Law Commons^™

Lloyd And The Legislative Void: Representative Actions In Transatlantic Context, Suzanne E. Chiodo

All Papers

The Canadian class action regimes have had a strong influence on the development of collective redress procedures in England. Canadian class proceedings legislation provided a model for the competition law class action regime in the UK, and before then, it featured prominently in the Civil Justice Council’s report that recommended the enactment of generic class actions legislation in England. It is fitting, then, that the UK Supreme Court’s recent decision in Lloyd v Google referred to the Canadian jurisprudence on the representative rule, which allows one or more claimants to represent a group with the ‘same interest’. While Lloyd did …

Tawdry Or Honourable? Additional Payments To Representative Plaintiffs In Ontario And Beyond, Suzanne E. Chiodo

All Papers

Additional payments to representative plaintiffs upon the resolution of a class action are widespread in Ontario and elsewhere. However, this subject has received very little attention from appellate courts (at least in Canada), law reformers, and academics. Two conflicting judgments from the Ontario Superior Court have put a spotlight on this practice, however, and it will soon be receiving appellate treatment. The practice has also recently been subject to conflicting appellate decisions in the US. This brings to the fore crucial questions not only about the purpose of such payments, but also about the purposes of class actions in general. …

How Civil Procedure Fails (And Why Administrative Justice Is Better), Allan C. Hutchinson

Articles & Book Chapters

The demand for more and better procedural fairness is a rallying-cry that receives almost universal support. All participants in the legal process – litigants, judges, legislators and lawyers – maintain that the justice of any outcome can be both affected by the quality of the procedures relied upon and offset by the failure to provide access to appropriate and balanced procedural opportunities. Indeed, unless losing litigants or applicants think that they are getting a fair shake when it comes to the procedures used, there will be even greater dissatisfaction with losing than otherwise might be the case. However, while good …

The Scc's Dilemma: What To Do With Interveners?, Richard Haigh

Articles & Book Chapters

At a conference in 2016, Osgoode Hall Law School Dean Lorne Sossin made the following offhand comment: “I think it is possible to tell the most important Supreme Court of Canada cases by the number of interveners that were involved.” I assume what he meant--and granted, it was somewhat tongue in cheek--that the more interveners there are in a case, the more important the case.

The comment intrigued me. Is it true? It is such a simple proposition. Intuitively, it seems right: more parties would wish to involve themselves in those cases that have larger impacts, or that represent more …

Effecting A Culture Shift—An Empirical Review Of Ontario’S Summary Judgment Reforms, Brooke Mackenzie

Osgoode Hall Law Journal

Lawyers and policymakers in Canada frequently discuss the need for reforms to increase access to civil justice, but concrete efforts to improve the efficiency and cost-effectiveness of our justice system are few and far between. Unfortunately, even when reforms are implemented, measures are rarely put in place to assess whether the reforms were effective. Ontario’s Civil Justice Reform Project inspired a package of amendments to Rules of Civil Procedure in 2010 but, aside from anecdotal reports, little is known about whether they achieved their desired effects. This paper presents an empirical analysis of all reported summary judgment decisions in Ontario …

Having A Say: Democracy, Access To Justice And Self-Represented Litigants, Jennifer Ann Leitch

PhD Dissertations

Access to Justice is one of the most contested issues on the law-and-society agenda. There is a long-standing exchange over its meaning, objectives, and success. Beneath that engagement, there is a deeper and more basic debate about the overall ambitions for access to justice: is the goal to improve peoples access to the legal process and generate more positive outcomes (the practical thesis), or to enhance peoples participation and ultimately their ability to affect justice as an end in itself (the democratic thesis)? This thesis adopts the latter approach.

The plight of self-represented litigants (SRLs) offers a revealing glimpse into …

Learning The 'How' Of The Law: Teaching Procedure And Legal Education, David Bamford, Trevor C. W. Farrow, Michael Karayanni, Erik S. Knutsen

Osgoode Hall Law Journal

This article examines the approaches to teaching civil procedure in five common law jurisdictions (Canada, Australia, United States, Israel, and England). The paper demonstrates the important transition of civil procedure from a vocational oriented subject to a rigorous intellectual study of policies, processes, and values underpinning our civil justice system, and analysis of how that system operates. The advantages and disadvantages of where civil procedure fits within the curriculum are discussed and the significant opportunities for ‘active’ learning are highlighted. The inclusion of England where civil procedure is not taught to any significant degree in the law degree provides a …

A Community Of Procedure Scholars: Teaching Procedure And The Legal Academy, Beth Thornburg, Erik S. Knutsen, Carla Crifò, Camille Cameron

Osgoode Hall Law Journal

This article asks whether the way in which procedure is taught has an impact on the extent and accomplishments of a scholarly community of proceduralists. Not surprisingly, we find a strong correlation between the placement of procedure as a required course in an academic context and the resulting body of scholars and scholarship. Those countries in which more civil procedure is taught as part of a university degree—and in which procedure is recognized as a legitimate academic subject—have larger scholarly communities, a larger and broader corpus of works analyzing procedural issues, and a richer web of institutional support systems that …

The Teaching Of Procedure Across Common Law Systems, Erik S. Knutsen, Thomas D. Rowe Jr., David Bamford, Shirley Shipman

Osgoode Hall Law Journal

What difference does the teaching of procedure make to legal education, legal scholarship, the legal profession, and civil justice reform? This first of four articles on the teaching of procedure canvasses the landscape of current approaches to the teaching of procedure in four legal systems— the United States, Canada, Australia, and England and Wales—surveying the place of procedure in the law school curriculum and in professional training, the kinds of subjects that “procedure” encompasses, and the various ways in which procedure is learned. Little sustained re flection has been carried out as to the import and impact of this longstanding …

Thoughtful Practitioners And An Engaged Legal Community: The Impact Of The Teaching Of Procedure On The Legal Profession And On Civil Justice Reform, Janet Walker, Andrew Higgins, Thomas D. Rowe Jr., Carla Crifò

Osgoode Hall Law Journal

What difference does the teaching of civil procedure as an academic subject make to the practice of law, to the professional community in which lawyers practice, and to civil justice reform? In this article, proceduralists from Canada, England and Wales, the United States and Australia analyze the broader implications of teaching civil procedure as an integral feature of an academic legal education rather than as a part of vocational training. They consider ways in which the approach taken to the teaching of procedure in their legal system has influenced the evolution of the profession during a decade of increased public …

A New Lens: Reframing The Conversation About The Use Of Video Conferencing In Civil Trials In Ontario, Amy Salyzyn

Osgoode Hall Law Journal

The state of courtroom technology in Ontario is increasingly capturing the attention of both the public and the legal profession. This article seeks to contribute to the conversation on this issue by focusing on one particular technology in Ontario’s courtrooms: the use of video conferencing to receive witness testimony in civil trials. The central claim is that the approach to video conferencing that dominates the policy discourse reflects an overly narrow, instrumentalist view of technology that fails to adequately take account of possible broader political and social implications as well as this technology’s transformative potential. This argument is developed by …

Self-Interest, Public Interest, And The Interests Of The Absent Client: Legal Ethics And Class Action Praxis, Jasminka Kalajdzic

Osgoode Hall Law Journal

Are existing ethical norms adequate to address the realities of class proceedings? In this article, the author explores the premise that current rules of professional conduct are effective when applied to class action praxis. In Part I, she discusses the peculiar features of class proceedings and how they create unique challenges to the ethical conduct of litigation. In Part II, the author confronts a fundamental (and often overlooked) question: Who is the client in a class proceeding to whom ethical duties are owed? Having identified the range of judicial and academic views on the unique dimensions of class actions, she …

Globalization, International Human Rights, And Civil Procedure, Trevor C. W. Farrow

Articles & Book Chapters

This article discusses the modern convergence of three traditionally separate topics: globalization and international human rights on the one hand, and civil procedure on the other. Its project is twofold: first, to highlight the role of domestic legal processes and communities in the advancement of the post-World War I1 international human rights project. Second - in contemplation of the specific context of teaching civil procedure - to help bring alive the power and increasingly-global context of civil procedure for the benefit of students.

Class Actions As Alternative Dispute Resolution, John C. Kleefeld

Osgoode Hall Law Journal

This article situates the action in ADR theory by viewing it as a hybrid process that draws on both the command and consensus portions of a rational dispute resolution continuum. Class action legislation does this in a number of ways, the most important being the scope it gives to courts to approve or disapprove class settlements that have been privately negotiated by defence and class counsel. The rationale is to protect the interests of absent class members and ensure that the legislative goals of class actions-access to justice, judicial economy and behaviour modification-are well served. Class actions can thereby render …

Evaluation Of The Ontario Mediation Program (Rule 24.1) Final Report: The First 23 Months, Robert G. Hann, Carl Baar, Lee Axon, Susan Binnie, Frederick H Zemans

Books

No abstract provided.

Challenges For Cause, Stand-Asides, And Peremptory Challenges In The Nineteenth Century, R. Blake Brown

Osgoode Hall Law Journal

This article examines the substantial differences that emerged during the nineteenth century between the law of England, the United States, and Canada regarding challenges for cause, stand-asides, and peremptory challenges in the jury selection process. The author argues that these differences stemmed from the unique social conditions of each country. The emergence of legal formalism-with its emphasis on certainty and predictability in the law-affected the development of jury challenges, though the result of formalist thinking had very different effects in all three jurisdictions. In addition, Canadian law regarding jury challenges reveals the influence of both American and English legal trends.

A Legal And Psychological Critique Of The Present Approach To The Assessment Of The Competence Of Child Witnesses, Nicholas Bala, Kang Lee, Rod Lindsay, Victoria Talwar

Osgoode Hall Law Journal

The Canada Evidence Act requires an inquiry to determine whether a child has the requisite moral and intellectual capacity to testify. Caselaw suggests that a child must demonstrate an understanding of abstract concepts like "truth" and "promise" to be competent to testify. This article reports on a survey of Ontario justice system professionals, revealing significant variation in how judges conduct competency inquiries. Children are often asked about religious beliefs and practices, and are frequently asked developmentally inappropriate questions. The authors also report on their experimental research which indicates that children's ability to explain such abstract concepts as "truth," "lie," and …

A Tale Of Two Fora: Fresh Challenges In Defending Multijurisdictional Claims, Janet Walker

Osgoode Hall Law Journal

This article analyzes recent developments in the Canadian common law of forum non conveniens as it is invoked in applications for stays and injunctions. It reviews the findings of the Supreme Court of Canada in Amchem and the Court of Appeal for Ontario in Frymer as they relate to the onus in stay applications, the significance of the plaintiffs loss of advantage and the special considerations applying to injunctions. The possibility of rationalizing the interprovincial application of the doctrine brought about by the Supreme Court's recent choice of law ruling in Tolofson is considered as are specific examples of the …