Digital Commons Network^™

Approaches To Regulating Privacy Dark Patterns, Matthew Gaulton, Dominique Kelly, Jacquelyn Burkell

FIMS Publications

In this paper, we will evaluate new bills slated to replace the Personal Information Protection and Electronic Documents Act (PIPEDA) and offer stronger privacy dark pattern protections to Canadians.

Existing scholarship in the realm of privacy law, such as “Deceptive Design and Ongoing Consent in Privacy Law” by Jeremy Wiener and “Privacy Dark Patterns: A Case for Regulatory Reform in Canada” by Ademola Adeyoju, primarily focuses on creating frameworks for understanding privacy dark patterns in the law and explaining the pitfalls and legal inadequacies surrounding dark pattern legislation in Canada.

However, the aim of this paper diverges significantly. While acknowledging …

Identifying And Responding To Privacy Dark Patterns, Dominique Kelly, Jacquelyn Burkell

FIMS Publications

Privacy dark patterns are user interface design strategies intended to “nudge” users to reveal personal data, either directly or by enabling (or failing to disable) privacy-invasive platform/profile settings. Examples of privacy dark patterns on social media include defaults that enable the public display of posted content, warnings that follow attempts to reject personalized ads, and hidden “skip” buttons that make it more challenging to decline privacy-undermining requests such as to sync contacts.

Our project aims to minimize the impact of privacy dark patterns on Canadian youth. Building on our prior research documenting the use of these strategies on five social …

Polisci 3210f: Feasibility Of A National Disability Insurance Plan (Ndip) In Canada, Twana Hassan, Aditi Priya, Dylan Poole, Samantha Rubin, Ethan Chen

Community Engaged Learning Final Projects

This research report presents an overview of the feasibility and reliability of a National Disability Insurance Plan (NDIP) in Canada. Several Global North countries are leading the way in disability legislation and disability funding in comparison to Canada's inaction on the matter. A National Disability Insurance Plan in Canada will have social and economic benefits for everyone in Canada. The report concluded that Canada is capable of implementing a NDIP and doing so is the right choice.

Just Following Up: My Experience As A Summer Student Administrator For Osler, Hoskin & Harcourt Llp, Bridget Leslie

SASAH 4th Year Capstone and Other Projects: Publications

In this paper, I reflect on my experience as a Summer Student Administrator for Osler, Hoskin & Harcourt LLP where I acquired skills such as proficiency in various software and data analysis as well as professional communication, confidence, and organization. I applied these skills daily to produce quality work, and I am still applying these skills to my academic and personal life almost a year later. The culminating experience of the summer was presenting my own data analysis to a group of executives, which helped me improve my presentation skills and foster confidence in my own abilities. In addition to …

Revisiting The Defence Of Diminished Responsibility, Andrew Botterell

Law Publications

My goal in this article is to revisit the defence of diminished responsibility. There are three things that, taken together, suggest to me that a defence of diminished responsibility ought to be made available to certain individuals accused of certain criminal offences. The first is that Canadian criminal law already recognizes a number of defences that reflect ideas about diminished responsibility. The second is that despite the availability of these specific defences to criminal liability, no general defence of diminished responsibility is formally recognized in Canadian criminal law. And the third is that given the Supreme Court of Canada’s ongoing …

Do Securities Commission Debts Survive A Bankruptcy Discharge? An Analysis Of Poonian V. British Columbia (Securities Commission) (Bcca), Jasmine Girgis, Thomas G.W. Telfer

Law Publications

The Bankruptcy and Insolvency Act1 (“BIA”) allows certain debts to be discharged at the end of the bankruptcy process.2 This discharge achieves one of the BIA’s objectives by offering individual debtors a “fresh start” to rehabilitate and become productive members of society.3 However, the fresh start is not an absolute right. Parliament has enacted a series of exceptions to the discharge in section 178(1) of the BIA. As a counterweight to the fresh start principle, these exceptions ensure that debtors who engage in certain wrongful conduct do not benefit from the protections afforded by the bankruptcy regime. Interpreting these exceptions …

Project Khepri: Asteroid Mining Project. Final Policy Report, Aaron Groh, Brieanna Miklaucic, Valerie Oosterveld, Elizabeth Steyn

Institute for Earth and Space Exploration White Papers

Much like outer space, our legal system consists of many unknowns. This is especially true for new developments in emerging technologies, particularly those related to the exploration, exploitation, and utilization of space resources. The recently developed technical feasibility of space mining has advanced ahead of existing international space treaties. While certain articles of the major UN treaties can be interpreted to adapt to the utilization of space resources, most of these provisions were not originally designed to be applied to a space mining regime.

Keeping in mind this context, this paper sets out the current international law landscape, including the …

Indigenous Legal Orders In Canada - A Literature Review (Updated To August 2022), Michael Coyle

Law Publications

This is a literature review of publications concerning Indigenous legal orders in Canada, funded by a SSHRC knowledge synthesis grant. This is an update to my 2017 report of the same name.

The suppression of Indigenous legal orders was an integral part of the colonial project to assimilate Indigenous peoples, a project exemplified by Canada’s now notorious experiment with Indian Residential Schools. Long marginalized by the Canadian state, the importance of Aboriginal peoples’ own legal systems has recently been recognized by the Supreme Court of Canada, by academics (including prominent Indigenous scholars) and the Truth and Reconciliation Commission, who all …

Bankruptcy And Insolvency As An Expanding Field: An Historical Analysis Of Reference Re Debt Adjustment Act, 1937 (Alta.), Virginia Torrie, Thomas G. W. Telfer

Law Publications

The drought of the early 1920s and the economic collapse of the 1930s caused unprecedented problems for farmers in Alberta. Low prices and poor markets caused farmers to become overindebted. Parliament’s response to the situation was the Farmers’ Creditors Arrangement Act, 1934 (“FCAA”), which was intended to create an alternative mechanism to bankruptcy through which farmers could negotiate debt compromises with their creditors. Parliament viewed the situation as a temporary issue, and the FCAA reflected this assumption. In contrast, the prairie provinces sought long-term debt adjustment legislation for farmers and other debtors affected by the Great Depression. In Alberta, two …

Equitable Subordination Redux? Section 183 Of The Bankruptcy And Insolvency Act And Respecting The 'Legislative Will' Of Parliament, Thomas G. W. Telfer

Law Publications

The Supreme Court of Canada has yet to rule on whether the American doctrine of equitable subordination is part of Canadian law. In Re US Steel, the Ontario Court of Appeal suggested in obiter that section 183 of the Bankruptcy and Insolvency Act (BIA) conferred upon courts the power to equitably subordinate a claim. This article focuses on the specific point of whether section 183 of the BIA provides the court jurisdiction in equity to subordinate a claim and alter the statutory priority scheme. Equitable jurisdiction found in section 183 of the BIA does not represent a broad power to …

The New Bankruptcy ‘Detective Agency’? The Origins Of The Superintendent Of Bankruptcy In Great Depression Canada, Thomas G. W. Telfer

Law Publications

No abstract provided.

Final Report: Internship At Hull And Hull Llp, Samantha Henderson-Whaley

SASAH 4th Year Capstone and Other Projects: Publications

Over the summer of 2020 I completed a remote internship at Hull & Hull LLP, an estates law firm in Toronto, for the SASAH experiential learning course. Hull & Hull handles estates and trusts litigation. I worked on digitizing charts for a passing of accounts (which is a court audit of a fiduciary’s accounting) for which there have been a considerable number of objections that we had to either refute or attempt to resolve, or there would be a trial. I was responsible for linking evidentiary material to the existing charts in order to ensure that the information was presentable …

Diverse Perspectives On Interdisciplinarity From Members Of The College Of The Royal Society Of Canada, Steven J. Cooke, Vivian M. Nguyen, Dimitry Anastakis, Shannon D. Scott, Merritt R. Turetskyd, Alidad Amirfazli, Alison Hearn, Cynthia E. Milton, Laura Loewen, Eric E. Smith, D. Ryan Norrisd, Kim L. Lavoie, Alice Aiken, Daniel Ansari, Alissa N. Antle, Molly Babel, Jane Bailey, Daniel M. Bernstein, Rachel Birnbaum, Carrie Bourassa, Antonio Calcagno, Aurélie Campana, Bing Chen, Karen Collins, Catherine E. Connell, Myriam Denov, Benoît Dupont, Eric George, Irene Gregory-Eaves, Steven High, Josephine M. Hill, Philip L. Jackson

Law Publications

Various multiple-disciplinary terms and concepts (although most commonly "interdisciplinarity," which is used herein) are used to frame education, scholarship, research, and interactions within and outside academia. In principle, the premise of interdisciplinarity may appear to have many strengths; yet, the extent to which interdisciplinarity is embraced by the current generation of academics, the benefits and risks for doing so, and the barriers and facilitators to achieving interdisciplinarity, represent inherent challenges. Much has been written on the topic of interdisciplinarity, but to our knowledge there have been few attempts to consider and present diverse perspectives from scholars, artists, and scientists in …

Causation And Incentives In Updating Courts: Comment, Alan Miller

Law Publications

This paper examines the negligence standard in the presence of intervening causal factors. The court observes the evidence and assigns a probability to the intervening factor in the course of evaluating the injurer's negligence. The court must, under the law, put a substantial weight on the facts in estimating the intervention probability. We allow the court to also put some weight on its own prior. Under such an adaptive approach to assessing negligence, incentives for care are affected by the court's inference process in addition to the usual factors. Courts can generate efficient incentives for care through the choice of …

Terrorism And Its Legal Aftermath: The Limits On Freedom Of Expression In Canada’S Anti-Terrorism Act & National Security Act, Percy Sherwood

FIMS Publications

This analysis aims to demonstrate how s. 83.221 in Bill C-51 is likely to violate freedom of expression guaranteed under the Charter. The first section employs the two-step Irwin Toy analysis to show that the speech offense infringes upon s. 2(b) of the Charter. The second section uses the Oakes test to determine whether the breach of freedom of expression is a reasonable limit. On whether the speech offense can be justified under s. 1 of the Charter as a reasonable limit, the legislation fails at the third and fourth step of the Oakes test. Section three of this paper …

Will Trump's Space Force Lead To The Militarization Of Space?, Erika Simpson

Political Science Publications

No abstract provided.

Equality At Stake: Connecting The Privacy/Vulnerability Cycle To The Debate About Publicly Accessible Online Court Records, Jacquelyn A. Burkell, Jane Bailey

FIMS Publications

A considerable amount has been written about the privacy implications of publishing court and tribunal records online. In this article the authors examine the linkages between privacy and vulnerability for members of marginalized communities and, drawing on Calo’s “vicious cycle” of privacy and vulnerability, suggest that publicly accessible online court records represent an equality issue as well. Drawing on social science research and privacy theory, the authors demonstrate the potentially disproportionate effect of online court records on members of marginalized communities. They then examine Canadian case law, legislation and policy that impose restrictions on public disclosure of information from court …

A Copyright Board For Canada At 150, Margaret Ann Wilkinson

Law Publications

Recognition and protection of the role of copyright in Canadian society goes back as far as Confederation. But just as the need to pursue the appropriate balances among competing values is a constant part of our nation-building, so too is the need to occasionally re-examine and rebalance interests related to copyright.

Great Expectations: The Treatment Of Expectations In Wto And International Investment Law, Chios Carmody, Chios Carmody

Law Publications

A continuing issue in many areas of law is the treatment of “reasonable” or “legitimate” expectations. This contribution posits that a doctrine of expectations is vital to both the law’s stability and flexibility, functioning as a kind of ‘shock absorber’ that accommodates divergent pressures within a legal system. Expectations may arise subjectively, but what the law protects in most instances is determined objectively. This contribution goes on to examine the treatment of expectations in WTO and international investment law. Their treatment in WTO law has been to read them out as a matter of pleading in WTO dispute settlement, apart …

Obligations Versus Rights: Substantive Difference Between Wto And International Investment Law, Chios Carmody

Law Publications

WTO law remains relatively uncontentious whereas international investment law elicits much more debate. This article posits that the differences in reception are attributable to deeper substantive differences about what is protected under each regime. In WTO law what is protected is the sum total of all commitments and concessions under the WTO Agreement, something that can be thought of as a “public” good. When a country injures that good, the remedy is for the country to cease the injury, a requirement that naturally places emphasis on obligation. In international investment law, by contrast, what is protected is individualized to a …

Abductive Reasoning In Wto Law, Chios Carmody

Law Publications

Law is about many things, but at base it is about rights and obligations. That jural correlation is established and sustained by means of reasoning. We hold that an actor has a right or obligation by virtue of reasoning that classically occurs in one of two forms. An obligation creates a right by means of inductive logic that rests on the conviction of similar instances in the past and the need for proof. It can also create an obligation by means of deductive logic, that is, the process of reasoning from one or more statements (premises) that are used to …

Review Of The Development Of World Trade Organization Law, Chios Carmody

Law Publications

No abstract provided.

Rediscovering The Bankruptcy And Insolvency Power: Political And Constitutional Challenges To The Bankruptcy Act, 1919-1929, Thomas G. W. Telfer

Law Publications

No abstract provided.

Tension And Reconciliation In Canadian Contract Law Casebooks, David Sandomierski

Law Publications

Canadian common law contract law casebooks are beset with a tension. On the one hand, they all reveal a sustained commitment to the “wholesale assault on the jurisprudence of forms, concepts, and rules” that typifies American Legal Realism and its intellectual descendants. Concern with underlying values, functional reasoning, social realities, and policy thinking pervades the explicit messages of Canadian contract law casebooks and their editors’ related writings. On the other hand, the two casebooks most frequently assigned embody an allegiance to rules and courts that has a close kinship with the classical attitudes purportedly rejected. They convey a monolithic image …

The Paradox Of Deception: Lawyers, Negotiation, And An Appeal For Regulation, Emily Csiszar

2017 Undergraduate Awards

The use of deception in negotiations has spurred much debate in the legal ethics arena. Ethics are concerned with upholding principles of honesty, fairness and good faith. A lawyer’s use of deceptive negotiation tactics would therefore seem to violate the principles of legal ethics. However, certain deceptive tactics in legal negotiations are viewed as not only acceptable, but even expected as part of the negotiation process. This presents a paradox: how can a lawyer act deceptively but also ethically? This paper explores the degree of deception in negotiations that legal professionals are willing to permit on both an ethical and …

Revisiting The Open Court Principle In An Era Of Online Publication: Questioning Presumptive Public Access To Parties’ And Witnesses’ Personal Information, Jane Bailey, Jacquelyn Burkell

FIMS Publications

Openness Of cOurts can serve laudable purposes, not the least of which are transparency of government and court systems and access to justice, although accounts of the open court principle’s meaning, breadth, and underlying pur- poses have expanded and shifted over time.CurrentlyinCanadathe adherence to the principle has meant presumptive access to almost all aspects of court cases, including access to personal information about parties and witness- es, encompassing not only information contained in court judgments, but also information contained in documents led in court oces. Historically, not- withstanding this presumptive access, practical obscurity has protected much of this information, in …

Theory And Theoretical Approaches To Wto Law, Chios Carmody

Law Publications

This article examines the role of theory in relation to the law of the World Trade Organization (WTO), and more broadly, international economic law. It posits that an absence of agreement about an underlying theory of WTO law can be traced to lack of clarity about what a ‘theory’ is as well as the fact that the current vogue for interdisciplinary approaches to law means that WTO law, in particular, is analyzed through non-normative frameworks that are removed from the law’s legality. The article goes on to examine three theoretic frameworks – textual, political, and economic – that have been …

Licensing Parents In International Contract Pregnancies, Andrew Botterell, Carolyn Mcleod

Law Publications

The Hague Conference on Private International Law currently has a Parentage/Surrogacy Project, which evaluates the legal status of children in cross‐border situations, including situations involving international contract pregnancy (or ‘surrogacy’). Should a convention (or other legal instrument) focusing on international contract pregnancy emerge from this project, it will need to be consistent with the Hague convention on Intercountry Adoption. The latter convention prohibits adoptions unless, among other things, ‘the competent authorities of the receiving State have determined that the prospective adoptive parents are eligible and suited to adopt’ (Article 5a). Included in it, therefore, is a parental vetting or licensing …

Tate & Lyle: Pure Economic Loss And The Modern Tort Of Public Nuisance, Andrew Botterell, Jason Neyers

Law Publications

Professor Lewis Klar criticizes the Canadian approach to the tort o f public nuisance for being illogical and incoherent. The authors agree with Klar's assessment o f the current state of public nuisance law, but argue that insights drawn from the House o f Lords decision in Tate & Lyle Industries Ltd. v. Greater London Council offer a way forward. By conceptualizing the tort o f public nuisance as a cause o f action that protects subjects from suffering actual loss that is consequential on the violation of their passage and fishing rights over public property, Tate & Lyle offers …

Copyright In Photographs In Canada Since 2012, Margaret Ann Wilkinson, Carolyn Soltau, Tierney Gb Deluzio

Law Publications

Photographs perform a unique function because they capture moments in time and that capture is contemporaneous with the subject of the photo: “[a] writer doesn’t necessarily have to be there to produce a story. A photographer, on the other hand, must be at the event when the event happens.”

In 2012, the Copyright Modernization Act changed the Copyright Act in terms of application to photographs. This column will first discuss how copyright now applies to photographs in Canada (who owns copyright and how long it lasts) and then describe the new users’ right now available in respect of commissioned photographs.