Law Commons^™

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 …

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 …

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 …

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.

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 …

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 …

Towards An Anishinabe Research Paradigm: Theory And Practice., Deborah Mcgregor

Articles & Book Chapters

As this volume attests to, in recent years there has been a remarkable emergence of Indigenous research scholarship both internationally and within Canada. Indigenous theory, paradigms, and methods inform research practices which take on many forms, reflecting the diversity of Indigenous nations. Many scholars, Indigenous and non-Indigenous alike, have sought to decolonize past and current research approaches and advance Indigenous approaches and methods of research (Louis, 2007). Some more recent efforts have focused specifically on the revitalization of Indigenous research traditions (Archibald, 2008; Kovach, 2003; Wilson, 2008). Anishinaabe research is a form of reclaiming our stories and knowledge through personal …

Book Review - Larry Savage And Charles Smith, Unions In Court: Organized Labour And The Charter Of Rights And Freedoms, Eric Tucker

Articles & Book Chapters

The constitutionalization of labour rights in Canada is one of the most remarkable and, perhaps, unexpected developments in the 36 year history of the Charter of Rights and Freedoms. Few observers in 1982 would have predicted that the Charter rights of freedom of expression and association would provide constitutional protection for picket-line activity, collective bargaining, and strikes. Indeed, for some critical observers, the advent of the Charter was viewed as an ominous development, advancing the neo-liberal project of degrading and bypassing democratic institutions to insure the maintenance of conditions favourable to capital accumulation and the power of economic elites. …

Dismissal Due To Business Reasons In Canada, Eric Tucker, Christopher Grisdale

Articles & Book Chapters

Canada is a liberal market economy and as such the law places few restrictions on the employer’s freedom to dismiss an employee. In particular, the law places no restriction on the freedom of employers to dismiss employees for business reasons. However, dismissed employees are entitled to certain rights, the most important of which is notice of termination or pay in lieu of notice.

The Debate That Never Should Have Been: Dworkin, Hart, And The Analytical Project, Allan C. Hutchinson

Articles & Book Chapters

As with most other things, the fortunes of jurisprudence ebb and flow. After an extended period of scholarly dominance, the past few years have witnessed a relative decline in its significance and prominence. This is no bad thing because jurisprudence has been trapped in an increasingly narrow debate characterized by its esoteric confines and analytical ambitions-what is the nature of law? There appeared to be a brief moment when other more expansive and less restrictive options for disciplinary development seemed possible. However, any reports of the demise of analytical jurisprudence now seem premature: the posthumous publication of a dated essay …

Using Incentives To Increase Hiv/Aids Testing By Sex Workers: Evidence From A Randomized Field Experiment In China, Margaret Boittin

Articles & Book Chapters

Can incentives increase the use of HIV/AIDS testing in criminalized populations? Lawbreakers engaged in activities that place them at heightened risk of HIV/AIDS infection fear that engaging with the state to request an HIV test could increase their likelihood of incurring sanctions for violating the law. This article reports on a randomized field experiment that evaluates whether material incentives can spur lawbreakers to seek state assistance. Sex workers in Beijing, China, were randomly assigned to receive an in‐kind incentive equivalent to $1 (control group) or $15 (treatment group) for getting an HIV test. Fifteen dollars corresponds to the average amount …

Religious Freedom In Canada: A Crucible For Constitutionalism, Benjamin Berger

Articles & Book Chapters

This article examines three axes around which contemporary Canadian debates on freedom of religion are turning: the status and protection of group and collective religious interests; the emergence – and instability – of state neutrality as the governing ideal in the management of religious difference; and the treatment of Indigenous religion. Each is discussed as a key thematic and doctrinal development emerging from recent activity in the freedom of religion jurisprudence in Canada. Each is also an instance, the article suggests, of religion doing its particularly effective work of exposing the fundamental tensions and dynamics in Canadian constitutionalism more generally.

The 'Jus' Of Use: Trademarks In Transition, Bita Amani, Carys Craig

Articles & Book Chapters

Changes to Canada's Trade-marks Act will soon permit, for the first time, the registration and enforcement of unused trademarks. Far from a mere legal technicality or practical exigency, this shift fundamentally alters the nature of trademarks and the trademark system. Traditionally, it is the use of trade indicia in the marketplace that determines title and acquisition of trademark rights; use that defines the scope and duration of rights; and use that gives rise to claims of infringement. By virtue of the "Jus of use", the trademark system has remained, over time, reasonably true to its rationale, encouraging and rewarding honest …

Not All Law Is An Artifact: Jurisprudence Meets The Common Law, Dan Priel

Articles & Book Chapters

Brian Leiter has recently suggested that anyone who denied law's artifactuality, "the extravagance of their metaphysical commitments would.., be a subject for psychological, not philosophical investigation." There is a sense in which he is unquestionably right. If by artifact we mean the product of human effort, the claim is obviously true, indeed so obviously true that I do not know anyone who denies it. After some light interrogation it turns out that even some of the usual suspects have to be released without charges. It is accepted by John Finnis, who described law as "a cultural object, constructed, or ... …

The "Family" - And "Families" In Law: A Review Of Archana Parashar And Francesca Dominello, The Family In Law, Mary Jane Mossman

Articles & Book Chapters

"Once upon a time, things were easy for family lawyers. Their object of study was clearly marked out (marriage, divorce, and their consequences), while theoretical debate about the subject was rare or non-existent Although it is difficult to locate this Garden of Eden in real time, most family lawyers would share the perception that things have become more complex of late [And] allied to this, there has been an explosion of theoretical interest in law and the family."

Two decades after this assessment by John Dewar, The Family in Law offers a significant and sophisticated appraisal of the law's engagement …

Interim Relief: National Report For Canada, Trevor C. W. Farrow, Jonathan Silver

Articles & Book Chapters

Evolving litigation poses many challenges to litigants and their counsel before final adjudication. Canadian courts have fashioned various remedies to meet these challenges in order to preserve and maintain the court's authority to secure a just result.

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 …

Chapter 8: Indigenous Belonging: Membership And Identity In The Undrip: Articles 9, 33, 35, And 36, Shin Imai, Kathryn Gunn

Articles & Book Chapters

The recognition of Indigenous peoples' right to determine their own membership is crucial for their ability to meaningfully exercise their right to self-determination. The Declaration addresses rights of membership directly in Article 9 (right to belong), 33 (right to determine membership), 35 (right to determine responsibilities of members), and 36 (right to maintain relations across borders). Together, these provisions reinforce the right of Indigenous peoples to define themselves, both in terms of membership and geographic scope.

Article 6 – Women With Disabilities, Roxanne Mykitiuk, Ena Chadha

Articles & Book Chapters

The Convention on the Rights of Persons with Disabilities (‘CRPD’ or ‘Convention’) is a milestone achievement for women and girls with disabilities, with its inclusion of a gender-sensitive approach and Article 6, which speaks directly to gender-disability discrimination. Prior to the CRPD, most international human rights instruments failed to address both disability and gender in their provisions. Many instruments were attuned to either gender to the exclusion of disability, or disability to the exclusion of gender. The recognition of the unique experiences of gender and disability-based discrimination animates the spirit behind several of the CPRD’s provisions and, specifically, the content …

'What Gets Measured Gets Done': Exploring The Social Construction Of Globalized Knowledge For Development, Ruth Buchanan, Kimberley Byers, Kristina Mansveld

Articles & Book Chapters

The project of international development can be understood as a way of seeing the world that is both constituted by and interwoven with evolving processes of measurement, comparison and quantification. Drawing on the sociological insight that regimes of measurement can never be ‘neutral’ representations of external ‘objects’, but are instead actively engaged in shaping what can be known, this chapter critically examines the ways in which the production of globalized rankings and metrics are imbricated with the production of the social and economic hierarchies that development as a project seeks to ameliorate. The chapter illustrates the mechanisms and effects of …

Liberal Constitutionalism And The Unsettling Of The Secular, Benjamin Berger

Articles & Book Chapters

This chapter argues that certain features of our constitutional theories and practices have been more dependent than we have heretofore acknowledged on an implicit faith in the character and success of secularism. An assumption about the “secular” nature of the social world has lent certain resources to liberal constitutional theory and made possible particular ideas about the nature of contemporary constitutionalism. Yet the conviction that our political and social lives can be satisfyingly described as secular has been seriously destabilized by experience and theory alike. A simple faith in secularism thus unsettled, certain gaps or shortcomings in prevailing accounts of …

What Humility Isn’T: Responsibility And The Judicial Role, Benjamin Berger

Articles & Book Chapters

In recent years, academic literature has given some attention to humility as an important adjudicative principle or virtue. Drawing inspiration from a Talmudic tale, this chapter suggests that the picture of judicial humility painted in this literature is not only incomplete, but even potentially dangerous so. Seeking to complete the picture of what this virtue might entail, this piece explores the idea that humility is found in awareness of one’s position and role in respect of power, and a willingness to accept the burdens of responsibility that flow from this. The chapter examines elements of Chief Justice McLachlin’s criminal justice …

La Relativité De La Souveraineté De Jure Au Canada, 1600–2018, Kent Mcneil

Articles & Book Chapters

This paper examines European assertions of sovereignty in what is now Canada by distinguishing between de facto and de jure sovereignty. De facto sovereignty requires actual exercise of authority in a territory, whereas de jure sovereignty is an abstract concept that depends on the application of a specific legal system. De jure sovereignty is relative because, while it may be valid in one legal system, it is not necessarily valid in other legal systems. A choice of law question is therefore involved that raises an issue of legitimacy. The paper concludes that, although Canada has de facto sovereignty over its …

Wage And Inequalities In Canada (2018), Eric Tucker, Isaac Handley

Articles & Book Chapters

Canada is a federal state and, pursuant to its constitution, labour and employment law is principally a matter of provincial jurisdiction. The federal government’s powers in this field are limited to the federal public service and federally regulated businesses, which is estimated to cover about 10% of the labour force. Therefore, there are no nationally applicable laws governing the minimum wage or employment discrimination. In the discussion that follows, we refer to the common features that can be found in all or most Canadian jurisdictions, but draw principally upon the Province of Ontario, Canada’s most populous province, for specific examples.

Treaty Canoe, Ruth Buchanan, Jeffery G. Hewitt

Articles & Book Chapters

'Treaty Canoe' is an admittedly complex object to select for the present collection. As an artwork which is an assembly of made and found objects as well as a performance (in its making), its meaning is both layered and evolving. And yet, its evocation of both the promise and peril of international law in colonial North America is unmistakable. In 'Treaty Canoe', 'document, object, and location cohere to scrutinize the logics of colonialism, sovereignty and the question of responsibility that inheres in both'. As a collection of objects both art and law, tool and text, past and present, 'Treaty Canoe' …