Law Commons^™

Book Review: Legalist Empire: International Law And American Foreign Relations In The Early Twentieth Century By Benjamin Allen Coates, William Heisey

Osgoode Hall Law Journal

This is a book review of Legalist Empire: International Law and American Foreign Relations in the Early Twentieth Century by Benjamin Allen Coates.

Anti-Social Behaviour, Expulsion From Condominium, And The Reconstruction Of Ownership, Douglas C. Harris

Osgoode Hall Law Journal

Statutory condominium regimes facilitate massive increases in the density of owners. The courts are responding to this spatial reorganization of ownership by reconstructing what it means to be the owner of an interest in land. This article analyzes the ten cases over eight years (from 2008 to 2015) in which Canadian courts grant eviction and sale orders against owners within condominium for anti-social behaviour. The expulsion orders are new. Until these cases, ownership within condominium in Canadian common law jurisdictions was thought to be as robust as ownership outside condominium such that owners could not be expelled from condominium for …

Innovation In Healthcare, Innovation In Law: Does The Law Support Interprofessional Collaboration In Canadian Health Systems?, Nola M. Ries

Osgoode Hall Law Journal

Interprofessional collaboration in health care describes a model of practice in which multiple health professionals work together in a team-based approach to patient care. A growing body of literature demonstrates that interprofessional collaboration advances health care quality and safety, improves patient outcomes and experiences of care, and promotes job satisfaction among health professionals. Governments and health organizations across Canada are working to advance interprofessional health care delivery. This article examines the importance of law in supporting a shift to interprofessional collaboration in Canadian health care and discusses two key aspects of the legal context in which health practitioners work. First, …

Pursuing A Reconciliatory Administrative Law: Aboriginal Consultation And The National Energy Board, Matthew J. Hodgson

Osgoode Hall Law Journal

Environmental assessment within the process of regulatory review is recognized as the preferred means for carrying out the duty to consult and accommodate Aboriginal rights in administrative decisions over proposed resource development. Recent evidence suggests that integrating the duty to consult into National Energy Board (NEB) proceedings and subsuming the law of Aboriginal consultation under principles of administrative justice have not advanced the goal of reconciliation. This article considers whether the statutory mandate of the National Energy Board requires it to have sufficient regard to Aboriginal rights in a manner consistent with the adjudication of constitutional issues in administrative law. …

Re-Thinking Executive Control Of And Accountability For The Agency, Benedict Sheehy, Don Feaver

Osgoode Hall Law Journal

The organization of many Western governments has undergone dramatic structural and procedural changes over the past century. A large portion of public administration previously done by departments within a more centralized structure of government has been shifted to administrative units, often referred to as “agencies” that fall outside the constitutional core—an “agencified” model. This article investigates the historical contexts and legal developments associated with these changes and illuminates how “agencification” has altered the balance between executive control powers and executive accountability obligations. It examines how the organizational changes have been addressed in both the responsible government models of the United …

Book Review: Law’S Religion: Religious Difference And The Claims Of Constitutionalism By Benjamin L. Berger, Howard Kislowicz

Osgoode Hall Law Journal

This is a book review of Law’s Religion: Religious Difference and the Claims of Constitutionalism by Benjamin L Berger.

Book Review: Unlocking Memories: Cognitive Interviewing For Lawyers By Geoff Coughlin, Jason M. Chin, Vanja Ginic

Osgoode Hall Law Journal

This is a book review of Unlocking Memories: Cognitive Interviewing for Lawyers by Geoff Coughlin.

Book Review: Civil Justice, Privatization, And Democracy By Trevor C. W. Farrow, Barbara A. Billingsley

Osgoode Hall Law Journal

This is a book review of Civil Justice, Privatization, and Democracy by Trevor C. W. Farrow.

Beyond Ip–The Cost Of Free: Informational Capitalism In A Post Ip Era, Guy Pessach

Osgoode Hall Law Journal

Critical copyright scholarship rightly emphasizes the social costs of ordering cultural production through proprietary intellectual property law regimes. This scholarship also celebrates the virtues of free content and free access, particularly in digital domains. The purpose of this article is to question this critique, which tends to pair proprietary intellectual property protection with informational capitalism and the commodification of culture. This article argues that the drawbacks of cultural commodification and informational capitalism are also apparent in market-oriented media environments that are based on free distribution of content. The article makes a novel contribution by untying the seemingly Gordian knot binding …

Leaving Labour Law’S Pragmatic And Purposive Fortress Behind: Canadian Union Successor Rights Law As A Case Study, Pascal Mcdougall

Osgoode Hall Law Journal

In this article, I analyze a series of Canadian cases on union successor rights defining the circumstances in which labour rights should be transferred to a successor entity in the context of business sales, restructuring and subcontracting. My analysis casts doubt on a globally influential theory of legal interpretation, which I call the “old legality.” According to this theory, labour law is made not through conventional legal reasoning but through non-legal, pragmatic, and purposive applications of loose industrial relations standards. I claim that the old legality paradigm is analytically inaccurate and has the perverse effect of normalizing the status quo …

Ethics Of Biological Sampling Research With Aboriginal Communities In Canada, Behdin Nowrouzi, Lorrilee Mcgregor, Alicia Mcdougall, Donna Debassige, Jennifer Casole, Christine Nguyen, Behnam Nowrouzi-Kia, Deborah Mcgregor

Articles & Book Chapters

The objective of this paper is to identify key ethical issues associated with biological sampling in Aboriginal populations in Canada and to recommend approaches that can be taken to address these issues. Our work included the review of notable biological sampling cases and issues. We examined several significant cases (Nuu-chah-nult people of British Columbia, Hagahai peoples of Papua New Guinea and the Havasupai tribe of Arizona) on the inappropriate use of biological samples and secondary research in Aboriginal populations by researchers. Considerations for biological sampling in Aboriginal communities with a focus on community-based participatory research involving Aboriginal communities and partners …

Comment Letter To The Sec In Response To Its Concept Release On Business And Financial Disclosure Required By Regulation S-K, 81 F.R. 23915, Cynthia Williams

Commissioned Reports, Studies and Public Policy Documents

The Center for International Environmental Law, Center of Concern, Environmental Investigation Agency-US, Foundation Earth, Friends of the Earth-United States, Greenpeace USA, Rainforest Action Network, and the Sierra Club welcome the opportunity to comment on the recent Securities and Exchange Commission (“SEC”) concept release on “Business and Financial Disclosure Required by Regulation S-K” (“Concept Release”).1In this Comment Letter, we address five issues:(1) the growth of socially-responsible investment (SRI)(Concept Release questions 15, 17); (2) the definition of materiality (question6); (3) the materiality of sustainability information (questions216-23); and (4) the limits of voluntary disclosure initiatives to meet the information needs of today’s investors, …

Holmes's 'Path Of The Law' As Non-Analytic Jurisprudence, Dan Priel

Articles & Book Chapters

Despite being widely read and the source of numerous oft-cited aphorisms “The Path of the Law” remains elusive. To put the matter starkly: What is its thesis? Does it have one? How can we reconcile its matter-of-factly opening pages and its almost mystical conclusion? For some this was just proof that Holmes was a superficial and contradictory thinker; for others it suggested that “Path” should be read a series of interesting insights and arresting phrases, and nothing more. In this essay I suggest reading Holmes’s famous speech as an essay with a thesis about, well, the path of the law. …

Further Research Update: Paralegals, The Cost Of Justice And Access To Justice: A Case Study Of Residential Tenancy Disputes In Ottawa, David Wiseman

Canadian Forum on Civil Justice

A further and final year of data gathered for this case study has reinforced the message that paralegals, who purportedly offer more affordable and accessible legal services than lawyers, are continuing to make a significant contribution to the resolution of residential tenancy disputes in Ottawa, but only for landlords and, largely, for corporate landlords. The reinforcement of this message across a data set now spanning five years of residential tenancy dispute cases for the Eastern Region of the Landlord and Tenant Board of Ontario further solidifies a conclusion that who provides more affordable and accessible legal services can have an …

International Law And American Foreign Policy: Revisiting The Law-Versus-Policy Debate, Hengameh Saberi

Articles & Book Chapters

Confronting significant foreign policy questions, US international lawyers persistently frame their debates as a conflict between law and policy. The article suggests that this opposition, which has defined the US international legal reasoning since World War Two, often leads the debates to a deadlock and constrains the best potential of international law.

Aboriginal Title And Indigenous Governance: Identifying The Holders Of Rights And Authority, Kent Mcneil

All Papers

Aboriginal rights, including Aboriginal title to land, are communal rights that are vested in Indigenous collectivities that are connected to the specific Indigenous groups that occupied and used land prior to European colonization of Canada. Identifying the present-day collectivities that hold these rights is therefore essential. This research paper examines the jurisprudence on this matter in relation to three categories of court decisions: Aboriginal title cases, Aboriginal rights cases apart from title, and duty to consult cases. Analysis of the case law reveals that identification of current rights holders is treated as a matter of fact that depends in part …

Design And Conduct Of The Cost Of Justice Survey, David Northrup, Ab Currie, Trevor C. W. Farrow, Lesley Jacobs, Nicole Aylwin

Canadian Forum on Civil Justice

The “Everyday Legal Problems and the Cost of Justice in Canada” survey (“CoJ survey”) 1 is a national everyday legal problems survey carried out as part of the Canadian Forum on Civil Justice’s Cost of Justice project (CFCJ). 2 The CoJ survey was conducted by the Institute for Social Research (ISR), York University, on behalf of the CFCJ, between September 2013 and May 2014. The 3,051 main study interviews were completed with randomly selected adults from randomly selected households over land line telephones. An additional set of 212 cell phone interviews were also conducted (discussed further below). The interviews averaged …

Everyday Legal Problems And The Cost Of Justice In Canada: Overview Report, Trevor C. W. Farrow, Ab Currie, Nicole Aylwin, Lesley Jacobs, David Northrup, Lisa Moore

Canadian Forum on Civil Justice

Law and legal problems are part of everyday life. If you have ever been harassed at work, unfairly fired or evicted, divorced, not received support payments, disputed a will or a cell phone contract, or had your credit rating challenged, you may have already experienced one of these types of everyday legal problems. If so, you are not alone. Almost half (48.4%) of Canadians over 18 will experience at least one civil or family justice problem over any given three-year period. Even though many Canadians do not understand, feel connected to or welcomed by the justice system,2 essentially all of …

Rural And Remote Access To Justice Infographic, Canadian Forum On Civil Justice

Canadian Forum on Civil Justice

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The Data Deficit: The Case For Improving Court Records For Future Access To Justice Research – Fact Sheet, Lisa Moore

Canadian Forum on Civil Justice

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Everyday Legal Problems And The Cost Of Justice In Canada: Survey, David Northrup, Ab Currie, Trevor C. W. Farrow, Lesley Jacobs, Nicole Aylwin

Canadian Forum on Civil Justice

The Cost of Justice project (2011-2017) examines the social and economic costs of Canada’s justice system. It is guided by two questions: What is the cost of delivering access to justice? And what is the cost of not delivering access to justice? Comprised of leading researchers investigating various dimensions of access to justice and cost across the country, the Cost of Justice project is producing empirical data that will inform the future of access to justice in Canada and abroad. The lead research team includes: Trevor C.W. Farrow (Principal Investigator), Nicole Aylwin, Les Jacobs, Lisa Moore, and Diana Lowe.

Canadian Civil Justice: Relief In Small And Simple Matters In An Age Of Efficiency, Jonathan Silver, Trevor C. W. Farrow

Articles & Book Chapters

Canada is in the midst of an access to justice crisis. The rising costs and complexity of legal services in Canada have surpassed the need for these services. This article briefly explores some obstacles to civil justice as well as some of the court-based programmes and initiatives in place across Canada to address this growing access to justice gap. In particular, this article explains the Canadian civil justice system and canvasses the procedures and programmes in place to make the justice system more efficient and improve access to justice in small and simple matters. Although this article does look briefly …

Conceptions Of Authority And The Anglo-American Common Law Divide, Dan Priel

Articles & Book Chapters

This essay seeks to explain the puzzle of the divergence of American law from the rest of the common law world through the lens of legal theory. I argue that there are four competing ideal-type theories of the authority of the common law: reason, practice, custom, and will. The reason view explains the authority of the common law in terms of correspondence to the demands of pure practical reason; the practice view sees the authority of the common law as derived from the expertise of practitioners (especially judges and practice-oriented academics) who try to develop the common law as a …

Confronting (In)Security: Forging Legitimate Approaches To Security And Exclusion In Migration Law, Angus Gavin Grant

PhD Dissertations

Perceived connections between security concerns and migration are a central preoccupation of our time. This dissertation explores how the preoccupation has played out in the Canadian context and asserts that a basic and common infirmity of administrative decision-making in this domain is a lack of justification. The dissertation commences by exploring foundational debates within immigration theory about borders, exclusion, the rule of law and the role of justification in decision-making in liberal democracies, particularly in times of perceived emergency. From there, the dissertation moves on to an exploration of immigration inadmissibility determinations in Canada, with particular attention to the emergence …

Professional Discretion And The Law: Impact Of Actuaries On The Underfunding And Decline Of Private Sector Single Employer Defined Benefit Pensions In Canada: How Many "Post Nortel" Pension Fiascos Are Brewing In Canada?, Paul Charles Walker

LLM Theses

Considering that private sector single employer defined benefit pension plans must be fully funded by law, the legal issue emanating from their systemic underfunding is whether or not actuaries have been using their discretion in a manner which is within a reasonable interpretation of the margin of manoeuvre contemplated by the legislature, in accordance with the principles of the rule of law. This thesis discusses the merits of potential legal remedies to arrest the underfunding and decline in the number of private sector single employer defined benefit pensions in Canada, including the introduction of single employer target benefit plans, increasing …

Virtual Currencies And Blockchains: A Primer, Benjamin Geva

Editorials and Commentaries

With the advent of virtual currencies and blockchain technologies the global payments landscape may be irreversibly transformed. This bulletin is designed to present basic concepts underlying this transformation.

Registered Savings Plans And The Making Of Middle Class Canada: Toward A Performative Theory Of Tax Policy, Lisa Philipps

Articles & Book Chapters

Politicians across Canada’s political spectrum strive to position themselves as defenders of the middle class, and tax policy is a prime vehicle for making this pitch. Any tax reform proposal can be examined critically to evaluate its likely distributional impacts and how well these map onto specific definitions of the middle class. This article attempts, however, a different project. Drawing on the ideas of Judith Butler, it analyzes instead how tax policy produces middle-class identity through the very process of claiming to advance middle-class interests. The case study for this purpose is the rise of tax incentives for saving as …

Volume 89, Issue 14 (2016)

Obiter Dicta

No abstract provided.

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 …

The Order To Pay Money In Medieval Continental Europe, Benjamin Geva

Articles & Book Chapters

This chapter discusses the evolution of non-cash payment mechanisms in the course of the development of the medieval banking system in Europe. The chapter sets out three categories of a medieval continental financier. The first category, pawnbrokers, consisted of lenders who lent out of their capital primarily for consumption who played no role in the development of the payment system. The second category consisted of moneychangers who accepted deposits and whose practices were rooted in in the manual exchange of coins. The third category consisted of exchange bankers whose practices emerged from the exchange of money in long distance trade. …