Course:Law3020/2014WT1/Group O/System Of Rights

= Dworkin System of Rights =

Principles and Rules
In a rejection of HLA Hart’s legal positivism Ronald Dworkin, the mastermind behind this theory, posits that the law contains not only rules but also underlying principles. These principles guide the ever changing and amorphous body of law that governs the lives of individuals. “Hard” cases are those for which clear rules do not exist prior to the decision reached by the judge. The mundane rules of law are not subservient to these principles but in “hard” cases, the correct principles are sought to give direction to the judicial decision making process. These principles are binding and judges are to follow them where appropriate and applicable. These principles are not static as they are shaped themselves by the moral and political culture of the moment. When they are applied in particular circumstances they are reaffirmed as binding and are reinvigorated. Conversely, if they are not found to be of use any longer they will fade from relevance. A relevant example would be the inception of negligence law in torts. The case of Donoghue v Stevenson is a perfect example where the law obviously lacked a rule to deal with a situation in which an innocent victim had suffered as a result of wrongdoing. Privity of contract precluded Ms. Donoghue from recovering for the ill effects suffered resulting from that infamous snail. Lord Atkin reached outward to the general principle in society that innocents should not be made to suffer and created an entire body of rules as a result.

Principles and Policy
A dichotomy exists in this theorem in principles and policy. Policy is concerned with social goals that are in the best interest of certain sections of the population. Policy is the responsibility of elected officials and judges apply the law in a manner that is consistent with the wishes of those legislators. Rizzo & Rizzo Shoes is a perfect example of the respect which adjudicators must maintain for the will of the legislator. In that case the Supreme Court of Canada outlined a holistic or “totality of the circumstances” approach to statutory interpretation which is focused on delineating the true intent of Parliament. The principles of law, according to Dworkin, are “discovered” fundamental tenants of justice and fairness that simply exist. Judges appeal to them and are able to decide in situations where hard cases fall outside of the existing collection of rules.

= Application to Case = The case of Alberta v Elder Advocates of Alberta Society saw five main claims made by the plaintiffs.
 * 1) There was a breach of a fiduciary duty;
 * 2) there was a breach of a duty of care;
 * 3) the government acted in bad faith;
 * 4) there was a violation of the Long Term Care Facility (LTCF) patients' section 15 rights; and
 * 5) the Government of Alberta was unjustly enriched.

Fiduciary Duty
Dworkin would identify the fiduciary duty claim as the “hard” issue in this case. The rule in this case is that the Government of Alberta can levy an “Accommodation Charge”, on those people who reside in LTCFs. This fee is, ostensibly, to offset the costs associated with feeding and sheltering these individuals, however, the description was “to subsidize health care and off set care funding”. The plaintiffs argue that this amount was artificially inflated to lower costs.

There are two principles that are relevant to this case. First, the ubiquitous desire to ensure the well-being of ones elders protecting a vulnerable segment of the population. Second, the interest society has in promoting equality. Dworkin would argue that the judges in this case appealed to both of these principles in reaching their final decision.

To protect this vulnerable section of the population it was argued that there was an ad hoc fiduciary duty owed by the government to the occupants of LTCFs. The principle that our elders should be cared for is then used to direct the analysis of whether there was this duty. The rule is that the alleged fiduciary has: 1) undertaken to act in the best interest of the alleged beneficiaries; 2) it is a defined person or class or persons who is vulnerable to a fiduciary’s control; and 3) their interest can be adversely affected by the discretion exercised by the fiduciary . Special emphasis was placed on simple vulnerability not being enough . The court finds that this principle, while relevant, does not sufficiently answer these questions and that it is the incorrect one for the issue at hand. This legal theorem agrees with that assertion and would put forward that there is a specific “right” answer to the question at hand.

The refusal to identify an ad hoc fiduciary duty shows that the court believed that the operative principle was equality and fairness. Equality is best served by not imposing such a particularized duty on the government to a specific segment of the population. Alberta has the interests of all citizens to consider and the establishment of a fiduciary responsibility to any one group should only be done where it is absolutely necessary.

Negligence and Bad Faith
The court quickly discounts both of these claims. They are counterpoint to the fiduciary claim as they are easily decided. The judges need not appeal to the principles surrounding this as decisions had been made and rules were in place. These rules were in line with the policy that the government of Alberta did not owe a specific duty to the levying of accommodation charges. Moreover, the bad faith claim could not proceed because there is simply no rule recognizing such a claim independent of the negligence claim.

Section 15 and Unjust Enrichment
The decision reached on the fiduciary duty is bolstered by the courts finding that the s. 15 and unjust enrichment claims could be brought to trial. While there was a principle refusal to raise this group up above the rest of society (by creating the fiduciary duty), there were real concerns about them being treated in a just and equitable manner. These questions were found to be justiciable.

Conclusion
Dworkin’s theory as law as a system of rights is easily applicable to the case of Alberta v Elder Advocates of Alberta Society. The application of the principles to the hard question and the subsequent selection of the “correct” one are amenable to the view that law is a system of rights. The policy considerations, respecting the intention of the legislature, found in favour of the two claims which were in line with the correct principle to apply to the case. The principle at issue is best characterized as that of equality and this was served in two ways. First, equality was furthered by refusing to recognize an ad hoc fiduciary duty. Second, the equitable interests of the seniors’ was served by recognizing that there remained a section 15 and an unjust enrichment claim available.

General

 * JURISPRUDENCE

Alberta v Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 SCR 261.

Donoghue v Stevenson[1932] AC 562, [1932] All ER Rep 1, House of Lords.

Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27, 36 OR (3d) 418.


 * SECONDARY MATERIAL

Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law, (Toronto; Pearson Education Canada, 2002) ch 10.

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