Law Commons^™

Access To Justice And The Legal Profession: Three Questions, Trevor C. W. Farrow

Articles & Book Chapters

There is an increasing recognition – from all sectors of the legal system, including the former Chief Justice of Canada – that justice is in crisis. Even though we have some of the best judges, lawyers, and law schools in the world, delays in the civil, criminal, and family justice systems are massive and increasing. Costs of legal help are going up. An increasing number of people are trying to represent themselves. Legal aid is available only for the least well-off and only for a limited range of services. Many communities feel alienated and do not see themselves represented by …

How Civil Procedure Fails (And Why Administrative Justice Is Better), Allan C. Hutchinson

Articles & Book Chapters

The demand for more and better procedural fairness is a rallying-cry that receives almost universal support. All participants in the legal process – litigants, judges, legislators and lawyers – maintain that the justice of any outcome can be both affected by the quality of the procedures relied upon and offset by the failure to provide access to appropriate and balanced procedural opportunities. Indeed, unless losing litigants or applicants think that they are getting a fair shake when it comes to the procedures used, there will be even greater dissatisfaction with losing than otherwise might be the case. However, while good …

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 …

Approach To Constitutional Principles And Environmental Discretion In Canada, Lynda Collins, Lorne Sossin

Articles & Book Chapters

One of the most important and least scrutinized areas of environmental policy is the exercise of administrative discretion. Those committed to environmental action tend to focus on law reform, international treaties, and political commitments - for example, election proposals for carbon taxes and pipelines, or environmental protections in global protocols and trade agreements. Many proponents of stronger environmental protection have focused their attention on the goal of a constitutional amendment recognizing an explicit right to a healthy environment, while others seek recognition of environmental protection within existing Charter rights. As the rights conversation evolves, advocates must continue to grapple with …

Designing Administrative Justice, Lorne Sossin

Articles & Book Chapters

This article explores the adaptation of design thinking to administrative justice. The human centred design perspective has been missing from most debates surrounding the design and reform of administrative tribunals in Canada. As a result, the author asserts that the administrative justice system in Canada at all levels of government (federal, provincial, municipal, and Indigenous) is generally fragmented, poorly coordinated, and under-resourced in relation to the needs of its users and has multiple barriers of entry.

This article is divided into two parts. The first part reviews the development of design thinking in the context of legal services and legal …

Legitimate Expectations In Canada: Soft Law And Tax Administration, Sas Ansari, Lorne Sossin

Articles & Book Chapters

This chapter examines the relationship between legitimate expectations and soft law. In what circumstances can an agency’s guidelines create law — or at least legally enforceable expectations? At first glance, the answer would appear obvious. The key reason for developing soft law is to provide guidance and transparency as to the process (and sometimes the substance) of administrative action. Soft law by its nature gives rise to expectations. Whether those expectations, in turn, give rise to legal effects is decidedly less clear. In fact, this question has vexed Canadian administrative law. Nowhere are questions of soft law and legitimate expectations …

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 bars …

Administrative Justice And Adjudicative Ethics In Canada, Lorne Sossin

Articles & Book Chapters

In this article, I explore both the idea and practice of adjudicative ethics in the context of administrative justice in Canada. This is a large topic and one which is particularly timely as accountability, transparency and conflict of interest are all renewed areas of interest for governments across Canada. Elsewhere, I have suggested it is time to approach administrative justice as a justice system rather than as a disparate set of tribunals and boards. One way in which this coordination can be expressed is through a shared process of accountability for the conduct of adjudicators. My hope in elaborating adjudicative …

Reflections On The U.K. Tribunal Reform: A Canadian Perspective, Lorne Sossin

Articles & Book Chapters

I have been following the United Kingdom reforms with interest, and in particular, the journey Lord Justice Carnwath has been pursuing with the Tribunal community in the United Kingdom (UK). The establishment of a unified Tribunals system arose out of a desire to bring tribunals more expressly under the umbrella of the justice system in order to better serve parties coming before those tribunals. The rationales for the UK reform were set out in a 2001 review conducted by Sir Andrew Leggett -- “Tribunals for Users -- One system One Service.”I would like to offer a Canadian perspective on the …

Future Of Administrative Justice, Lorne Sossin

Articles & Book Chapters

This is the introductory talk, programme, and keynote to the "Future of Administrative Justice" Symposium.

I Can See Clearly Now: Videoconference Hearings And The Legal Limit On How Tribunals Allocate Resources, Lorne Sossin, Zimra Yetnikoff

Articles & Book Chapters

Videoconferencing has generated ambivalence in the legal community. Some have heralded its promise of unprecedented access to justice, expecialy for geographicaly remote communities. Others, however, have questioned whether videoconferencing undermines fairness. The authors explore the impl'cations of videoconferencing through the case study of the Ontario Landlord and Tenant Tribunal, which is one of the busiest adjudicative bodies in Canada. This anaysis hig hghts concerns both with videoconferendng in princp4 and in practice. While such concerns traditionally have been the province of public administration, the authors argue that a tribunals allocation of resources and the suffidengy of its budget are also …

Hard Choices And Soft Law: Ethical Codes, Policy Guidelines And The Role Of The Courts In Regulating Government, Lorne Sossin, Charles Smith

Articles & Book Chapters

The authors examine a number of examples of "soft law": written and unwritten instruments and influences which shape administrative decision making Rather than rendering bureaucratic processes more transparent and cohesive, or fostering greater accountability and consistency among decision-makers, "soft law" in this context frequently reinforces artificial divisions. Moreover, it insulates decisions and decision-makers from the kinds of critical inquiry typically associated with "hard law. " If it is to realize its potential as a bridge between law and policy, and lend meaning to core principles - like fairness and reliability - soft law ought to be subjected to similarly critical …

Independence After Matsqui?, Richard Haigh, Jim Smith

Articles & Book Chapters

The authors look at the Supreme Court's latest fully reasoned decision on independence in Canadian Pacific v. Matsqui, where native tribunals were found to be biased because of certain institutional characteristics. The authors argue that the court employs, on the one hand, a very simplified analysis of independence, but at the same time, sets standards for testing independence and bias in tribunals that are impossible to adequately quantify in practice. Neither the reasoning of Lamer C.J, nor Sopinka J. is adequate to address the full range of tribunal experience; in fact, the Supreme Court examines administrative tribunals as if they …