Law Commons^™

Improving Access To Justice: Do Contingency Fees Really Work?, Allan C. Hutchinson

Articles & Book Chapters

While not touted as a universal panacea for access problems, contingency fees have received general praise as an important and justice-improving initiative. By back-loading the payment of legal fees, the assumption is that the interests of clients and litigants will be better served. I challenge that received wisdom. While the rise of contingency fee agreements between lawyers and clients has increased the number of people who can afford lawyers and make successful claims, the more challenging issue is whether that increase is being achieved at too high a price to clients and litigants – while more people are able to …

Replaying The Past: Roles For Emotion In Judicial Invocations Of Legislative History, And Precedent, Emily Kidd White

Articles & Book Chapters

Legal reasoning in the common law tradition requires judges to draw on concepts, and examples that are meant to resonate with a particular emotional import and operate in judicial reasoning as though they do. Judicial applications of constitutional rights are regularly interpreted by reference to past violations (either through precedent, contextual framings, and/or legislative history), which in turn elicit a series of emotions which work to deepen and intensify judicial understandings of a right guarantee (freedom of association, freedom of expression, equality, security of the person, etc.). This paper examines the way in which invocations of past political histories, and …

Conflict Of Laws, Janet Walker

Articles & Book Chapters

In our highly interconnected world, questions about court jurisdiction, the enforcement of judgments, and applicable law now arise in every field of endeavour and every walk of life. Accordingly, just as with other members of the public, so too can members of the LGBTQ2+ community expect to be affected directly and indirectly by developments in the conflict of laws. However, there are some implications of the conflict of laws that have special significance for members of the LGBTQ2+ community in connection with personal status and family relations. This chapter focuses on the issues arising in these areas.

This chapter considers …

Including Indigenous Knowledge Systems In Environmental Assessments: Restructuring The Process, Rachel Arsenault, Carrie Bourassa, Sibyl Diver, Deborah Mcgregor, Aaron Witham

Articles & Book Chapters

Indigenous peoples around the world are concerned about the long-term impacts of industrial activities and natural resource extraction projects on their traditional territories. Environmental impact studies, environmental risk assessments (EAs), and risk management protocols are offered as tools that can address some of these concerns. However, these tools are not universally required in jurisdictions, and this Forum intervention considers whether these technical tools might be reshaped to integrate Indigenous communities’ interests, with specific attention to traditional knowledge. Challenges include unrealistic timelines to evaluate proposed projects, community capacity, inadequate understanding of Indigenous communities, and ineffective communicatio, all of which contribute to …

Reconciliation, Colonization, And Climate Futures, Deborah Mcgregor

Articles & Book Chapters

It is my argument that any climate change policy that is put forward internationally (Paris Climate Agreement), nationally (Pan-Canadian Framework on Clean Growth and Climate Change), or provincially (Ontario’s Climate Change Action Plan) must consider the rights and interests of Indigenous peoples as well as historical and ongoing processes of colonization. It is recognized, internationally and in Canada, that Indigenous peoples are more vulnerable to the impacts of climate change than other peoples due to distinct connections to the natural world.

Eligible Non-Participation In Canadian Social Welfare Programs, Stephanie Ben-Ishai, Jennifer Robson, Saul Schwartz

Articles & Book Chapters

To be effective in meeting their policy or political goals, social programs must reach the intended target groups. Many social programs, however, have low take-up rates. We examine three illustrative federal programs targeted to lower income Canadians and note that efforts by government agencies to serve all they intend to serve vary considerably. In this paper we discuss the sources of eligible non-participation and present estimates of its extent. We point out that the Canada Revenue Agency (CRA) plays a critical role in all three Canadian social welfare programs. We find that the legislative framework governing the CRA may be …

Of Tails And Dogs: Standards, Standardisation And Innovation In Assessment, Paul Maharg, Julian Webb

Articles & Book Chapters

The title of the conference from which some of the chapters in this book spring was '50 Years of Assessment in Legal Education'. The conference was an opportunity to look back, but also to look forward and think about how our legacy was formed in the last half century, and what of it we wanted to carry forward and shape differently in the future. In this chapter, we shall begin by giving a brief snapshot of legal education reform movements currently taking place in the Common Law world. We shall take one example of a recent consultation project in England …

Carrying Little Sticks: Is There A ‘Deterrence Gap’ In Employment Standards Enforcement In Ontario, Canada?, Eric Tucker, Leah F. Vosko, Rebecca Casey, Mark Thomas, John Grundy, Andrea M. Noack

Articles & Book Chapters

This article assesses whether a deterrence gap exists in the enforcement of the Ontario Employment Standards Act (ESA), which sets minimum conditions of employment in areas such as minimum wage, overtime pay and leaves. Drawing on a unique administrative data set, the article measures the use of deterrence in Ontario’s ESA enforcement regime against the role of deterrence within two influential models of enforcement: responsive regulation and strategic enforcement. The article finds that the use of deterrence is below its prescribed role in either model of enforcement. We conclude that there is a deterrence gap in Ontario.

Environmental Justice And The Hesitant Embrace Of Human Rights, Dayna Nadine Scott

Articles & Book Chapters

This chapter explores some of the tensions inherent in employing ‘rights strategies’ in environmental justice movements. Using the example of a judicial review application brought by Indigenous environmental justice activists in Canada demonstrates the symbolic power of using rights-based language for environmental justice, but also underscores the serious procedural, logistical and resource barriers that frustrate these groups in their attempts to deploy litigation tactics. Legal scholars need to think critically about ‘rights-talk’ and confront the hard questions about its utility for advancing environmental justice. In working with communities, we must learn to listen to what communities want before we default …

If There Can Only Be ‘One Law’, It Must Be Treaty Law. Learning From Kanawayandan D’Aaki, Dayna Nadine Scott, Andrée Boisselle

Articles & Book Chapters

The paper stems from a research collaboration with the Anishini community of Kitchenuhmaykoosib Inninuwug (KI), known as the people of Big Trout Lake in the far north of Ontario. In the face of renewed threats of encroachment by extractive industries onto their homelands, our research team visited the community on the invitation of leadership in 2017. The community was engaged in strategic planning and reflection on the work that they have done in recent years to articulate and record their own laws for the territory, and to gain recognition for those laws from settler governments. Between 2008 and 2018, …

Supreme Court Of Canada Cases Strengthen Argument For Municipal Obligation To Discharge Duty To Consult: Time To Put Neskonlith To Rest, Angela D’Elia Decembrini, Shin Imai

Articles & Book Chapters

Can municipalities infringe Aboriginal or treaty rights without consulting the affected Indigenous group? In Neskonlith Indian Band v. Salmon Arm (City), the British Columbia Court of Appeal answered this question in the affirmative, finding that the city of Salmon Arm did not need to consult the Neskonlith First Nation about impacts from the construction of a shopping mall. In what was technically obiter dicta, the Court permitted the municipal project to proceed, and told the First Nation that its only recourse was to complain to the provincial government in a separate proceeding.

Payment Transactions Under The E.U. Second Payment Services Directive – An Outsider’S View, Benjamin Geva

Articles & Book Chapters

In its proposal for a Directive on payment services in the internal market (hereafter: the Proposal), the Commission of the European Communities (“the Commission”) purported to provide for “a harmonised legal framework” designed to create “a Single Payment Market where improved economies of scale and competition would help to reduce cost of the payment system.” Being “complemented by industry’s initiative for a Single Euro Payment Area (SEPA) aimed at integrating national payment infrastructures and payment products for the euro-zone,” the Proposal was designed to “establish a common framework for the Community payments market creating the conditions for integration and rationalisation …

The Humour In My Tumour: Respecting Legal Capacity In Health-Care Decision-Making, Roxanne Mykitiuk, Reshma Valliappan

Articles & Book Chapters

Article 12 CRPD guarantees persons with disabilities the right to equal recognition before the law and the right to enjoy legal capacity on an equal basis with others in all aspects of life. It is the right to have one’s decisions legally recognised. Reshma’s decision not to take medication prescribed for schizophrenia was not accepted and respected by the physician. Instead, the physician implied that Reshma would be denied any further medical care for her current symptoms until she complied with a pharmaceutical-based treatment course for her psychiatric condition. Thus, Reshma would have had to take drugs against her will …

Myth, Inference And Evidence In Sexual Assault Trials, Lisa Dufraimont

Articles & Book Chapters

In sexual assault cases, the ability to distinguish myths and stereotypes from legitimate lines of reasoning continues to be a challenge for Canadian courts. The author argues that this challenge could be overcome by clearly identifying problematic inferences in sexual assault cases as prohibited lines of reasoning, while allowing the defence to bring forward evidence that is logically relevant to the material issues so long as it does not raise these prohibited inferences.

This paper advances that judges should take a broad view of relevance as an evidentiary approach in the adjudication of sexual assault cases. This approach allows for …

Assessing Adler: The Weight Of Constitutional History And The Future Of Religious Freedom, Benjamin Berger

Articles & Book Chapters

This article approaches Adler v. Ontario as a distinctively useful perch from which to survey the history and future of the constitutional interaction of law and religion. The case is positioned at a provocative place in the arc of the development of this interaction and the article uses the reasons in Adler to expose and explore some themes that shape not only our religion jurisprudence, but Canadian constitutionalism more generally. The article begins by examining what the majority's heavy reliance on religion's place in constitutional history suggests about the competing logics at work in Canadian constitutional life. That discussion leads …

A Chief And Court In Transition: The Wagner Court And The Constitution, Jamie Cameron

Articles & Book Chapters

One chief justice’s departure and another’s arrival marks an important transition for any apex court. Richard Wagner was appointed Chief Justice of Canada on December 17, 2017, following Beverley McLachlin’s retirement after seventeen years as leader of the Court. Early on, Chief Justice Wagner distanced himself from the McLachlin tradition of consensus building among judges, openly stating that he would welcome and value dissent and affirming, more recently, that dissent is in the Supreme Court’s “DNA”. In 2018, the Court’s judges responded to that cue with a burst of concurring and dissenting opinions that exposed significant differences of opinion among …

Cryptocurrencies And The Evolution Of Banking, Money And Payments, Benjamin Geva

Articles & Book Chapters

This paper explores cryptocurrencies against the backdrop of the history of monetary, banking and payment systems, from a legal perspective. Providing a historical overview beginning in Antiquity, it explores just how today’s cyber revolution compares against some key predicate operations, and situates cryptocurrencies in the context of the long-running evolution of bank payment intermediation and monetary development.

Methods And Severity: The Two Tracks Of Section 12, Benjamin Berger, Lisa Kerr

Articles & Book Chapters

This paper argues that there are two main routes – two tracks – by which one can arrive at the fundamental wrong at the heart of section 12 of the Charter. On the “methods track”, the state can run afoul of section 12 by using intrinsically unacceptable methods of treatment or punishment. For historical reasons, jurisprudence on this track is not well developed in Canada, though it would clearly prohibit the death penalty and most methods of corporal punishment. On the “severity track”, the concern is with excessive punishment. Here, even where the state has chosen a legitimate method of …

Truth Be Told: Redefining Relationships Through Indigenous Research, Deborah Mcgregor

Articles & Book Chapters

The recently released report of the Truth and Reconciliation Commission of Canada (TRC) contains recommendations which seek to deconstruct the highly colonial relationship between Indigenous peoples and the Canadian state. This chapter explores how the TRC’s findings might be applied in transforming the theory and practice of academic research as part of renewing and re-defining relationships between Indigenous peoples and broader Canadian society. I will address the fundamental bias that exists in the historical and contemporary scholarship that either explicitly or implicitly frames Indigenous peoples as “problems” to be solved.

Enforcing Employment Standards For Migrant Agricultural Workers In Ontario, Canada: Exposing Underexplored Layers Of Vulnerability, Leah F. Vosko, Eric Tucker, Rebecca Casey

Articles & Book Chapters

Over 50,000 migrant agricultural workers are employed in Canada each year, almost half of whom are destined for the Province of Ontario. These workers are among the most vulnerable in the country and therefore most in need of labour and employment law protection. One important source of employment rights in Ontario is the Employment Standards Act (ESA), which establishes basic minimum entitlements in areas such as wages, working time, and vacations and leaves. Drawing on an analysis of the Ontario Ministry of Labour’s(MOL’s) Employment Standards Information System (ESIS), a previously untapped administrative data source containing information on all of Ontario’s …

Regulating Strikes In Essential Services - Canada, Eric Tucker

Articles & Book Chapters

This chapter was written as a part of a comparative law project examining the regulation of strikes in essential services. It describes and analyses Canada's experience with strikes in essential services, including the historical development of essential service strike regulation, Canada's shifting understanding of essentiality and, most recently, the implications of constitutional labour rights, including the right to strike, for essential service strike regulation. It also looks at the law in action through a consideration of the application of these laws in their specific contest.

Critical Copyright Law & The Politics Of ‘Ip’, Carys J. Craig

Articles & Book Chapters

Since its explosion late in the twentieth century, the field of intellectual property scholarship has been a vibrant site for critical legal theorizing. Indeed, it is arguable that US-based intellectual property scholarship effectively generated a resurgence or ‘second wave’ of Critical Legal Studies. Exploring critical engagement with the very idea of ‘intellectual property’ and its conceptual counterpart, the ‘public domain,’ this chapter suggests that a vast swath of copyright scholarship that has bloomed over the past few decades, as copyright has expanded in its reach and relevance, builds implicitly or explicitly on insights gleaned from legal realism, Critical Legal Studies, …

An Empirical Comparison Of Insider Trading Enforcement In Canada And The United States, Anita Anand, Stephen J. Choi, Adam C. Pritchard, Poonam Puri

Articles & Book Chapters

Canadian and American securities market regulators have differing approaches to enforcement. In this article, we present the results of an empirical study comparing a highly salient aspect of securities enforcement—insider trading—in Canada and the United States. We reach a number of important findings. First, adjusting for trading volume, Canada has a greater intensity of enforcement when compared to the U.S. Second, Canadian securities regulators primarily concern themselves with insider trading in Canadian companies, while the SEC brings more enforcement actions involving insider trading in companies incorporated outside the U.S. Third, we do not find significant differences in the fraction of …

Law As A Social Construction And Conceptual Legal Theory, Dan Priel

Articles & Book Chapters

A currently popular view among legal positivists is that law is a social construction. Many of the same legal philosophers also argue that before one can study law empirically, one needs to know what it is. At the heart of this paper is the claim that these two propositions are inconsistent. It presents the following dilemma: if law is a social construction like all other social constructions, then legal philosophers have to explain what philosophers have to contribute to understanding it. Studies of social constructions are typically conducted by historians, sociologists, and others, who explain them (and what they are) …

Contract Damages, Moral Agency, And Henry James’ The Ambassadors, Jennifer Nadler

Articles & Book Chapters

This paper enters the dispute over the proper interpretation of the expectation measure of damages in contract law. Should damages be measured by the plaintiff’s financial loss or by the cost of acquiring a substitute performance (“cost of cure”)? I begin by presenting a moral (as opposed to an economic or a pragmatic) justification for the traditional contract principle that a plaintiff has a right to compensation for the financial loss flowing from breach but no right to performance. I do so by showing that implicit in the principle that the plaintiff has a right to compensation for financial loss …

The Louisiana Purchase: Indian And American Sovereignty In The Missouri Watershed, Kent Mcneil

Articles & Book Chapters

Like a historical mantra repeated time and again, it is asserted that the Louisiana Purchase doubled the size of the United States. As this assertion takes for granted that the Purchase included the entire Missouri watershed, it rests on the assumption that France had a valid title thereto because, as a matter of common sense and international law, France could only convey title to territory that it actually owned. But what basis is there for the assumption that France had sovereign title to the vast territory drained by the Missouri River that stretches from the Mississippi River to the Rocky …

Critical Perspectives On The Scholarship Of Assessment And Learning In Law: Preface, Craig Collins, Vivien Holmes, Paul Maharg

Articles & Book Chapters

In this Preface to the first volume of the series Assessment in Legal Education, we outline the scope of the series, the reasons for its development and the ways it may assist those involved with legal education generally.

Critical Perspectives On The Scholarship Of Assessment And Learning In Law: Introduction - Legal Education Assessment In England, Alison Bone, Paul Maharg

Articles & Book Chapters

In this Introduction, we set out some of the innovative practices and themes arising from assessment in legal education in England. It is fair to say that assessment theory has not attracted the same rigorous analysis and implementation that has attended the subject in other disciplines such as medical education. Much of the theoretical innovations tend to be syncretic, adaptations from other disciplines. Nevertheless, there are examples of genuine innovations when England is viewed alongside other jurisdictions, and where it has occurred we have noted it in this Introduction. Needless to say, but we shall say it anyway the field …

Prometheus, Sisyphus, Themis: Three Futures For Legal Education Research, Paul Maharg

Articles & Book Chapters

In almost every jurisdiction regulatory review of legal education has become more complex. It has not been matched by concomitant increase in the sophistication and complexity of the empirical research base, nor in the organisation of that research. As we pointed out in the LETR Report (2013), there are significant gaps in legal educational research. There is little co-ordination of research initiatives between academy and regulatory bodies on a sustained basis. There is little organisation by the academy of the increasing volume of research that it produces on legal education: a significant lack of longitudinal studies, very few ongoing and …

The Employment Standards Enforcement Gap And The Overtime Pay Exemption In Ontario, Mark P. Thomas, Leah F. Vosko, Eric Tucker, Mercedes Steedman, Andrea M. Noack, John Grundy, Mary Gellatly, Lisa Leinveer

Articles & Book Chapters

Employment Standards (es) legislation sets minimum terms and conditions of employment in areas such as wages, working time, vacations and leaves, and termination and severance. es legislation is designed to provide minimum workplace protections, particularly for those with little bargaining power in the labour market. In practice, however, es legislation includes ways in which legislated standards may be avoided, including through exemptions that exclude specified employee groups, fully or partially, from legislative coverage. With a focus on the Ontario Employment Standards Act, this article develops a case study of exemptions to the overtime pay provision of the act and regulations …