Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Constitutional Law (18)
- Human Rights Law (13)
- Banking and Finance Law (11)
- Indigenous, Indian, and Aboriginal Law (11)
- Environmental Law (10)
-
- Labor and Employment Law (9)
- International Law (8)
- Intellectual Property Law (7)
- Law and Society (7)
- Courts (6)
- Civil Rights and Discrimination (5)
- Tax Law (5)
- Administrative Law (4)
- Criminal Law (4)
- Dispute Resolution and Arbitration (4)
- Health Law and Policy (4)
- Immigration Law (4)
- Law and Politics (4)
- Religion Law (4)
- Business (3)
- Comparative and Foreign Law (3)
- Judges (3)
- Jurisprudence (3)
- Legal History (3)
- Securities Law (3)
- Social and Behavioral Sciences (3)
- Arts and Humanities (2)
- Business Organizations Law (2)
- Civil Law (2)
- Keyword
-
- Canada (29)
- Ontario (6)
- United States (6)
- Constitutional law (5)
- Canada. Supreme Court (4)
-
- Environmental law (3)
- Indigenous peoples--Legal status, laws, etc. (3)
- Law (3)
- Refugees--Legal status, laws, etc. (3)
- Access to justice (2)
- Book Review (2)
- Book review (2)
- Canada. Canadian Charter of Rights and Freedoms (2)
- Egypt (2)
- European Union (2)
- Germany (2)
- Human Rights (2)
- International law (2)
- Legal history (2)
- Public policy (2)
- Regulation (2)
- Rule of law (2)
- Separation of powers (2)
- 'Children's Rights' (1)
- 'Justice' (1)
- 'Non-State Actors' (1)
- 'State Actors' (1)
- ASIC (1)
- Aboriginal Title (1)
- Aboriginal law, Indigenous law, duty to consult, environmental impact assessment (EIA), Canadian constitutional law (1)
- Publication
-
- Osgoode Hall Law Journal (46)
- Osgoode Legal Studies Research Paper Series (44)
- Articles & Book Chapters (30)
- The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference (18)
- Obiter Dicta (13)
-
- Osgoode Course Casebooks (10)
- Canadian Forum on Civil Justice (9)
- All Papers (8)
- PhD Dissertations (7)
- LLM Theses (5)
- Commissioned Reports, Studies and Public Policy Documents (4)
- Editorials and Commentaries (4)
- The Transnational Human Rights Review (3)
- Books (1)
- Forthcoming Articles (1)
- Journal of Law and Social Policy (1)
- Law School Publications (1)
- Librarian Publications & Presentations (1)
- Publication Type
Articles 181 - 206 of 206
Full-Text Articles in Law
The Fictitious Payee After Teva V. Bmo: Has The Pendulum Swung Back Far Enough?, Benjamin Geva
The Fictitious Payee After Teva V. Bmo: Has The Pendulum Swung Back Far Enough?, Benjamin Geva
Articles & Book Chapters
Under Section 20(5) of the Bills of Exchange Act (‘‘BEA s. 20(5)”) where on a bill of exchange ‘‘the payee is a fictitious or non-existing person, the bill may be treated as payable to bearer.” A bill of exchange includes a cheque. Where BEA s. 20(5) applies to a cheque, its effect is to reallocate forged endorsement losses from banks involved in the collection and payment of the cheque to the drawer. Quite recently, in commenting on Raza Kayani LLP v. Toronto-Dominion Bank, I highlighted the ongoing confusion in the judicial interpretation of BEA s. 20(5) (‘‘Kayani Comment”). That comment …
Placing Twail Scholarship And Praxis: Introduction To The Special Issue Of The Windsor Yearbook Of Access To Justice, Sujith Xavier, Amar Bhatia, Usha Natarajan, John Reynolds
Placing Twail Scholarship And Praxis: Introduction To The Special Issue Of The Windsor Yearbook Of Access To Justice, Sujith Xavier, Amar Bhatia, Usha Natarajan, John Reynolds
Articles & Book Chapters
This Special Issue of the Windsor Yearbook of Access to Justice collects some of the written reflections of participants from the Third World Approaches to International Law [TWAIL] Conference held in Cairo, Egypt, from 21 to 24 February 2015. TWAIL is a loosely affiliated network of scholars and practitioners of international law and policy. TWAIL scholars and practitioners are animated by the relationship between the Global North and the Global South, and the ensuing disparities in wealth and health spurred on by processes of diverging and converging colonial and postcolonial histories.
Equality, Non-Discrimination And Work-Life Balance In Canada, Eric Tucker, Alec Stromdahl
Equality, Non-Discrimination And Work-Life Balance In Canada, Eric Tucker, Alec Stromdahl
Articles & Book Chapters
The principle that everyone has a right to equal treatment was first entrenched in Canadian law in the aftermath of the Second World War when legislation began to be enacted prohibiting discrimination on the basis of sex, race and religion. Since that time, the grounds of prohibited discrimination have steadily increased. These grounds will be discussed in greater detail in the answer to question 1. Because Canada is a federal state and courts have held that legislative authority over human rights is primarily a matter of provincial jurisdiction, there is no uniform law of Canada. Nevertheless, the provisions of statutory …
The Helping Profession : Can Pro Bono Lawyers Make Sick Children Well?, Lorne Sossin
The Helping Profession : Can Pro Bono Lawyers Make Sick Children Well?, Lorne Sossin
Articles & Book Chapters
"Can pro bono lawyers make sick children well? Surprisingly, the answer might be yes. Or at least pro bono lawyers can improve patients’ experiences and health outcomes for families caught up in the hospital system. ... a pioneering initiative in Boston to locate legal clinics in hospitals. Word of this experiment reached Pro Bono Law Ontario (PBLO), an organization active in referring hospital cases to lawyers willing to take on pro bono cases. The benefits of coordinating such cases through a hospital-based pro bono clinic were clear, and the Family Legal Health Program, renamed PBLO at SickKids, was born."
Introduction, Ingrid B. Wuerth
Introduction, Ingrid B. Wuerth
Osgoode Hall Law Journal
Comparative constitutional law is today an exciting and increasingly diverse field of academic inquiry in US and Canadian law schools, as the excellent papers for this Symposium illustrate. Looking back, the 1990s were also a dynamic period for comparative constitutional law, with a predictable emphasis on constitution drafting in Eastern Europe and South Africa. As law and economics and empirical work became popular tools of legal analysis, comparative constitutional law initially drifted instead toward a focus on constitutional courts and on positive and negative liberties. Moreover, once the focus shifted away from active constitution drafting projects, questions re-surfaced about why …
Formal Versus Functional Method In Comparative Constitutional Law, Francesca Bignami
Formal Versus Functional Method In Comparative Constitutional Law, Francesca Bignami
Osgoode Hall Law Journal
In the field of comparative constitutional law, the dominant approach to concept formation and research design is formal. That is, comparative projects generally identify what counts as the supreme law that can be enforced against all other sources of law based on the “constitutional” label of the positive law (written constitutions and the jurisprudence of constitutional courts) and the law books. This formal method, however, has significant limitations when compared with the functional method used in the field of comparative law more generally speaking. After a brief exposition of the functional method, this article explores the advantages of the functional …
A Theory Of Quasi-Constitutional Legislation, Vanessa Macdonnell
A Theory Of Quasi-Constitutional Legislation, Vanessa Macdonnell
Osgoode Hall Law Journal
Since the 1970s, the Supreme Court of Canada has treated a small number of statutes as quasi-constitutional. Despite the longstanding presence of quasi-constitutional statutes in Canadian law, however, the Court has yet to articulate comprehensive criteria for recognizing a statute or regulation as quasi-consitutional. In this article, I argue that quasi-constitutional legislation or more accurately, some provisions in quasi-constitutional legislation should be understood as implementing constitutional imperatives. I use the term constitutional imperatives to refer to constitutional obligations of varying degrees of specificity that emanate from the rights-conferring aspects of the Constitution, as well as from those aspects of the …
Equality Before The Law? Evaluating Criminal Case Outcomes In Canada, Michael Trebilcock, Albert Yoon
Equality Before The Law? Evaluating Criminal Case Outcomes In Canada, Michael Trebilcock, Albert Yoon
Osgoode Hall Law Journal
One of our most strongly held ideals is that individuals receive equal treatment under the law. Incidents of wrongful conviction or wide disparities in sentencing, however, challenge this premise. While legal scholars have recently examined this premise, our understanding remains largely normative or anecdotal. Scholars have begun to identify factors that influence legal outcomes, yet this question has remained largely unexplored in Canada. This article seeks to advance this inquiry. Using unique data from both the Ontario courts and Legal Aid Ontario during 2007–2013, we find that outcomes in routine criminal cases vary in ways not summarily explained by differences …
Process And Reconciliation: Integrating The Duty To Consult With Environmental Assessment, Neil Craik
Process And Reconciliation: Integrating The Duty To Consult With Environmental Assessment, Neil Craik
Osgoode Hall Law Journal
As the duty to consult Aboriginal peoples is operationalized within the frameworks of government decision making, the relevant agencies are increasingly turning to environmental assessment (EA) processes as one of the principal vehicles for carrying out those consultations. This article explores the practical and theoretical dimensions of using EA processes to implement the duty to consult and accommodate. The relationship between EA and the duty to consult has arisen in a number of cases and a clear picture is emerging of the steps that agencies conducting EAs must carry out in order to discharge their constitutional obligations to Aboriginal peoples. …
Book Review: The Strategic Constitution: Understanding Canadian Power In The World By Irvin Studin, Stephen Paul Haigh
Book Review: The Strategic Constitution: Understanding Canadian Power In The World By Irvin Studin, Stephen Paul Haigh
Osgoode Hall Law Journal
This is a book review of The Strategic Constitution: Understanding Canadian Power in the World by Irvin Studin
Book Review: The Corporate Criminal: Why Corporations Must Be Abolished By Steve Tombs And David Whyte, Joan Brockman
Book Review: The Corporate Criminal: Why Corporations Must Be Abolished By Steve Tombs And David Whyte, Joan Brockman
Osgoode Hall Law Journal
This is a book review of The Corporate Criminal: Why Corporations Must Be Abolished by Steve Tombs and David Whyte
The Doctrine Of Discovery Reconsidered: Reflecting On Discovering Indigenous Lands: The Doctrine Of Discovery In The English Colonies, By Robert J Miller, Jacinta Ruru, Larissa Behrendt, And Tracey Lindberg, And Reconciling Sovereignties: Aboriginal Nations And Canada, By Felix Hoehn, Kent Mcneil
Osgoode Hall Law Journal
This is a review essay discussing two books: Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies, by Robert J Miller, Jacinta Ruru, Larissa Behrendt, and Tracey Lindberg, and Reconciling Sovereignties: Aboriginal Nations and Canada, by Felix Hoehn.
Dead Hands, Living Trees, Historic Compromises: The Senate Reform And Supreme Court Act References Bring The Originalism Debate To Canada, J. Gareth Morley
Dead Hands, Living Trees, Historic Compromises: The Senate Reform And Supreme Court Act References Bring The Originalism Debate To Canada, J. Gareth Morley
Osgoode Hall Law Journal
Recent American debates about the relationship between the historic political compromises underlying constitutional provisions and their contemporary judicial application have been largely ignored in Canada. The Supreme Court of Canada has only twice referred to originalism—and never positively. But in two 2014 decisions about how central institutions of government—the Senate and the Supreme Court of Canada itself—might be changed, the Court relied on the underlying historic political compromises to interpret the Constitution, rejecting arguments from the text or democratic principle. In this article, I consider how Canadian courts have looked to history in the past and in the 2014 decisions, …
Compact Is Back: The Supreme Court Of Canada’S Revival Of The Compact Theory Of Confederation, Sébastien Grammond
Compact Is Back: The Supreme Court Of Canada’S Revival Of The Compact Theory Of Confederation, Sébastien Grammond
Osgoode Hall Law Journal
The compact theory of Canadian Confederation is the idea that the Constitution is the product of a political agreement (or “compact”) among the country’s constitutive parts. Although the theory has been widely criticized, this article shows how the theory has recently been used by the Supreme Court of Canada to explain the origins of certain parts of the Constitution and to guide its interpretation, in particular in cases involving constitutional amendment and indigenous rights. It then discusses how the Court dealt with instances where one party’s consent to a foundational compact was vitiated or altogether lacking, and whether the Court’s …
From Principles To Rules: The Case For Statutory Rules Governing Aspects Of Judicial Disqualification, Jula Hughes, Philip Bryden
From Principles To Rules: The Case For Statutory Rules Governing Aspects Of Judicial Disqualification, Jula Hughes, Philip Bryden
Osgoode Hall Law Journal
The common law “reasonable apprehension of bias” test for judicial disqualification is highly fact- and context-specific. While there are good reasons for this approach as a general proposition, it also gives rise to considerable uncertainty for both judges and litigants in considering whether or not it is appropriate for a judge to sit in a marginal case. This article explores statutory judicial disqualification regimes in the United States, Germany, and Quebec to gain insights into how statutory rules can be employed to provide greater clarity to judges and litigants who are addressing situations that have the potential to give rise …
Reconsidering Copyright’S Constitutionality, Graham J. Reynolds
Reconsidering Copyright’S Constitutionality, Graham J. Reynolds
Osgoode Hall Law Journal
In 1996, in Compagnie Générale des Établissements Michelin – Michelin & Cie v National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) [Michelin], Justice Teitelbaum of the Federal Court (Trial Division) held both that specific provisions of the Copyright Act did not infringe the right to freedom of expression as protected under the Canadian Charter of Rights and Freedoms and that, even if they did, these provisions could be justified under s 1 of the Charter. Since Michelin, these conclusions have been treated by Canadian courts as settled. The purpose of this paper is to challenge these conclusions …
The Objectives And Principles Of The Wto Trips Agreement: A Detailed Anatomy, Alison Slade
The Objectives And Principles Of The Wto Trips Agreement: A Detailed Anatomy, Alison Slade
Osgoode Hall Law Journal
Article 7 (Principles) and Article 8 (Objectives) are prominent within the text of the WTO TRIPS Agreement, yet have figured sparingly in the reasoning of the Dispute Settlement Body (DSB). This discrepancy is accentuated when considered in light of three key factors. First, the pioneering step taken by TRIPS negotiators to include broad declarations of intent within the operative text. Second, the 2001 reinforcement given to these provisions in the Doha Declaration on TRIPS and Public Health. Finally, the verbatim replication of these provisions within other international IP instruments, notably, the Trans-Pacific Partnership, the Anti-Counterfeiting Trade Agreement and the WIPO …
Ps V Ontario: Rethinking The Role Of The Charter In Civil Commitment, Isabel Grant, Peter J. Carver
Ps V Ontario: Rethinking The Role Of The Charter In Civil Commitment, Isabel Grant, Peter J. Carver
Osgoode Hall Law Journal
In PS v Ontario, the Ontario Court of Appeal held that section 7 of the Charter requires that persons who are civilly committed for six months or more must have access to meaningful review over the conditions of their detention. In this paper, the authors argue that the decision has broad implications for provincial civil commitment regimes across the country. In particular, the Court’s analogy to the Criminal Code Review Board jurisprudence opens the door to a fuller recognition of the profound deprivation of liberty involved in civil commitments. An expanded role for civil review tribunals may be required, including …
No Refuge: Hungarian Romani Refugee Claimants In Canada, Sean Rehaag, Julianna Beaudoin, Jennifer Danch
No Refuge: Hungarian Romani Refugee Claimants In Canada, Sean Rehaag, Julianna Beaudoin, Jennifer Danch
Osgoode Hall Law Journal
From 2008 to 2012, thousands of Hungarian Roma sought asylum in Canada. Some political actors suggested that their claims were unfounded and demonstrated that Canada’s refugee processes were vulnerable to abuse. In contrast, advocates for refugees argued that persecution against Roma was rampant in Hungary and noted that hundreds of Hungarian Roma were granted refugee status in Canada. Much of this debate has occurred in an evidentiary vacuum. This article fills this vacuum through a qualitative and quantitative study of Hungarian Romani refugee claims. First, the context of the study is discussed. Then, the article explores the experiences of Hungarian …
The Conventions Of Constitutional Amendment In Canada, Richard Albert
The Conventions Of Constitutional Amendment In Canada, Richard Albert
Osgoode Hall Law Journal
Commentators have suggested that the unsuccessful national referendum to ratify the 1992 Charlottetown Accord created an expectation of popular participation requiring national referendal consultation in major reforms to the Constitution of Canada. In this article, I inquire whether federal political actors are bound by a constitutional convention of national referendal consultation for formal amendments to the basic structure of the Constitution of Canada. Drawing from the Supreme Court of Canada’s Patriation Reference, I suggest that we cannot know whether federal political actors are bound by such a convention until they are confronted with the question whether or not to hold …
Islamic Law And Constitution-Making: The Authoritarian Temptation And The Arab Spring, Mohammad Fadel
Islamic Law And Constitution-Making: The Authoritarian Temptation And The Arab Spring, Mohammad Fadel
Osgoode Hall Law Journal
In the wake of the Egyptian military coup of 3 July 2013, much commentary has focused on the religious-secular divide in Egypt as the principal division that laid the groundwork for the subsequent coup. Less attention has been paid to the profound divisions within religiously-minded Egyptian political actors regarding whether democratic or authoritarian government is more desirable from a religious perspective. This article explores the division between Islamist supporters of a “republican” conception of a modern Muslim constitutional and religious order, and Islamist supporters of an “authoritarian” conception of constitutional government in alliance with a state-supported religious establishment. The article …
Arbitrator Behaviour In Asymmetrical Adjudication (Part Two): An Examination Of Hypotheses Of Bias In Investment Treaty Arbitration, Gus Van Harten
Arbitrator Behaviour In Asymmetrical Adjudication (Part Two): An Examination Of Hypotheses Of Bias In Investment Treaty Arbitration, Gus Van Harten
Osgoode Hall Law Journal
This article reports on a study of potential systemic bias in the resolution of ambiguous legal issues by investment treaty arbitrators. It outlines tentative but significant findings that the arbitrators in general tended to favour (1) foreign investors over states overall, (2) foreign investors from major Western capital-exporting states over other foreign investors, and, albeit based on more limited data, (3) the United States as a respondent state over other respondent states. The evidence is derived from an extensive content analysis of the arbitrators’ resolution of fourteen legal issues that are contested among arbitrators or in secondary literature. The findings …
The Promise Of The Rule Of (Environmental) Law: A Reply To Pardy’S Unbearable Licence, Jocelyn Stacey
The Promise Of The Rule Of (Environmental) Law: A Reply To Pardy’S Unbearable Licence, Jocelyn Stacey
Osgoode Hall Law Journal
This short reply clarifies and defends the argument presented in “The Environmental Emergency and the Legality of Discretion in Environmental Law.” It responds to the arguments that were made, and that could have been made, in Pardy’s critique “An Unbearable Licence.” The reply further develops the public-justification conception of the rule of law, arguing that it is at home within Canadian public law. It also argues that this conception of the rule of law highlights possibilities for future research directions in Canadian environmental law.
Bordering The Constitution, Constituting The Border, Efrat Arbel
Bordering The Constitution, Constituting The Border, Efrat Arbel
Osgoode Hall Law Journal
It is an established principle in Canadian law that refugees present at or within Canada’s borders are entitled to basic constitutional protection. Where precisely these borders lie, however, is far from clear. In this article, I examine the Canadian border as a site at which to study the constitutional entitlements of refugees. Through an analysis of the Multiple Borders Strategy (MBS)--a broad strategy that re-charts Canada’s borders for the purposes of enhanced migration regulation--I point to a basic tension at play in the border as site. I argue that the MBS imagines and enacts the border in two fundamentally different …
Why I Don’T Teach Administrative Law (And Perhaps Why I Should?), Allan C. Hutchinson
Why I Don’T Teach Administrative Law (And Perhaps Why I Should?), Allan C. Hutchinson
Osgoode Hall Law Journal
This Commentary reflects upon the challenges of teaching Administrative Law today. Drawing upon the author’s own career trajectory and his commitment to a critical account of law and adjudication, the article seeks to question the foundations of both administrative law and critical theory. It offers no comprehensive or cogent plan as to what to do, but insists upon the relevance and importance of combining both legal theory and legal doctrine in a convincing pedagogical approach.
“By The Court”: The Untold Story Of A Canadian Judicial Innovation, Peter Mccormick
“By The Court”: The Untold Story Of A Canadian Judicial Innovation, Peter Mccormick
Osgoode Hall Law Journal
What do the BCE case of 2008, the Securities Reference case of 2010, the Senate Reform Reference case of 2014, and the Carter (assisted suicide) case of 2015 have in common? All are unanimous decisions of the Supreme Court of Canada in which the reasons for judgment—the explanation as to why the outcome is the legally and constitutionally appropriate one—are not attributed to any specific named judge or judges on the Supreme Court, but rather to a mysterious entity called THE COURT. Very few Supreme Court decisions take this form, and there was a time not that long ago when …