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Articles 1 - 28 of 28
Full-Text Articles in Law
Normativity, Fairness, And The Problem Of Factual Uncertainty, Andrew Botterell, Christopher Essert
Normativity, Fairness, And The Problem Of Factual Uncertainty, Andrew Botterell, Christopher Essert
Osgoode Hall Law Journal
This article concerns the problem of factual uncertainty in negligence law. We argue that negligence law's insistence that fair terms of interaction be maintained between individuals--a requirement that typically manifests itself in the need for the plaintiff to prove factual or "but-for" causation--sometimes allows for the imposition of liability in the absence of such proof. In particular, we argue that the but-for requirement can be abandoned in certain situations where multiple defendants have imposed the same unreasonable risk on a plaintiff, where the plaintiff suffers the very sort of harm that rendered the risk unreasonable, and where the plaintiff cannot …
Demythologizing Phosita - Applying The Non-Obviousness Requirement Under Canadian Patent Law To Keep Knowledge In The Public Domain And Foster Innovation, Matthew Herder
Osgoode Hall Law Journal
The Supreme Court of Canada recently revised the doctrine of non-obviousness in a pharmaceutical "selection patent" case, Apotex Inc. v. Sanofi-Synthelabo Canada Inc. Although the Court was cognizant of changes to the same doctrine in the United States and the United Kingdom, a critical flaw in how the doctrine is being applied in Canada escaped its attention. Using content analysis methodology, this article shows that Canadian courts frequently fail to characterize the "person having ordinary skill in the art" (PHOSITA) for the purpose of the obviousness inquiry. The article argues that this surprisingly common analytical mistake betrays a deep misunderstanding …
Accounting Of Profits To Remedy Biotechnology Patent Infringement, Kuris Andrews, Jeremy De Beer
Accounting Of Profits To Remedy Biotechnology Patent Infringement, Kuris Andrews, Jeremy De Beer
Osgoode Hall Law Journal
A number of important agricultural biotechnology patent disputes have arisen in Canada since the 2004 Supreme Court of Canada decision in Monsanto v. Schmeiser. Typically, defendants no longer contest issues of patent validity or infringement. Instead, the controversies have shifted to discussions about applicable remedies for infringement. The Schmeiser case ostensibly marked a fundamental change in the appropriate method for conducting an accounting of the profits that a defendant infringer must disgorge to a plaintiff patentee. The remedy of accounting of profits in patent cases, however, remains mired in definitional and conceptual confusion, which the Schmeiser case has brought to …
Substantive Review In Appellate Courts Since Dunsmuir, Gerald P. Heckman
Substantive Review In Appellate Courts Since Dunsmuir, Gerald P. Heckman
Osgoode Hall Law Journal
In Dunsmuir v. New Brunswick, the Supreme Court re-examined its approach to judicial review of administrative decisions to develop a "more coherent and-workable" framework. It merged the deferential standards of reasonableness simpliciter and patent unreasonableness into a single reasonableness standard and emphasized the importance of precedent in determining the standard applicable to a specific category of decision makers. The author makes a preliminary assessment of Dunsmuir's impact on judicial review through an analysis of recent Canadian appellate decisions. He concludes that, white Dunsmuir simplifies the standard of review analysis by encouraging courts' reliance on satisfactory precedents and guidelines to determine …
Shared Path: Bridging Indigenous And Settler Notions Of Urban Planning: An Annotated Interview With Carolyn King, Sarah Weinberger
Shared Path: Bridging Indigenous And Settler Notions Of Urban Planning: An Annotated Interview With Carolyn King, Sarah Weinberger
Journal of Law and Social Policy
When Carolyn King was the Chief, the Mississaugas of the New Credit First Nation were in the middle of an almost twenty-five year negotiation of what would be one of the largest specific land claim settlements in Canada’s history. In 1986, the Mississaugas launched a land claim, alleging that the Crown did not comply with the original terms of the Toronto Purchase, taking more land and paying less money than had been agreed upon 200 years earlier. In 2010, Canada agreed to settle for $145 million, deeming lands covering much of Toronto, Burlington Bay, and the Toronto Islands as “traditional …
Community, Property, And Human Rights: The Failure Of Property-As-Respect, Sarah E. Hamill
Community, Property, And Human Rights: The Failure Of Property-As-Respect, Sarah E. Hamill
Journal of Law and Social Policy
The question of whether private property rights can be human rights is longstanding. In this article, I unpack Hanoch Dagan and Avihay Dorfman’s recent attempt to render private property rights as capable of being human rights. Their account of private property forms part of a larger project to re-read private law and argues that the idea of substantive equality is at the heart of private law properly understood. In this article, I critique their focus on the horizontal aspects of property as ignoring the ways in which property always invokes a sense of community. I also argue that Dagan and …
The Complications Of Colonialism For Gentrification Theory And Marxist Geography, Liza Kim Jackson
The Complications Of Colonialism For Gentrification Theory And Marxist Geography, Liza Kim Jackson
Journal of Law and Social Policy
Gentrification is often described metaphorically as a form of ‘colonization,’ however in this paper I argue that gentrification comprises one strategy in the continued historical colonization of Indigenous peoples in the Canadian context, and more specifically in the settler city of Toronto. I propose that the colonial relationalities, both symbolic and material that give rise to the settler city, persist as a discipline on poor and Indigenous bodies, spaces and lands, through the capitalist way of life. Colonial relationalities are again heightened through gentrifications role in Toronto’s strivings for global city status in a neo-imperialist global economy. Gentrification is based …
Making A Music City: The Commodification Of Culture In Toronto’S Urban Redevelopment, Tensions Between Use-Value And Exchange-Value, And The Counterproductive Treatment Of Alternative Cultures Within Municipal Legal Frameworks, Sara Ross
Journal of Law and Social Policy
Meaningful diversity and inclusion within today’s cities requires attention on many fronts, including that of city redevelopment strategies and policies. To that end, this article focuses on culture-led regeneration strategies—specifically, those of Toronto’s “Music City” initiative and “Creative City” strategy—and unpacks the mechanics of using culture and heritage as tools for redevelopment where their commodification can reveal the clash between divergent value interests that exist within spaces of culture in the city. Sustainable urban development must carefully account for these divergences to avoid the displacement and lack of equitable accounting of relationally vulnerable individuals, groups, (sub)cultures, and space. Counterproductive effects …
Developers, The State, And The Politics Of Private Property Rights, Donald Leffers
Developers, The State, And The Politics Of Private Property Rights, Donald Leffers
Journal of Law and Social Policy
This article uses a new institutionalist approach to investigate major land use conflicts and regional land use policy changes in the Toronto region that affected the property relations of land developers. Institutionalist approaches focus on the role of key actors, ideas, and strategies in influencing the trajectories of political institutions, and the confrontation of political and strategic maneuvering in the face of existing institutions and structures. Through comparison of the processes driving enactment of two major regional land use statutes—the Oak Ridge Moraine Conservation Act and the Greenbelt Act—this article pays close attention to the relationships between political actors and …
The Properties Of Planning: An Evolving Landscape, Alexandra Flynn, Donald Leffers
The Properties Of Planning: An Evolving Landscape, Alexandra Flynn, Donald Leffers
Journal of Law and Social Policy
The theme of this special volume is “Challenging Traditional Notions of Property in Land Use Planning.” Property in the common law tradition is conceived as a right to something, whether physical or not, that is disconnected from the object or idea itself. Property interests are almost always hierarchical and exclusionary. An emerging body of property law scholarship is challenging the basic tenets of the discipline. For example, Nicole Graham argues that property law must be rooted in a time and place, and Sarah Keenan suggests that property law is a form of spatial and temporal order that can function as …
Revitalizing Land Use Law: Introductory Notes, Ronit Levine-Schnur
Revitalizing Land Use Law: Introductory Notes, Ronit Levine-Schnur
Journal of Law and Social Policy
As a way of celebrating its centenary, I sketch out a vision of how to revitalize land use and zoning law. Such a vision is called for not merely because of the marking of 100 years since zoning was first introduced in New York City. Due to the immense impact land use laws have on human lives and their surroundings, it is crucial to re-imagine the land use law system, and in particular judicial review of land use law, and to ground it within an ethical foundation. A land use law system should be based on an ethical commitment to …
Planning As Property: Uncovering The Hidden Racial Logic Of A Municipal Nuisance By-Law, Heather Dorries
Planning As Property: Uncovering The Hidden Racial Logic Of A Municipal Nuisance By-Law, Heather Dorries
Journal of Law and Social Policy
In her landmark essay, Whiteness as Property, Cheryl Harris powerfully demonstrates how racial identity and property claims are co-produced in law. Through a genealogy of law starting with American slave law, Harris reveals how whiteness has evolved from a form of racial identity into a legally acknowledged and protected form of property. In this article I apply Harris’ framework to an analysis of two by-laws passed by the City of Brantford (Ontario) in 2008, in order to reveal a hidden racial logic within the statutory powers vested in municipalities. By analyzing these by-laws, as well as the litigation which followed, …
Reimagining Toronto’S Community Councils, Alexandra Flynn
Reimagining Toronto’S Community Councils, Alexandra Flynn
Journal of Law and Social Policy
This article examines Toronto’s community councils, a post-amalgamation creation meant to buffer the effects of a much larger city. Using a mixed methodology approach to understand their role and function, this paper finds that community councils largely focus on local planning and land use issues. However, under applicable law, Toronto’s community councils have the capacity to increase their delegated and decision-making power to serve a greater stewardship role in matters of concern to the city’s neighbourhoods, such as the “local” effects of “city-wide” issues, and to include non-councillor members as decision-makers. This paper argues that the City of Toronto should …
From Judging Culture To Taxing "Indians": Tracing The Legal Discourse Of The "Indian Mode Of Life", Constance Macintosh
From Judging Culture To Taxing "Indians": Tracing The Legal Discourse Of The "Indian Mode Of Life", Constance Macintosh
Osgoode Hall Law Journal
In this article I consider how judicial decision making characterizes Indigenous peoples' culture outside the context of determinations under section 35(1) of the Constitution Act, 1982. I am concerned with how contemporary jurisprudence sometimes subjects Indigenous people to stereotyped tests of Aboriginality when they seek to exercise legislated rights. These common law tests of Aboriginality tend to turn on troubling oppositional logics, such as whether or not the Indigenous person engages in waged labour or commercial activities. These tests arose in historic legislation and policy that were premised on social evolutionary theory and were directed at determining whether an Indigenous …
Peoples, Bce, And The Good Corporate "Citizen", Edward J. Waitzer, Johnny Jaswal
Peoples, Bce, And The Good Corporate "Citizen", Edward J. Waitzer, Johnny Jaswal
Osgoode Hall Law Journal
This article considers the use of various legal instruments to advance a more expansive but well-defined view of directors' duties and discretion--a view which focuses on the longer-term interests of the corporation. We begin with an attempt to clarify the nature of directors' statutory duties under Canadian corporate law. We then consider the recent decisions of the Supreme Court of Canada in Peoples Department Stores Inc. (Trustee of) v. Wise and BCE v. 1976 Debentureholders, in which the Court took a broad view of corporate purpose, but failed to provide clear logic or operational guidance as to consequential directorial responsibilities. …
Copyright Law And The Restoration Of Beauty, David Nimmer
Copyright Law And The Restoration Of Beauty, David Nimmer
Osgoode Hall Law Journal
No abstract provided.
Adding Epicycles: The Inconsistent Use Test In Adverse Possession Law, Michael H. Lubetsky
Adding Epicycles: The Inconsistent Use Test In Adverse Possession Law, Michael H. Lubetsky
Osgoode Hall Law Journal
The common law courts in Ontario developed the Inconsistent Use Test (IUT) to assess claims of adverse possession. The IUT, however, often produces counter-intuitive results, which has led other jurisdictions to reject it and caused the Ontario courts to craft numerous exceptions and qualifications to the test that have left the state of the law on adverse possession very unclear. This article argues that the IUT actually represents an unconscious attempt by the Ontario judiciary to develop a functional equivalent to the civil law principle of "interversion," currently found in article 923 of the Civil Code of Quebec (CCO). It …
Bountiful Voices, Angela Campbell
Bountiful Voices, Angela Campbell
Osgoode Hall Law Journal
Common portrayals of Canada's only openly polygamous community cast it as a space frozen in time, both socially and intellectually. "Bountiful," British Columbia is a sixty-five-year-old community comprised of followers of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS). Many residents espouse plural marriage as a central tenet of their faith, believing that the practice leads not only to a good terrestrial life but, also, to facilitated entry into the "celestial kingdom." Visual and written accounts of Bountiful routinely present the women of this community as submissive, silenced, and isolated. Their traditional dress, and the number of …
A Tale Of Two Maps: The Limits Of Universalism In Comparative Judicial Review, Adam M. Dodek
A Tale Of Two Maps: The Limits Of Universalism In Comparative Judicial Review, Adam M. Dodek
Osgoode Hall Law Journal
For most of the twentieth century, the dominant paradigm in comparative public law was particularism. This was accompanied by a strong skepticism towards universalist features and possibilities in public law and, especially, constitutional law. With the rise of judicial review after World War I--and especially in Eastern Europe after the collapse of the Soviet Union--comparative judicial review has begun to flourish. However, comparative scholarship on judicial review overemphasizes the centrality of "the question of legitimacy" of judicial review in a democratic polity. This has been a result of the mistaken extrapolation of the American debate over judicial review to other …
Polygamy's Inscrutable Criminal Mischief, Susan G. Drummond
Polygamy's Inscrutable Criminal Mischief, Susan G. Drummond
Osgoode Hall Law Journal
The polygamy charges laid in the settlement of Bountiful, British Columbia, in January 2009, give rise to questions about the particular mischief of the polygamy offence in section 293 of Canada's Criminal Code. This article argues that, as a result of developments within related areas of law, polygamy's mischief under the current wording of the section is virtually inscrutable. When used, this section has principally served as a mechanism to discipline socially and politically marginalized groups. Developments in family law over the last forty years have generated a host of exceptions to the application of the polygamy section, including religious …
The Supreme Court Of Canada, Charter Dialogue, And Deference, Rosalind Dixon
The Supreme Court Of Canada, Charter Dialogue, And Deference, Rosalind Dixon
Osgoode Hall Law Journal
For those concerned about the democratic legitimacy of Charter review by Canadian courts, the idea of dialogue offers a promising middle path between the extremes of judicial and legislative supremacy. Current dialogue theory, however, largely fails to live up to this promise of compromise. Instead of distinguishing democratic worries associated with US style, strong-form judicial review, it largely endorses the legitimacy of such review. For dialogue to live up to its original promise, a new theory that more clearly distinguishes Canada from the United States is required. This article offers a new theory of dialogue in which the willingness of …
Appealing Outcomes: A Study For The Overturn Rate Of Canada's Appellate Courts, Michael H. Lubetsky, Joshua A. Krane
Appealing Outcomes: A Study For The Overturn Rate Of Canada's Appellate Courts, Michael H. Lubetsky, Joshua A. Krane
Osgoode Hall Law Journal
This commentary discusses the rate at which Canada's appellate courts are overturned by the Supreme Court of Canada. By deconstructing the overturn rate, the authors identify and compare various factors that affect the rate at which appeals are pursued, considered, and allowed. The data reveal that decisions from the British Columbia, Quebec, and Newfoundland & Labrador courts of appeal are overturned more often than those from their counterparts. Conversely, the Ontario and Saskatchewan courts of appeal exhibit overturn rates below the national average. The analysis suggests that the underlying drivers giving rise to the unusually high or low overturn rates, …
Don't Get Enough Credit: The Need For An Impartial Consumer Credit Report Appeal Tribunal In Ontario, Kent Glowinski
Don't Get Enough Credit: The Need For An Impartial Consumer Credit Report Appeal Tribunal In Ontario, Kent Glowinski
Journal of Law and Social Policy
Reviews the regulatory history of credit bureaus in Ontario, the interplay of privacy and consumer law vis-a-vis consumer credit reporting, case law and credit bureau liability, and discuss the policy rationale for a Credit Report Appeal Tribunal.
A Closer Look At Seemingly Pro-Tenant Provisions In The Residential Tenancies Act, Mary Truemner
A Closer Look At Seemingly Pro-Tenant Provisions In The Residential Tenancies Act, Mary Truemner
Journal of Law and Social Policy
Explores how the following legislative changes in Ontario systemically affect the power imbalance between landlords and tenants: (1) the abolishment of the default eviction, (2) the return of orders prohibiting rent increases where the landlord has not properly maintained the rental premises, (3) the deeming of a termination date where the tenant has not provided proper notice, and (4) additions to defences to eviction applications.
"Deference" Versus "Security Of Tenure": Eviction Of Residents Of Subsidized Housing Co-Operatives At The Superior Court Of Justice For Ontario, 1992-2009, Jeff Schlemmer
Journal of Law and Social Policy
Explores the different levels of protection against arbitrary eviction for Ontario residents of subsidized government housing and those living in a housing cooperative or another type of subsidized housing. The difference comes from the evolution of the case law over the last decade, where all evictions from residential tenancies, except housing cooperatives, have been removed from the jurisdiction of courts. This is based on the theory that cooperatives function as "democracies" and residents who accept subsidized housing in a housing cooperative, voluntarily lose the legislative rights that protects all other tenants. This area of law has become unsustainable. The court …
American Citations And The Mclachlin Court: An Empirical Study, Peter Mccormick
American Citations And The Mclachlin Court: An Empirical Study, Peter Mccormick
Osgoode Hall Law Journal
This article examines the use of American jurisprudence by the judges of the McLachlin Court, using an earlier study of such citations as a reference point. In addition to tracking overall use of American citations over time, it looks at these trends: which Canadian judges use American cases and for which types of cases; and which American cases, courts, and judges are being cited. Brief descriptions of the Supreme Court cases with the largest use of American citations precede a categorization of the results. The article confirms previous academic findings that the use of American citations have been modest, with …
Policy Preference Change And Appointments To The Supreme Court Of Canada, Benjamin Alarie, Andrew Green
Policy Preference Change And Appointments To The Supreme Court Of Canada, Benjamin Alarie, Andrew Green
Osgoode Hall Law Journal
Canadian prime ministers appoint judges to the Supreme Court of Canada at their own discretion. This practice has been criticized as providing prime ministers with the ability to appoint judges whose policy preferences are regarded as politically congenial. We examine the Court's judgments in the post-Charter era to discern the apparent policy preferences of the judges. Our results suggest that the policy preferences of judges are not strongly associated with the political party of the prime minister and that their policy preferences shift over time in seemingly unpredictable ways. We discuss the implications of this analysis for possible reforms of …
Politics Of Knowledge Dissemination: Corporate Reporting, Shareholder Voice, And Human Rights, Aaron A. Dhir
Politics Of Knowledge Dissemination: Corporate Reporting, Shareholder Voice, And Human Rights, Aaron A. Dhir
Osgoode Hall Law Journal
This article considers the relationship between social disclosure and corporate accountability in Canada. It focuses on the potential benefits social disclosure can provide in terms of the overall human rights project. I explore this issue with reference to the broader theoretical frameworks of new governance and reflexive law. White I ground my analysis in these analytical approaches. I distance myself slightly from particular arguments in the literature to date: specifically, the argument that the disclosure process will result in self-correcting behaviour on the part of corporate decision makers. Rather, I argue that the value of social disclosure may lie more …