Law Commons^™

Are Publication And Citation Counts Reliable Indicators Of Research Productivity Or Impact?, Sean Rehaag

Articles & Book Chapters

Universities are increasingly using metrics such as publication and citation counts to measure faculty research productivity and impact, and to compare productivity and impact across departments and institutions. Canadian law schools are facing pressure to adopt similar metrics. In this article the author argues that publication and citation counts are not reliable indicators of research productivity or impact.

Climate Change Is Very Real - And So Is The Risk Of Litigation, Cynthia Williams

Editorials and Commentaries

According to a recent analysis, close to 900 climate-change cases have been filed in “24 countries and in the European Union, with 654 cases filed in the U.S. and over 230 cases filed in all other countries combined,” as of March 2017.

So far, many of these cases have been filed against government entities, either for their failures to regulate consistent with their rhetoric in international negotiations, or for failing to protect their citizens’ health and future prospects according to long-standing, common law public trust doctrines.

The Cost Of Experiencing Everyday Legal Problems Related To Physical And Mental Health, Lisa Moore, Ab Currie, Nicole Aylwin, Trevor C. W. Farrow, Paul Di Libero

Canadian Forum on Civil Justice

In 2016, spending on health care in Canada amounted to approximately $228.1 billion (or an average of $6,299 per person). In several provinces and territories health care spending per capita surpassed $7,000. These amounts represent a significant economic commitment to spending on health care. And while many of the costs associated with maintaining and providing health care are unavoidable, there are also many external factors that adversely affect physical and mental health that, if addressed, can offer avenues for reduced spending and contribute to quality of life. This summary report explores the relationship between health issues, civil and family justice …

The Cost Of Experiencing Everyday Legal Problems Related To Loss Of Employment And Loss Of Housing, Lisa Moore, Ab Currie, Nicole Aylwin, Trevor C. W. Farrow

Canadian Forum on Civil Justice

In 2014, the Canadian Forum on Civil Justice (CFCJ) conducted a national survey to determine the costs, extent and consequences of serious civil and family justice problems experienced by the Canadian public. Findings from the CFCJ’s national “Everyday Legal Problems and the Cost of Justice in Canada” survey (Cost of Justice survey) confirm that civil and family legal problems result in significant monetary costs to the individuals who experience them as well as to the publicly funded services that individuals access for support when dealing with legal problems. With Canadians spending almost as much to resolve their legal problems as …

The Cost Of Experiencing Everyday Legal Problems Related To Social Assistance, Lisa Moore, Ab Currie, Nicole Aylwin, Trevor C. W. Farrow, Quinlin Gilbert-Walters, Paul Di Libero

Canadian Forum on Civil Justice

Experiencing a civil or family justice problem in Canada can come at a significant price. Outside of the monetary legal costs that Canadians incur when trying to resolve serious civil and family justice problems, many Canadians also pay for legal problems with high stress, emotional health problems and physical health problems. In addition, serious civil and family justice problems have also been shown to cause or exacerbate other family, personal and social problems and result in significant temporal costs that often come in the form of lost opportunity, reduced productivity, and reduced time and energy for building and maintaining family …

An Evaluation Of The Cost Of Family Law Disputes: Measuring The Cost Implication Of Various Dispute Resolution Methods, Joanne J. Paetsch, Lorne D. Bertrand, John-Paul E. Boyd

Canadian Forum on Civil Justice

The Canadian Forum on Civil Justice contracted the Canadian Research Institute for Law and the Family to conduct a project measuring the cost implications of various dispute resolution methods for resolving family law disputes. Despite the greater emphasis in recent years on the importance of access to justice and the need to resolve family matters outside the court, there is little research on the effectiveness of various dispute resolution methods, and even less on the cost of the different approaches.

Brief On The Investigation Of Canadian Nationals For War Crimes And Crimes Against Humanity In Afghanistan, Craig Scott

Commissioned Reports, Studies and Public Policy Documents

Acting Director of the Nathanson Centre, Professor Craig Scott, has submitted a brief to Prosecutor Fatou Bensouda of the International Criminal Court providing evidentiary reasons why Canadians in the military and civilian chain of command during Canada ‘s presence in the war in Afghanistan should fall within the scope of the Prosecutor’s efforts to investigate the “situation in Afghanistan” with respect to war crimes committed by the Taliban, the CIA and Afghan National Security Forces. Potential criminal responsibility arises from Canada ‘s policy and practices on the transfer of captives to both the US and Afghanistan. The brief also highlights …

The Possibility Of Naturalistic Jurisprudence: Legal Positivism And Natural Law Theory Revisited, Dan Priel

Articles & Book Chapters

Contemporary legal philosophy is predominantly anti-naturalistic. This is true of natural law theory, but also, more surprisingly, of legal positivism. Several prominent legal philosophers have in fact argued that the kind of questions that legal philosophers are interested in cannot be naturalized, such that a naturalistic legal philosophy is something of a contradiction in terms. Against the dominant view I argue that there are arguable naturalistic versions of both legal positivism and natural law. Much of the essay is dedicated to showing that such views are possible: I identify naturalistic versions of a “natural law” view, a “positivist” view, as …

From 'Decolonized' To Reconciliation Research In Canada: Drawing From Indigenous Research Paradigms, Deborah Mcgregor

Articles & Book Chapters

When the Honorable Justice Murray Sinclair, Chair of the Truth and Reconciliation Commission (TRC) was asked the one message that non-Aboriginal Canadians can learn from the work of the TRC, he said “put the relationship back into balance”. Sinclair stressed that in order to achieve reconciliation and facilitate balance in the relationship we need to change the way non-Aboriginal people are educated about Aboriginal peoples. Justice Sinclair also stated that racism and colonialism are firmly embedded structurally, systemically and institutionally in Canada. This has to change. This paper will explore how the findings from the TRC can transform the theory …

Book Review: Choreographing Copyright: Race, Gender, And Intellectual Property Rights In American Dance By Anthea Kraut, Carys Craig

Articles & Book Chapters

Dance may be one of the world’s oldest art forms, but it is a relatively recent entrant into the sphere of copyright law—and remains something of an afterthought amongst copyright lawyers and scholars alike. For copyright scholars, at least, that should change with the publication of Anthea Kraut’s CHOREOGRAPHING COPYRIGHT: RACE, GENDER, AND INTELLECTUAL PROPERTY RIGHTS IN AMERICAN DANCE. Kraut performs a fascinating exploration of the evolution of choreographic copyright—sweeping, political, polemical—that should leave no one in doubt as to the normative significance of choreography as a subject matter of copyright law and policy. Nor should doubt remain as to …

The Inherent Right Of Indigenous Governance, Kent Mcneil

All Papers

I would like to start by acknowledging and thanking the Algonquin Nation, on whose unceded territory we are meeting.

When the Dominion of Canada was created in 1867 by the UK Parliament, the BNA Act gave the Parliament of Canada exclusive jurisdiction over “Indians, and Lands reserved for the Indians”. Parliament used this authority to enact the Indian Act in 1876. That statute gave the Canadian government the power to impose the band council system on First Nations without their consent.

The governance authority of First Nation band councils is therefore delegated authority – it comes from the Indian Act …

Consultation Paper On Tax Planning Using Private Corporations, Jinyan Li

Commissioned Reports, Studies and Public Policy Documents

I am a tenured professor at Osgoode Hall Law School of York University, teaching and researching in the area of tax law. I am the lead author of Principles of Canadian Income Tax Law (9th ed.) (Li, Magee and Wilkie, 2017) and International Taxation in Canada (3rd ed.) (Li, Cockfield and Wilkie, 2014). I am also the lead editor of Income Tax at 100 Years (Li, Wilkie and Chapman, 2017). I am a member of Panel of Experts Reviewing Federal Tax Expenditures (the Expert Panel) (http://www.fin.gc.ca/access/tt-it/rfte-edff-eng.asp), but was not involved in drafting the consultation paper on Tax Planning Using Private …

The Bandung Ethic And International Human Rights Praxis: Yesterday, Today And Tomorrow, Obiora C. Okafor

Articles & Book Chapters

Between April 18 and 24, 1955, a group of twenty-nine African and Asian states gathered in Bandung, Indonesia, for the very first Afro-Asian summit in recorded human history. Almost every single African and Asian state that was independent at the time was represented at Bandung. It is no wonder then that this moment is widely regarded in the literature as “the foundational moment of the Third World.” Issued on April 24, 1955, the Conference’s Final Communiqué captured what I refer to in this chapter as the Bandung ethic. This conference also inspired a long line of subsequent meetings of the …

Indigenous Sovereignty And The Legality Of Crown Sovereignty: An Unresolved Constitutional Conundrum, Kent Mcneil

All Papers

Let me start by acknowledging and thanking the Enoch Cree Nation, on whose territory we are meeting.

So here we are, 150 years after Confederation, and yet the legal basis for Crown sovereignty over Canada remains uncertain.

The standard explanation is that the Crown acquired sovereignty over French Canada by cession of Acadia (French possessions in what became the Maritime Provinces) by the Treaty of Utrecht in 1713, and by conquest of New France in 1759-60 and cession by the Treaty of Paris in 1763. However, this leaves unexplained how France got sovereignty over territories that were occupied and controlled …

Everyday Legal Problems And The Cost Of Justice In Canada: Gender (Data Report), Lisa Moore

Canadian Forum on Civil Justice

The national "Everyday Legal Problems and the Cost of Justice in Canada" survey was conducted with a random sample of 3,263 adults aged 18 years and older, of which 3,051 resided in households with landlines and 212 used cell phones only. The data presented in the following pages are based on the 3,051 land line calls. Weighted to the Canadian population, this represents an estimated 23,590,697 people from the ten provinces.

Everyday Legal Problems And The Cost Of Justice In Canada: Age (Data Report), Lisa Moore

Canadian Forum on Civil Justice

The national "Everyday Legal Problems and the Cost of Justice in Canada" survey was conducted with a random sample of 3,263 adults aged 18 years and older, of which 3,051 resided in households with landlines and 212 used cell phones only. The data presented in the following pages are based on the 3,051 land line calls. Weighted to the Canadian population, this represents an estimated 23,590,697 people from the ten provinces.

Everyday Legal Problems And The Cost Of Justice In Canada: Born In Canada (Data Report), Lisa Moore

Canadian Forum on Civil Justice

The national "Everyday Legal Problems and the Cost of Justice in Canada" survey was conducted with a random sample of 3,263 adults aged 18 years and older, of which 3,051 resided in households with landlines and 212 used cell phones only. The data presented in the following pages are based on the 3,051 land line calls. Weighted to the Canadian population, this represents an estimated 23,590,697 people from the ten provinces.

Everyday Legal Problems And The Cost Of Justice In Canada: Education (Data Report), Lisa Moore

Canadian Forum on Civil Justice

The national "Everyday Legal Problems and the Cost of Justice in Canada" survey was conducted with a random sample of 3,263 adults aged 18 years and older, of which 3,051 resided in households with landlines and 212 used cell phones only. The data presented in the following pages are based on the 3,051 land line calls. Weighted to the Canadian population, this represents an estimated 23,590,697 people from the ten provinces.

Everyday Legal Problems And The Cost Of Justice In Canada: Region (Data Report), Lisa Moore

Canadian Forum on Civil Justice

The national "Everyday Legal Problems and the Cost of Justice in Canada" survey was conducted with a random sample of 3,263 adults aged 18 years and older, of which 3,051 resided in households with landlines and 212 used cell phones only. The data presented in the following pages are based on the 3,051 land line calls. Weighted to the Canadian population, this represents an estimated 23,590,697 people from the ten provinces.

Fit Or Fitting In: Deciding Against Normal When Reproducing The Future, Roxanne Mykitiuk, Isabel Karpin

Articles & Book Chapters

‘Normal’ is a contentious term. Descriptively, ‘normal’ represents ‘what is’ as a statistical average. However, the term also represents normative or prescriptive content about what is ‘right’ or ‘what should be’. Correspondingly, abnormality is a deviation from the norm. It is both a factual exception to the average and a value judgement about what is a ‘wrong’ state of being. Pursuing ‘normal’ or deciding against it can be a defining moment in the high technology environment of assisted reproduction. Here, we explore notions of normalcy articulated through legal and policy regimes around screening and testing of gamete and embryo donors. …

Source Water Protection Planning For Ontario First Nations Communities: Case Studies Identifying Challenges And Outcomes, Leslie Collins, Deborah Mcgregor, Stephanie Allen, Craig Murray, Chris Metcalfe

Articles & Book Chapters

After the Walkerton tragedy in 2000, where drinking water contamination left seven people dead and many suffering from chronic illness, the Province of Ontario, Canada implemented policies to develop Source Water Protection (SWP) plans. Under the Clean Water Act (2006), thirty-six regional Conservation Authorities were mandated to develop watershed-based SWP plans under 19 Source Protection Regions. Most First Nations in Ontario are outside of these Source Protection Regions and reserve lands are under Federal jurisdiction. This paper explores how First Nations in Ontario are attempting to address SWP to improve drinking water quality in their communities even though these communities …

Migrant Workers And Fissured Workforces: Cs Wind And The Dilemmas Of Organizing Intra-Company Transfers In Canada, Eric M Tucker

Articles & Book Chapters

Canadian temporary foreign worker programs have been proliferating in recent years. While much attention has deservedly focused on programs that target so-called low-skilled workers, such as seasonal agricultural workers and live-in caregivers, other programs have been expanding, and have recently been reorganized into the International Mobility Program (IMP). Streams within the IMP are quite diverse and there are few legal limits on their growth. One of these, intra-company transfers (ICTs), is not new, but it now extends beyond professional and managerial workers to more permeable and expansive categories. As a result, unions increasingly face the prospect of organizing workplaces where …

Closing The Employment Standards Enforcement Gap, An Agenda For Change, Leah F. Vosko, John Grundy, Eric Tucker, Andrea M. Noack, Mary Gellatly, Rebecca Casey, Mark P. Thomas, Guliz Akkaymak, Parvinder Hira-Friesen

Commissioned Reports, Studies and Public Policy Documents

Precarious employment is increasing in Ontario. A growing share of Ontario’s private sector employees earns low wages while a shrinking portion belongs to unions. These trends are fueled by changes in the structure of Ontario’s labour force. In many industries, including accommodation and food services, administrative services, and cleaning, workplaces are being transformed through greater use of contracting out, franchising, and extended supply chains. These ways of structuring work contribute to driving working conditions downward.

Engaging The Power Of Community To Expand Legal Services To Low-Income Ontarians, Ab Currie

Canadian Forum on Civil Justice

The clinic–intermediary partnerships/legal health check-up is an approach to service delivery that recognizes the need to create a strong mechanism to achieve outreach and to provide holistic and integrated services to disadvantaged people. This is a response to a solid body of research, consistent with much clinical experience by practitioners, that there is a high prevalence of unmet legal need among the population, that people often do not recognize the legal issues embedded in the everyday problems they experience, that for this and other reasons they typically do not seek appropriate assistance with legal problems in a timely manner, and …

Factors That Support Indigenous Involvement In Multi-Actor Environmental Stewardship, Nicholas J. Reo, Kyle P. Whyte, Deborah Mcgregor, Ma (Peggy) Smith, James F. Jenkins

Articles & Book Chapters

Regional, multi-actor environmental collaborations bring together diverse parties to achieve environmental protection and stewardship outcomes. Involving a range of participants helps involve alternative forms of knowledge, expertise, and perspectives; it may also present greater challenges in reaching agreements, particularly when both Indigenous and non-Indigenous parties are involved. The authors conduct a cross-case study of 39 regional partnerships involving Indigenous nations from the Great Lakes basin of North America with the aim of determining the factors that enable Indigenous partners to remain engaged in multi-actor collaborations. Six characteristics influenced Indigenous nations’ willingness to remain engaged: respect for Indigenous knowledges, control of …

Independent Accountability Needed For Canadian Mining Companies Abroad, Shin Imai, Charis Kamphuis, Penelope Simons

Editorials and Commentaries

Over 20,000 people from the mining industry gathered in Toronto for the annual conference of the Prospectors and Developers Association of Canada last week. This is known as one of the largest mining conferences in the world and reflects Canada’s worldwide dominance in the mining industry.

However, some Canadian mining companies have come under criticism for human rights violations associated with their projects overseas. Most recently, the Justice and Corporate Accountability Project released a detailed report documenting over 400 people harmed, including over 40 deaths over a 15-year period, in Latin America alone, associated with Canadian mining activity. Three cases …

Open Letter To The Prime Minister Of Canada: Signed By Eighty-Six Proffesors Calling For Independent Investigation Of Allegations Against Mining Companies, Shin Imai

Editorials and Commentaries

As part of Prof. Imai's push to encourage the government to establish an ombudsperson for the extractive sector.

Canadian Access To Justice Initiatives: Justice Development Goals Status Report, Lisa Moore, Nicole Aylwin, Trevor C. W. Farrow

Canadian Forum on Civil Justice

One of the keys to understanding what needs to be done in the area of access to justice in civil and family matters is to first understand what is already being done. That is the goal of this first ever national survey (“Survey’) on the Action Committee on Access to Justice in Civil and Family Matters’ (“Action Committee”) nine Justice Development Goals. This Survey, in support of this first (and hopefully regular) Status Report (“Report”), is based on the Action Committee’s A Roadmap for Change report that offers six guiding principles for change and a ninepoint Access to Justice Roadmap.”1 …

Status Report: Working Data Document, Lisa Moore, Nicole Aylwin, Trevor C. W. Farrow

Canadian Forum on Civil Justice

No abstract provided.

Canadian Access To Justice Initiatives: Justice Development Goals Status Report, Trevor C. W. Farrow, Lisa Moore, Nicole Aylwin

Commissioned Reports, Studies and Public Policy Documents

One of the keys to understanding what needs to be done in the area of access to justice in civil and family matters is to first understand what is already being done. That is the goal of this first ever national survey (“Survey’) on the Action Committee on Access to Justice in Civil and Family Matters’ (“Action Committee”) nine Justice Development Goals. This Survey, in support of this first (and hopefully regular) Status Report (“Report”), is based on the Action Committee’s A Roadmap for Change report that offers six guiding principles for change and a ninepoint Access to Justice Roadmap.” …