Law Commons^™

Comments On Judicial Independence And Impartiality In Isds: A Paper Prepared For The Uncitral Working Group Iii, Gus Van Harten, Pavla Křístková

All Papers

This paper was prepared in support of the mandate of Working Group III to consider the possible reform of investor-state dispute settlement (ISDS) for reasons of independence and impartiality. It outlines the deep flaws in the current design of ISDS on this issue and offers ideas about reforms to incorporate essential safeguards

Social And Economic Adversity Experienced By Canadians And Everyday Legal Problems, Ab Currie, Lisa Moore

Canadian Forum on Civil Justice

As part of a national study on the Cost of Justice by the Canadian Forum on Civil Justice (CFCJ), over 3,000 adults in Canada were asked about their experiences with civil and family justice problems and their views on the justice system in Canada. Additionally, survey participants were asked generally if over several years they had experienced ongoing issues with debt, finding or securing good and affordable housing or with unemployment. These specific areas were canvassed as possible indicators of larger, persistent issues related to social adversity in their lives. This paper draws on findings from the Everyday Legal Problems …

Ten Ideas For Community Based Justice, Ab Currie

Canadian Forum on Civil Justice

Community-based legal services have long been a part of national legal services programs in countries that introduced legal aid programs in the early years of the access to justice movement. Because of inadequate funding for legal services the pressure to do more with less has been a constant in legal aid and access to justice services. This rationing of resources has driven much creativity, innovation and a wealth of ideas for improving the delivery of legal services and continues to do so. The ten ideas about community-based justice presented in this short paper are a small part of that much …

Public And Private Spending On Justice In Canada, Lisa Moore, Mitchell Perlmutter, Trevor C. W. Farrow

Canadian Forum on Civil Justice

As a ubiquitous aspect of everyday life, it should come as little surprise that legal problems have a tremendous cumulative cost on society. Assessing the cost of civil, family and criminal justice problems in Canada is a complex and multifaceted undertaking, owing in part to the number of agencies involved in the administration of justice, the various types of justice system expenses, and the intangible and ‘knock on’ costs that often result from experiencing legal problems. Further, costs can be examined in monetary, temporal, personal, physical health, mental health and other terms. The monetary costs are of course the most …

Commonwealth Climate And Law Initiative - Climate Change And Legal Risk, Janis P. Sarra, Cynthia Williams

Conference Papers

In this presentation, Dr Janis Sarra, Presidential Distinguished Professor and Professor of Law University of British Columbia, outlined the fiduciary obligations of corporate directors and pension fiduciaries as they relate to climate change. Professor Cynthia A. Williams, Osler Chair in Business Law, Osgoode Hall Law School provided an overview of the Task Force on Climate-related Financial Disclosures, highlighted the potential for liability risks in Canada for misleading or inaccurate disclosures relating to climate change, and surveyed the field of current climate-related litigation.

Corporations As Invisible Friends, Harry Glasbeek

Editorials and Commentaries

The corporate world is a site of legally created irresponsibility.

Our four-year-old had an invisible friend, Kim. She and Kim invited us to a tea party.

Obligingly, we passed cookies and a cup to Kim. Our daughter carelessly dropped a cup. Afraid, and imaginatively, she said that Kim had done it. We told her that pretence had its limits. We had to teach her that all of us are to take responsibility for our conduct and actions taken on our behalf.

That is the moral glue that holds society together. Unless you find yourself in the corporate world.

Indigenous Environmental Justice, Knowledge And Law, Deborah Mcgregor

Articles & Book Chapters

This article is based on a paper prepared for the convening of Over the Line: A Conversation about Race, Place, and the Environment, coordinated by In-grid Waldron; it was thus originally delivered in the context of a community of scholars interested and engaged in environmental justice (EJ) as well as anti-racism scholarship and activism. Conversations at the symposium were rich and deep, introducing novel ideas and generating a synergistic energy among those present. While this article builds upon the knowledge, experiences, and perspectives shared at the event, it also aims to introduce a distinct conception of Indigenous environmental justice (IEJ) …

Bc Teachers’ Federation V. British Columbia: The Supreme Court Takes A School Holiday, Eric Tucker

Articles & Book Chapters

Constitutional labour rights in Canada now protect workers’ freedom to organize and bargain collectively and to strike. These associational freedoms are especially important for public sector workers, the most frequent targets of legislation limiting their freedoms. However, the Supreme Court of Canada judgments recognizing these rights and freedoms have also introduced important ambiguities about their foundation, scope and level of protection. This brief comment locates these ambiguities in the context of Canada’s political economy and industrial relations regime, which are beset by contradiction and conflict. It then explores the origins and development of the jurisprudential ambiguities in constitutional labour rights …

Everyday Legal Problems And The Cost Of Justice In Canada – Income Report, Lisa Moore

Canadian Forum on Civil Justice

The national “Everyday Legal Problems and the Cost of Justice in Canada” (Cost of Justice) survey was conducted with a random sample of 3,263 adults ages 18 years and older. 3,051 resided in households with land lines and 212 used cell phones only. The data presented in the following pages is based on the 3,051 land line calls. Weighted to the Canadian population, this represents an estimated 23,590,697 people from the ten provinces.

Everyday Legal Problems And The Cost Of Justice In Canada – Spending On Everyday Legal Problems Report, Lisa Moore

Canadian Forum on Civil Justice

The national “Everyday Legal Problems and the Cost of Justice in Canada” (Cost of Justice) survey was conducted with a random sample of 3,263 adults ages 18 years and older. 3,051 resided in households with land lines and 212 used cell phones only. The data presented in the following pages are based on the 3,051 land line calls. Weighted to the Canadian population, this represents an estimated 23,590,697 people from the ten provinces.

Everyday Legal Problems And The Cost Of Justice In Canada – Survey Data Report, Lisa Moore

Canadian Forum on Civil Justice

Civil and family justice problems in Canada result in financial, temporal, physical health, mental health and social costs that are often not treated with the same urgency as healthcare problems or other social problems. The “Everyday Legal Problems and the Cost of Justice in Canada” (Cost of Justice) survey, the flagship study for the Cost of Justice project, includes the first national legal problems survey in Canada (or elsewhere) to specifically ask participants about the costs of legal problems to their economic and social wellbeing. By measuring all costs related to experiencing civil and family justice problems, the Cost of …

Request For Rulemaking On Environmental, Social, And Governance (Esg) Disclosure, Cynthia Williams, Jill E. Fisch

Commissioned Reports, Studies and Public Policy Documents

Enclosed is a petition for a rulemaking on environmental, social, and governance (ESG) disclosure authored by Osler Chair in Business Law Cynthia A. Williams, Osgoode Hall Law School, and Saul A. Fox Distinguished Professor of Business Law Jill E. Fisch, University of Pennsylvania Law School, and signed by investors and associated organizations representing more than $5 trillion in assets under management including the California Public Employees' Retirement System (CalPERS), New York State Comptroller Thomas P. DiNapoli, Illinois StateTreasurer Michael W. Frerichs, Connecticut State Treasurer Denise L. Nappier, Oregon State Treasurer Tobias Read, and the U.N. Principles for Responsible Investment.

Is Cryptocurrency Money And Why Does It Matter?, Benjamin Geva

Articles & Book Chapters

The emergence of Bitcoin heralded the era of crypto and digital currencies designed for use in the general economy. But are these new currencies considered money and is current Canadian law adequate to accommodate them as money?

What You Need To Know

• Cryptocurrency denotes a digital currency in which encryption techniques are used to regulate the generation of units of currency and verify the execution of payment transactions on a decentralized network.
• "Money" is an element in definitions that determine the scope of a few statutes. As well, unlike property in general, money passes to a taker in good faith …

Leaders In The Expansive And Restrictive Interpretation Of Investment Treaties: A Descriptive Study Of Isds Awards To 2010, Gus Van Harten

Articles & Book Chapters

This article provides an empirical analysis of interpretive discretion in investor–state dis- pute settlement (ISDS). Since the late 1990s, foreign investors have brought hundreds of investment treaty claims against states, leading to numerous awards in which arbitrators have interpreted investment treaties. Arbitrators may resolve ambiguities in the treaties in expansive or restrictive ways, thereby affecting the compensatory promise of ISDS for foreign investors and corresponding risks for states. Which arbitrators have contributed most to expansive or restrictive approaches? To examine this question, data was analysed on arbitrators’ resolutions of contested legal issues, such as the permissibility of parallel or minority …

Labour Law In Post-Democratic And Post-Liberal Societies: A Case Of Cognitive Dissonance, Harry Arthurs

Conference Papers

Recently I contributed to a volume on the philosophical foundations of labour law. Most contributors located our subject within the discourse of liberal democracy, using terms such as “distributive justice”, “non-exploitation”, “dignity”, “citizenship”, and “social inclusion”. If you have a good memory, you’ll recall that such terminology once commanded respect amongst intellectuals and policy makers, that they were endorsed across the political spectrum, that they enjoyed widespread, if not deep, public support, that they even inspired practical public policies. If you have a good memory you’ll remember all that.

Central Bank Digital Currencies: The New Era Of Mondern-Day Banking, Benjamin Geva

Articles & Book Chapters

An internal report submitted in March to the Committee on Payments and Market Infrastructures (CPMI) of the Bank for International Settlements (BIS), presents an initial analysis of Central Bank Digital Currency (CBDC).

What You Need To Know

• The report poses no immediate legal implications.
• Lawyers and policy makers ought to be prepared to engage in discussions which lead to decision making as to such developments as well as to address the developments as they arise.
• The introduction of a CBDC in one jurisdiction could adversely affect others. Central banks that have introduced or are seeking to introduce a CBDC should …

Global Governance And Humanitarian Assistance – Tithing The Transnational Arms Industry, Craig Scott

Conference Papers

No abstract provided.

Resolving Family Law Disputes – Infographic, Canadian Forum On Civil Justice

Canadian Forum on Civil Justice

N/A

Coming Off The Bench: Self-Represented Litigants, Judges And The Adversarial Process, Jennifer Leitch

Canadian Forum on Civil Justice

In 1976, Abram Chayes explained how a paradigm shift was taking place in civil litigation. Procedural innovations were linked to a series of substantive changes in the American legal order that signaled a move away from a traditional private law model of litigation toward a newer and more expansive public law model of litigation. In charting this shift, Chayes explored a whole new approach to thinking about the legal process undertaken by judges. His overall assessment was very much to the point: “our traditional concept of adjudication and the assumptions on which it is based provide an increasingly unhelpful, indeed …

Directors’ Liability And Climate Risk: Canada-Country Paper, Janis P. Sarra, Cynthia Williams

Commissioned Reports, Studies and Public Policy Documents

The Commonwealth Climate and Law Initiative (CCLI) is examining the legal basis for directors and trustees to take account of physical climate change risk and societal responses to climate change, under prevailing statutory and common (judge-made) laws. These are the first comprehensive legal assessments of the discharge of directors’ duties in the climate context for four Commonwealth common law countries: Australia, Canada, South Africa, and the United Kingdom. These have been complemented by conferences in Australia (August 2016), Canada (October 2017), South Africa (January 2018) and the UK (June 2016).

The national legal papers follow a uniform structure and can …

Disclosure Of Information Concerning Climate Change: Liability Risks And Opportunities, Cynthia A. Williams

Commissioned Reports, Studies and Public Policy Documents

The Commonwealth Climate and Law Initiative (CCLI) has published two legal research papers on Canadian fiduciary duties and disclosure obligations in the climate change context. In Obligations in Business and Investment: Implications of Climate Change, legal analysis by Dr Janis Sarra, Presidential Distinguished Professor and Professor of Law University of British Columbia, shows that directors, officers and pension fund trustees must identify and address climate-related financial risk or they may be personally liable for breach of their fiduciary obligation or duty of care. In Disclosure of Information Concerning Climate Change: Liability Risks and Opportunities, Cynthia A. Williams, Osler …

Compensating Work-Related Disability: Theory, Politics And History Of The Commodification-Decommodification Dialectic, Eric Tucker

Articles & Book Chapters

In 2015, the last year for which we have complete Canadian data, workers' compensation boards recognized that 852 Canadian workers died from work-related injuries and diseases and 232,629 workers experienced disabling injuries requiring them to take time off work. About 13 percent of those injured will have permanent disabilities of varying severity. These figures significantly underestimate the true burden of work-related disability for at least three reasons. First, the percentage of the paid Canadian workforce covered by workers' compensation has been shrinking. In 2008, it was estimated to stand at about 80 percent, although coverage bounced back to about 85 …

Towards A Distinctive Trademark Law For The 21st Century, David Vaver

Articles & Book Chapters

Canada's Trade Marks Act, when passed in 1953, was probably the best then around, but 65 years later it is ready to be pensioned off. The Act's deficiencies have become more evident as new markets and interests have gained prominence. A broadly-based Committee to reconsider the reform ofall intellectual property laws, with trademark law as one component, should be struck to produce a user-friendly code fit for 21st century commerce.

Legal Secondary Consultation: How Legal Aid Can Support Communities And Expand Access To Justice, Ab Currie

Canadian Forum on Civil Justice

Legal secondary consultation (LSC) is an innovative mode of legal aid delivery in which a lawyer, licensed paralegal or experienced legal worker in a legal aid clinic provides one-on-one advice to a service provider in a social services agency or a community organization, assisting the provider to resolve problems for clients seeking help. The individuals experiencing problems do not become direct legal aid clients unless the LSC advisor decides on a referral to the 76 community legal clinics.

Surviving Difference: Endocrine-Disrupting Chemicals, Intergenerational Justice, And The Future Of Human Reproduction, Robyn Lee, Roxanne Mykitiuk

Articles & Book Chapters

Endocrine-disrupting chemicals have been identified as posing risks to reproductive health and may have intergenerational effects. However, responses to the potential harms they pose frequently rely on medicalised understandings of the body and normative gender identities. This article develops an intersectional feminist framework of intergenerational justice in response to the potential risks posed by endocrine-disrupting chemicals. We examine critiques of endocrine disruptors from feminist, critical disability and queer standpoints, and explore issues of race and class in exposures. We argue that responding to the risks posed by endocrine disruptors such as brominated flame retardants (BFRs) and phthalates requires developing a …

Shifting The Framework Of Canadian Water Governance Through Indigenous Research Methods: Acknowledging The Past With An Eye On The Future, Rachel Arsenault, Sibyl Diver, Deborah Mcgregor, Aaron Witham, Carrie Bourassa

Articles & Book Chapters

First Nations communities in Canada are disproportionately affected by poor water quality. As one example, many communities have been living under boil water advisories for decades, but government interventions to date have had limited impact. This paper examines the importance of using Indigenous research methodologies to address current water issues affecting First Nations. The work is part of larger project applying decolonizing methodologies to Indigenous water governance. Because Indigenous epistemologies are a central component of Indigenous research methods, our analysis begins with presenting a theoretical framework for understanding Indigenous water relations. We then consider three cases of innovative Indigenous research …

Stewart V. Elk Valley: The Case Of The Cocaine-Using Coal Miner, Faisal Bhabha

All Papers

It has for some time been settled under section 15 of the Charter and within anti-discrimination code definitions that "disability" includes "addictions". Labour boards and human rights tribunals have long accepted that "alcohol and drug addiction are illnesses and are physical and mental disabilities for the purposes of the Human Rights Code. There are no reasons to consider them any less an illness or disability than any other serious affliction."' The shift in expert consensus led to notable changes to the key American diagnostic instrument, the DSM 5, adopted in 2013 with a completely revised approach to addictions. What is …

Report Of The Independent Expert On Human Rights And International Solidarity, Obiora C. Okafor

Commissioned Reports, Studies and Public Policy Documents

This is the first report prepared by Obiora Chinedu Okafor in his capacity as Independent Expert on human rights and international solidarity. In the report, submitted pursuant to Human Rights Council resolution 35/3, the Independent Expert sets out his vision for the mandate, summarizes the work undertaken so far by his predecessors, outlines his objectives and methods of work, and discusses possible thematic priorities for the mandate.

Constituting Bodies Into The Future: Toward A Relational Theory Of Intergenerational Justice, Jessica Eisen, Roxanne Mykitiuk, Dayna Scott

Articles & Book Chapters

Questions of justice now unfurl on spatial and temporal scales at once global and microscopic, immediate and spanning through the ages. Legal and political concepts of causation and responsibility are complicated and reconfigured by our growing awareness of the intergenerational consequences of contemporary choices. In this context, the House of Commons Standing Committee on Environment and Sustainable Development ("Standing Committee") recently recommended that the Government of Canada create "an advocate for Canada's future generations."' The Standing Committee's report expressly cites growing transnational and international attention to the demands of "intergenerational equity''. noting that various jurisdictions have experimented with institutional committees …

Working Time, Dinner Time, Serving Time: Labour And Law In Industrialization, Douglas Hay

Articles & Book Chapters

Many economic historians agree that increased labour inputs contributed to Britain’s primary industrialisation. Voluntary self-exploitation by workers to purchase new consumer goods is one common explanation, but it sits uneasily with evidence of poverty, child labour, popular protest, and criminal punishments explored by social historians. A critical and neglected legal dimension may be the evolution of contracts of employment. The law of master and servant, to use the technical term, shifted markedly between 1750 and 1850 to advantage capital and disadvantage labour. Medieval in origin, it had always been adjudicated in summary hearings before lay magistrates, and provided penal sanctions …