case brief

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Other Instructions: Additional requirements and details affecting this assignment are provided at the end of the assignment. This includes penalties for length and lateness. Read to the end of this document!

ASSIGNMENT TASK
This assignment requires you to write a Case Summary and Analysis of Hincks v. Gallardo. The case has been posted on cuLearn. If you wish, you can also find the case using Quicklaw or Westlaw.
REQUIRED COMPONENTS
Write your Assignment as an Essay. We strongly urge you to use the main headings such as Introduction, Summary of the Case, Analysis and Conclusion. You may also wish to use subheadings.
Your Case Summary and Analysis should include the following elements.
I. Introduction (3 marks)
Provide an introduction that identifies the following information:
• Identify the main case you will be discussing in the essay. (Your first footnote should include a complete and correct citation for the case).
• Provide a brief ‘road map’ to the essay – in other words identify the topics the essay will address.
• Provide a brief thesis statement that identifies the main argument you will advance in your analysis. (In this assignment, your thesis statement should relate to Part III.3 of the assignment – namely the argument you will advance about the preferred judicial approach to changing rules (or not) concerning same sex marriage).

II. Summary of the Hincks v Gallardo Case
Provide a summary of the Hincks v Gallardo case by addressing the following topics:
1. Background to the Case (Cause of Action and Procedural History) (2 marks)
• Who are the parties to the proceeding (including any intervenors)?
• What is the nature of the proceeding (e.g. is it a motion, an application, an action or an appeal)?
• Who is the judge presiding over this proceeding and providing the reasons for decision?
• Briefly describe the results of any lower court decisions that occurred before this proceeding.
2. Facts (3 marks)
• Summarize the relevant facts necessary to understand what the case is all about.
3. Legal Issues (1 mark)
• What were the two specific legal issues that the Court had to decide?

4. Decision and Remedy (2 marks)
• How did the judge resolve each of the two specific legal issues to be determined? (In other words, tell us the specific legal answer to each issue)
• What was the remedy granted by the judge?
o Note: provide the information in this section but do not provide a detailed explanation at this point)
5. Ratio Decidendi and Obiter Dicta (2 marks)
• Identify and state the ratio decidendi of the case.
• Were the comments concerning the operation of the Nova Scotia Civil Partnership Act in paragraphs 45 and 46 obiter dicta comments? Explain why or why not.
6. Judicial Reasoning (6 marks)
• Set out the reasons given by the judge to support her decision in the Hincks case. In particular, you should be sure to integrate the answers to the following four questions into your discussion:

1. How did the judge view the impact of the Ontario Court of Appeal’s decision in Halpern?
2. What did the judge say about the decision of the U.K. High Court of Justice (Family Division) in Wilkinson v Kitzinger and its impact on Canadian law?
3. How did the judge use the concept of “freedom of choice /autonomy” to justify the decision?
4. How does the judge use the “modern approach” to statutory interpretation in the decision?
* make sure you provide references to specific paragraphs in the decision to support your discussion.
III. Analysis: Consider the decision in Hincks v. Gallardo in the context of evolving judicial conceptions of marriage and the legitimacy of same-sex marriage (6 marks)
Provide an analysis of the way in which the decision in Hincks v. Gallardo fits within evolving judicial conceptions of marriage and different conceptions of the role of judges in implementing social change. In particular, you should be sure to integrate the answers to the following three questions into your discussion:

1. What are the differences (or similarities) in the conception of marriage adopted in Hincks v Gallardo to the conception of marriage adopted by the majority of the Ontario Divisional Court in Layland v Ontario (Minister of Consumer and Commercial Relations) (1993), 14 OR (3d) 658.
2. What are the differences (or similarities) in the discussion of the importance of the ‘choice to marry’ in Hincks v Gallardo and in Halpern v Ontario compared to the discussion of ‘choice to marry’ in Wilkinson v Kitzinger.
3. How did the different courts in Hincks v Gallardo, Halpern v Ontario and Wilkinson v Kitzinger view their respective roles in changing the laws concerning marriage? Which approach do you think is the best approach? Explain why.
* make sure you provide references to specific paragraphs in the decisions to support your analysis.

IV. Conclusion (2 marks)
Provide a short conclusion to your essay that summarizes the main points you have advanced in your analysis of the Hincks case and the main points that support your argument concerning which of the approaches to legal and social change is the most convincing.
Note: Quality of writing and citations (3 marks)
ADDITIONAL REQUIREMENTS AND INSTRUCTIONS
Length:
• Your Case Analysis should be no more than 2000 words long (approximately 8 pages). Footnotes or endnotes are not included in the word count. We will give a ‘grace’ allocation of a further 100 words for headings and cover page. You will lose marks if you go over the word limit (pro-rated at the rate of 1 mark/200 words; so you will lose 0.5 marks if you go over 100 words and 1.5 marks if you go over by 300 words and so forth.
• This word limit may seem long when you begin and short when you get into the assignment, but your ability to discern the most relevant information and to focus your Case Analysis is one of the skills being assessed in this Assignment. Pay attention to the mark allocations as a further guide to allocate your word limit.

Apportioning your Words:
• Summarize rather than directly quoting from the judgment except where you wish to comment on particular phrasing. You must provide correct citations for direct quotations from the judgments and after lengthy summaries of parts of the judgment. However you do not have to provide a citation for every individual fact or line you summarize from the judgment.
• Be succinct when discussing facts, issues, applicable rules and decision.
Your statement of the ratio should not exceed 5 sentences. Allocate the longest portions of your essay to discussing judicial reasoning and the analysis. Laws 2908F – Winter 2017