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2016

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Full-Text Articles in Law

Diversity, Transparency & Inclusion In Canada’S Judiciary, Samreen Beg Dec 2016

Diversity, Transparency & Inclusion In Canada’S Judiciary, Samreen Beg

Articles & Book Chapters

The purpose of this paper is to provide a high level overview of some of the issues and stumbling blocks Canada has encountered in building a diverse judiciary. Part 1 of the paper begins by providing a brief overview of the heterogeneous makeup of Canadian society against the homogenous makeup of the judiciary. This will provide a helpful backdrop from which to explore conceptual questions related to the question of why a diverse judiciary matters. Part 2 examines some of the historical questions and milestones in the judiciary related to diversity. Part 3 summarizes the judicial appointments processes and takes ...


Holmes's 'Path Of The Law' As Non-Analytic Jurisprudence, Dan Priel Jul 2016

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 ...


Canadian Civil Justice: Relief In Small And Simple Matters In An Age Of Efficiency, Jonathan Silver, Trevor C. W. Farrow Apr 2016

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 Apr 2016

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 ...


Registered Savings Plans And The Making Of Middle Class Canada: Toward A Performative Theory Of Tax Policy, Lisa Philipps Apr 2016

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 ...


The Order To Pay Money In Medieval Continental Europe, Benjamin Geva Apr 2016

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 ...


Protecting Reasonable Expectations: Mapping The Trajectory Of The Law, Edward J. Waitzer, Douglas Sarro Mar 2016

Protecting Reasonable Expectations: Mapping The Trajectory Of The Law, Edward J. Waitzer, Douglas Sarro

Articles & Book Chapters

The doctrine of reasonable expectations has evolved into a powerful tool for judicial and regulatory activism and, as a result, a bellwether for the trajectory of the law. The concept has broadened — both in scope and in the range of potential claimants. Yet it has been used to achieve goals that are remarkably consistent across different areas of law: first, to require powerful actors to treat stakeholders fairly, which entails treating them with honesty and avoiding actions that would impose unnecessary or disproportionate costs on them; second, to uphold the integrity of legal or regulatory regimes by remedying actions that ...


Praxis And The International (Human Rights) Law Scholar: Toward The Intensification Of Twailian Dramaturgy, Obiora C. Okafor Jan 2016

Praxis And The International (Human Rights) Law Scholar: Toward The Intensification Of Twailian Dramaturgy, Obiora C. Okafor

Articles & Book Chapters

The article critically reflects on the role of the TWAILian international (human rights) law scholar in the socio-economic and political struggles which take place outside the academe; focusing, for the most part, on our role as scholars in advancing struggles in favour of subaltern Third World peoples from within or in concert with international institutions and various kinds of what I will refer to in this paper as “on-the-ground” activist groups (such as social movements and NGOs). The article begins by examining some of the various ideas and conceptions of praxis, so as to be clear from the outset as ...


Outsourcing And Supply Chains In Canada, Eric Tucker, Leah F. Vosko, John Grundy, Alec Stromdahl Jan 2016

Outsourcing And Supply Chains In Canada, Eric Tucker, Leah F. Vosko, John Grundy, Alec Stromdahl

Articles & Book Chapters

While data on the extent of outsourcing by Canadian businesses is scant, there is general agreement that over the last several decades the phenomenon has increased and taken a variety of forms including the use of global supply-chains (offshoring) and domestic subcontracting (outsourcing).175 In this way, large businesses have been able to shed responsibility for the employees who actually perform the work. David Weil has aptly characterized this phenomenon as “fissuring”, which can take a variety of forms including sub-contracting, franchising, and other arrangements.176 A related phenomenon that will be addressed here is the use of temporary employment ...


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 Jan 2016

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.


Unappealing: An Assessment Of The Limits On Appeal Rights In Canada's New Refugee Determination System, Angus Gavin Grant, Sean Rehaag Jan 2016

Unappealing: An Assessment Of The Limits On Appeal Rights In Canada's New Refugee Determination System, Angus Gavin Grant, Sean Rehaag

Articles & Book Chapters

Canada’s refugee determination system was revised in 2012. One key feature of the new process is a quasi-judicial administrative appeal, on matters of both fact and law, at the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB). Under the new process, however, many claimants are denied access to the RAD.

This article assesses these limits on access to the RAD, drawing mostly on quantitative data obtained from the IRB and Citizenship and Immigration Canada through access to information requests. Our aim is to provide evidence-based analysis and recommendations for reform. Essentially, our conclusions are that the ...


Poverty In The Human Rights Jurisprudence Of The Nigerian Appellate Courts (1999-2011), Obiora C. Okafor, Basil E. Ugochukwu Jan 2016

Poverty In The Human Rights Jurisprudence Of The Nigerian Appellate Courts (1999-2011), Obiora C. Okafor, Basil E. Ugochukwu

Articles & Book Chapters

The major objective of this article is to examine the extent to which the human rights jurisprudence of the Nigerian appellate courts has been sensitive and/or receptive to the socio-economic and political claims of Nigeria’s large population of the poor and marginalized. In particular, the article considers: the extent to which Nigerian human rights jurisprudence has either facilitated or hindered the efforts of the poor to ameliorate their own poverty; the kinds of conceptual apparatuses and analyses utilized by the Nigerian courts in examining the issues brought before it that concerned the specific conditions of the poor; and ...


Technological Neutrality: Recalibrating Copyright In The Information Age, Carys Craig Jan 2016

Technological Neutrality: Recalibrating Copyright In The Information Age, Carys Craig

Articles & Book Chapters

This article aims to draw the connection between how we conceptualize legal rights over information resources and our capacity to develop technologically neutral legal norms in the information age. More specifically, it identifies and critically examines three competing approaches to the idea of technological neutrality apparent in copyright jurisprudence. Ultimately, it is argued that true technological neutrality requires not simply the seamless expansion of legal rights into new technological contexts, but the careful, contextual recalibration of rights and interests in light of shifting values and changing circumstances. As a normative principle, technological neutrality in copyright law thus demands a nuanced ...


Against Circumspection: Judges, Religious Symbols, And Signs Of Moral Independence, Benjamin Berger Jan 2016

Against Circumspection: Judges, Religious Symbols, And Signs Of Moral Independence, Benjamin Berger

Articles & Book Chapters

This chapter questions the interpretation of religious ­ signs and symbols— and the interpretive possibilities that emerge when we demand more from one another in thinking about such symbols— by ­ examining the question of judges and religious dress in the particular context of the judge’s role as wielding the coercive force of the state through the exercise of criminal punishment. I advance the argument that recent debates have proceeded on a misleadingly simplistic approach to understanding the meaning of signs of religious belonging and identity in this setting and that, with this, we miss an opportunity for a deeper understanding ...


Why Coywolf Goes To Court, Signa A. Daum Shanks Jan 2016

Why Coywolf Goes To Court, Signa A. Daum Shanks

Articles & Book Chapters

This article is an effort influenced by previous works considered part of "trickster" discourse. But unlike other trickster stories meant to illustrate First Nations’ contents and processes, this presentation creates a Métis-specific example of trickster methodology and knowledge. Similar to the historic role Métis individuals have had in Canadian history, this effort contains a type of "translator" system within its citations so that the main story parallels information about trends in Canadian legal analysis. By having this format, it is hoped that those less familiar with Métis courtroom struggles will gain insight into how the pursuit of Métis constitutionalism both ...


The Fictitious Payee After Teva V. Bmo: Has The Pendulum Swung Back Far Enough?, Benjamin Geva Jan 2016

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 ...


Canadian Strike Ballot And Notice Law: Barely A Tempest In A Teapot, Sara Slinn, Eric Tucker Jan 2016

Canadian Strike Ballot And Notice Law: Barely A Tempest In A Teapot, Sara Slinn, Eric Tucker

Articles & Book Chapters

This article locates strike ballot laws at the intersection of two of labour law’s primary goals, promoting collective bargaining by responsible unions and reducing industrial conflict. Depending on their design, strike ballot laws may aim to protect democratic voice or to create an obstacle to engaging in lawful strikes. Strike ballot requirements in Canada were initially imposed during World War II primarily to reduce industrial conflict. The requirement was controversial and after the war most provinces opted not to make a strike ballot a condition of lawful strike action. Between the 1960s and the late 1990s, however, strike ballot ...


Sovereignty And Indigenous Peoples In North America, Kent Mcneil Jan 2016

Sovereignty And Indigenous Peoples In North America, Kent Mcneil

Articles & Book Chapters

This article examines the concept of sovereignty and its application in the context of European colonization of North America. It seeks to define sovereignty so as to avoid Eurocentric notions that denied sovereignty to Indigenous peoples. The article does this by distinguishing between defacto and de jure sovereignty: the former depends on actual possession and control of a territory, whereas the latter depends on the application of a particular legal system. Unlike de facto sovereignty, which is empirical, de jure sovereignty depends on a choice of law. Because more than one legal system can be applied to territories occupied by ...


Baxian Tremf Anxieties And Patterns Of Norm Entrepreneurship In Canada-Nigerian Human Rights Engagements: A Theoretical Overview, Obiora C. Okafor Jan 2016

Baxian Tremf Anxieties And Patterns Of Norm Entrepreneurship In Canada-Nigerian Human Rights Engagements: A Theoretical Overview, Obiora C. Okafor

Articles & Book Chapters

The article argues that the evidence that has been systematically analyzed in the study that grounds this volume at once support and undermine certain elements of the two theoretical frameworks that grounded the research: Upendra Baxi’s germinal theory on the emergence to global dominance of a kind of “trade-related market-friendly human rights” (TREMF) paradigm/discourse/mentality, and Martha Finnemore and Karthryn Sikikink’s strategic social constructivist theory on the role of the norm entrepreneur in generating and driving the so-called human rights “norm life cycles.” The article then suggests, in consequence, that both of these theoretical frameworks require a ...


The Nature, Attainments, Problems And Prospects Of Canadian-Nigerian Human Rights Engagements: An Analytical Overview, Obiora C. Okafor Jan 2016

The Nature, Attainments, Problems And Prospects Of Canadian-Nigerian Human Rights Engagements: An Analytical Overview, Obiora C. Okafor

Articles & Book Chapters

By way of a fully developed conclusion, this article offers a broad analytical overview of the insights that have been jointly and severally generated by the main sub-studies on which the articles in this volume are based. It offers such overarching discussions, one after the other, in relation to the nature, attainments, problems, and prospects of Canadian-Nigerian international human rights engagements. Drawing upon these analytical insights, the article then makes some pertinent recommendations that are addressed to the relevant stakeholders, especially in Canada and Nigeria, i.e. policy-makers, practitioners and theorists alike (depending on which of the itemized points they ...


Canadian-Nigerian Human Rights Engagements (1999-2011): An Introduction, Obiora C. Okafor Jan 2016

Canadian-Nigerian Human Rights Engagements (1999-2011): An Introduction, Obiora C. Okafor

Articles & Book Chapters

More contemporary Canadian-Nigerian human rights engagements have occurred against the backdrop of a relatively long history of engagement in this area between the two countries, and alongside an even longer history of Canadian-Nigerian relations more generally. These are histories within which one must situate the human rights engagements between these countries during the specific period under study here. As is well known, Canada established diplomatic relations with Nigeria shortly after Nigeria’s independence from British colonial rule in 1960. Nigeria reciprocated in 1973. It is noteworthy that Canada has for several decades now funded or otherwise supported many human rights ...


Foreword Of Ubc Special Issue, Obiora C. Okafor Jan 2016

Foreword Of Ubc Special Issue, Obiora C. Okafor

Articles & Book Chapters

In 1997, the first graduate law student conference ever to be held at the University of British Columbia (UBC), and perhaps in all of Canada, was convened at its Green College. It was primarily organized by the present author (now a professor at the Osgoode Hall Law School) and Jaye Ellis (currently a professor of law at McGill University. Jaye and I also had the dedicated help and support of a number of other graduate law students. Critically, both of us profited immensely from the robust support, extraordinary commitment and expert guidance of Professor W. Wesley Pue, who at the ...


The Helping Profession : Can Pro Bono Lawyers Make Sick Children Well?, Lorne Sossin Jan 2016

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."