contextualization: Assessing Claims of Aboriginal Survivors of Historical and Institutional Abuses
The Agreement in Principle (AIP) towards a Fair and Lasting Solution of the Legacy of Indian Resi... more The Agreement in Principle (AIP) towards a Fair and Lasting Solution of the Legacy of Indian Residential Schools (2005) provides a non-judicial settlement process for Indian Residential School (IRS) abuse victims. The AIP is commendable and many survivors will likely seek compensation through that process. However, the AIP does not eliminate the possibility of some IRS survivors pursuing tort claims. Also, the AIP does not cover Aboriginal survivors of historical abuses outside the IRS system. This paper emphasizes the need for a flexible and contextualized approach to tort claims by Aboriginal survivors of institutional and historical abuses. Application of seemingly neutral principles de-contextualizes the claims, limits the scope of inquiry, and ultimately results in depressed damage awards for claimants. A link is established between the legacies of colonization, racism and assimilation policies, claimants’ victimization and the current socio-economic marginalization of Aborigin...
Protecting the Dignity and Autonomy of Women: Rethinking the Place of Constructive Consent in the Tort of Sexual Battery
Sexual wrongdoing is a fundamental violation of a person's personal autonomy, bodily integrit... more Sexual wrongdoing is a fundamental violation of a person's personal autonomy, bodily integrity, and security. Victims, often already vulnerable, are further denied the right to self-determination, sexual autonomy, and human dignity.' As a result, victims of sexual abuse are increasingly seeking redress through the civil justice system either as a complement to or in substitution of criminal prosecution. A tort claim may provide personal and meaningful remedies for victimization, although there is room for improvement. Survivors have not always found justice in torts although tort liability is generally based on a standard of proof lower than that applied in criminal law, liability for sexual wrongdoing tends to require a higher threshold. However, unlike other tort cases, findings of liability for sexual wrongdoing often carry a stigma and are viewed as a reflection of depravity-hence the higher threshold.
Reforming the Disclosure Duty in Insurance Contracts - Online Applications Increase Risk of Inadvertent Disclosure Breaches
Social Science Research Network, 2011
New forms of marketing insurance products rely less on face to face dealings, and increasingly on... more New forms of marketing insurance products rely less on face to face dealings, and increasingly on impersonal interactions such as online applications. There is a corresponding increase in potential for breach of the disclosure duty when prospective insureds complete application forms without the assistance of intermediaries or the opportunity to ask questions before submitting proposals for insurance.This emerging reality for marketing insurance products, coupled with the insurer's right of nullification of the insurance contract in the event of breach of the disclosure duty, raises to the question of whether the prudent insurer test should still be used to determine materiality. Adoption of a prudent insured standard will not only facilitate access to insurance, but will also better reflect the reasonable expectations of consumers.
When we talk about tort law, we should start with the premise that it is designed to protect [hum... more When we talk about tort law, we should start with the premise that it is designed to protect [human] dignity and promote social equality and social justice. Our causes of action and remedies should be tailored to…achieve those ends. Introduction: According to proponents of therapeutic jurisprudence, legal rules and actors (lawyers, judges, etc.) can have either therapeutic or anti-therapeutic effects. Law is a social force with the potential to impact either positively or negatively the emotional life, psychological well-being and sense of social citizenship of legal subjects. Remedies for vindicating rights provide a conceptual lens for ascertaining how the interest at stake is valued. Therapeutic or anti-therapeutic effects may result from the valuation of a plaintiff’s losses and his/her human capital, especially when compared with others in similar circumstances. Personal injury can have a particularly devastating impact on the lives of victims — physically, psychologically, fin...
Deducting Past Welfare Benefits May Unfairly Impact Aboriginal Claimants
Aboriginal plaintiffs often receive far less damages for impaired working capacity than the avera... more Aboriginal plaintiffs often receive far less damages for impaired working capacity than the average Canadian in similar circumstances. Deductibility of welfare benefits further disadvantages Aboriginal people.
How Genetic Information Affects Access to Insurance
Advancements in genetic science and technology have become important tools in the diagnosis, cure... more Advancements in genetic science and technology have become important tools in the diagnosis, cure and management of many diseases. But should there be concerns about potential genetic discrimination in access to insurance as genetic information becomes widely available and inexpensive and the predictive value of genetic risks increases?
Access to private insurance funds has become increasingly important in the neo-liberal state. Acc... more Access to private insurance funds has become increasingly important in the neo-liberal state. Accurate risk assessment and actuarial equity are essential for ensuring the viability of insurance as a mechanism for managing risks, which in turn depends on proper disclosure of material risks. This article examines the purpose and scope of the disclosure duty, and remedies for breach of that duty in the context of personal insurance contracts. The current position in Canadian common law jurisdictions may be detrimental to the interests of insureds and beneficiaries. The article proposes reforms to the test for materiality and remedies for breach aimed at protecting the interests of insurers and the reasonable expectations of insureds.
Remedies: The Law of Damages
The legal foundation for a sustainable energy future in developing countries
This paper focuses on those persons who suffer injuries from another's performance of contrac... more This paper focuses on those persons who suffer injuries from another's performance of contracted government services and whom may not have access to effective remedies because of narrow and de-contextualized constructions of when vicarious liability and breach of non-delegable duties arise. The need to protect such victims is becoming increasingly desperate given the growing reliance on non-standard (outsourced) employees to fulfil governmental functions on-standard workers are not classified as employees. Hence, the employer is not vicariously liable for the torts of non-standard workers unless the delegated work entails non-delegable duties. Yet, many of the non-standard workers are not truly independent contractors - they are in no different situations than employees in relation to their ability to internalize costs associated with their work and compensate those injured in the course of its performance.
Navigating the Tripartite Relationship
The insurer's duty to defend and indemnify the insured under liability insurance policies ent... more The insurer's duty to defend and indemnify the insured under liability insurance policies entitles the insurer to retain and instruct counsel in liability actions against the insured, resulting in a tripartite relationship between insurers, insureds and defence counsel.This relationship has many advantages when there is a unity of interests. Insurers can protect their financial interests -- avoid judgment or minimize damages -- using experienced counsel, usually for reasonable fees. Insureds can avoid or limit financial risks where large deductibles and/or claims exceed policy limits, or when liability may prejudice their reputation.However, the tripartite relationship has potential for conflict of interests where the parties' interests diverge. The paper addresses ways to avoid or at least minimize conflict of interests and the need for the insured to appoint independent counsel at the insurer's expense.
McGill Law Journal, 2004
The author challenges the application of the principle of restitutio in integrum in awarding tort... more The author challenges the application of the principle of restitutio in integrum in awarding tort damages to individuals from historically marginalized groups, as it often results in undercompensation and unfairness between claimants who sustain similar injuries in similar circumstances. The current system works to the detriment of claimants from disadvantaged groups as they are awarded depressed damages by the courts, thereby sanctioning and reinforcing their marginalization in society.The author examines the extent to which issues of substantive equality are factored into the assessment of damages for female plaintiffs and identifies the current methods used for assessing the future income potential of young female claimants, as well as the factors that influence the adoption of a particular approach and its underlying assumptions. By focusing on the assessment of damages for the impaired earning capacity of women, the author explains how the current system replicates and perpetua...
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Papers by Elizabeth Adjin-Tettey