Law Commons^™

Migrant Construction And Domestic Workers In The Arab Gulf States: Modern - Day Slaves?, Omaya Chidiac

LLM Theses

This thesis examines the conditions of migrant construction and domestic workers in the Arab Gulf. I explore literatures on migrant labour, precariousness, and slavery. I also look at international and domestic legal instruments as well as data produced by several human rights organizations. This thesis shows how the mechanisms involved in the migration of migrant construction and domestic workers exacerbate vulnerability and precariousness. I examine the ways in which social locations including gender and race play a role in discrimination against migrant construction and domestic workers in the Arab Gulf, thus assisting conditions of slavery to arise. My aim is …

Workplace Harassment: A Cross-Jurisdictional Comparative Analysis Of Legislative Responses To This Workplace Phenomenon In Canada, Kayla Alice Carr

LLM Theses

This thesis investigates different statutory models Canadian legislatures have enacted to address workplace harassment. It adopts a qualitative, comparative case study approach, providing an in-depth comparative analysis of legislation from Québec, Saskatchewan, Ontario, Manitoba and British Columbia. Through this analysis, this thesis outlines the ways in which workplace harassment has been regulated in Canada, why that model was adopted by the jurisdiction and how that model measures against other models for legislating workplace harassment. Through an examination of existing literature relating to workplace harassment stemming from three theoretical paradigms and an analysis of a model legislative framework, this thesis creates …

Contesting Risk, Precaution And Legitimacy: A Case Study Of Lafarge, Savitri Vasanta Gordian

LLM Theses

This thesis examines debates about the precautionary principle in a tribunal and judicial review proceeding where environmental groups and individuals challenged a proposal to burn tires and other non-traditional fuel sources at a cement plant in Ontario, Canada. Chapter 1 explores scholarship on the precautionary principle and outlines the unique analytical contributions offered by administrative constitutionalism theory. Chapter 2 sets out the case study methodology employed by the author. Chapter 3 explains the legislative context. In chapters 4 through 9, each participant’s arguments are analyzed in relation to the two paradigms of administrative constitutionalism: Rational-Instrumentalist and Deliberative-Constitutive. This thesis establishes …

Responsibility To Protect (R2p), The Responsibility Of The International Community To Protect Syrian Citizens, Ghuna Bdiwi

LLM Theses

The responsibility to protect (R2P) doctrine allows the international community to intervene for humanitarian purposes in events of massive violations of human rights. However, the legality of humanitarian intervention has received considerable critical attention because of its direct conflict with two fundamental norms in international law: the prohibition of the use of force, and the principle of state sovereignty. In Syria, mass atrocity crimes are escalating on a daily basis. Until now, international efforts have failed to find a peaceful formula to stop the crisis. International law allows the Security Council to authorize humanitarian intervention under the power of Chapter …

Volume 88, Issue 7 (2014)

Obiter Dicta

No abstract provided.

Volume 88, Issue 6 (2014)

Obiter Dicta

No abstract provided.

Unanimous Shareholder Agreements, Nicolas William Juzda

PhD Dissertations

The unanimous shareholder agreement is a feature of most Canadian corporate statutes that allows the shareholders to, by creating an agreement meeting the necessary criteria, restrict the powers of the directors to manage the business and affairs of the corporation. One possible justification for this is the "nexus of contracts" theory that all corporations are notionally reducible to voluntary agreements. Three key areas of ambiguity surrounding unanimous shareholder agreements are examined in this dissertation, with specific reference to existing judgments. The requirements for their formation are reviewed, including the exact meaning and strictness of the unanimity criterion and the necessity …

Coercing Justice? Exploring The "Aspirations And Practice" Of Law As A Tool In Struggles Against Social Inequalities, Karen Schucher

PhD Dissertations

This dissertation examines the role of law as a tool in struggles against social inequalities, by tracing the history of Ontario’s human rights legislation and enforcement from the enactment of fair practices statutes in the 1950s through the restructuring of the enforcement regime in 2006. Ontario was the first Canadian province to pass anti-discrimination legislation and to establish a human rights commission enforcement process. This legislation and the commission enforcement process were the models for all other Canadian jurisdictions.

The dissertation approaches the role of law through the framework of tensions between the “aspirations” and the “practices” of law. On …

Volume 88, Issue 5 (2014)

Obiter Dicta

No abstract provided.

Safe Havens Or Dangerous Waters? A Phenomenological Study Of Abused Women's Experiences In The Family Courts Of Ontario, Lois Shereen Winstock

PhD Dissertations

This qualitative, interdisciplinary research study explores the experiences of women abused by their intimate partners who appear as litigants in family court proceedings in Ontario, and the responses of judges presiding over those proceedings.

Domestic violence and abuse affects families from all social, economic and cultural groups. Women have been overwhelmingly identified as the victims of domestic violence and abuse. Children exposed to domestic violence and abuse, either directly or indirectly, are also negatively impacted. The term woman abuse has been employed to denote the gendered nature of the phenomena.

Studies of abused womens interactions with the legal system across …

Volume 88, Issue 4 (2014)

Obiter Dicta

No abstract provided.

Labour Law And Triangular Employment Growth, Timothy John Bartkiw

LLM Theses

This thesis is concerned with understanding the relationship between labour law and triangular employment growth, and particularly in "staffing services" contexts. A review of alternative explanations for growth in triangular employment within three theoretical paradigm (neoclassical, institutionalist, and critical) illustrates the theoretical space for conceiving of a relationship between the particularities of labour law and triangular employment growth. To this end, the thesis develops the concept of a regulatory differential, or ways in which a legal regime may produce differential regulatory effects as between direct and triangular forms of employment. A typology of regulatory differentials is outlined. Further, a discussion …

Reconnecting The Financial Sector To The Real Economy: A Plan For Action, Edward J. Waitzer, Douglas Sarro

Articles & Book Chapters

Informational asymmetries, misaligned incentives, and artificially elongated chains of intermediation have created a disconnect between the financial sector and the real economy that is detrimental to the public interest. Courts and regulators are increasingly intervening to break the cycle. Fiduciary law offers a conceptual framework both for understanding and responding to this trend. This article argues that the financial sector, rather than waiting for this trend to develop and reacting to new rules in a piecemeal way, should be proactive and shape the way in which the trend develops.

Recovering The Promise Of Public Truth: Juridification And The Loss Of Purpose In Public Inquiries, Jessica Mckeachie

LLM Theses

My intention in this work is to investigate the apparent disconnect between the intended social purposes of inquiries and the impact pressures of juridification have had on them, and consider what steps inquiries may take to resist these pressures. Public inquiries, formerly relied on as an alternative to criminal and civil proceedings and as a means to engage the public on issues of policy, now seem to exhibit more intense procedures akin to those found in the alternative processes they were designed to resist. Under increasing juridification pressures, what function should public inquiries fulfil? In short, my aim is to …

Proportionality, Discretion, And The Roles Of Judges And Prosecutors At Sentencing, Palma Paciocco

Articles & Book Chapters

The Supreme Court of Canada recently held that prosecutors are not constitutionally obligated to consider the principle of proportionality when exercising their discretion in a manner that narrows the range of available sentences: since only judges are responsible for sentencing, they alone are constitutionally required to ensure proportionality. When mandatory minimum sentences apply, however, judges have limited sentencing discretion and may be unable to achieve proportionality. If the Court takes the principle of proportionality seriously, and if it insists that only judges are constitutionally bound to enforce that principle, it must therefore create new tools whereby judges can avoid imposing …

Volume 88, Issue 3 (2014)

Obiter Dicta

No abstract provided.

The Application Of Gladue To Bail: Problems, Challenges, And Potential, Jillian Anne Rogin

LLM Theses

This paper argues that the principles articulated by the Supreme Court of Canada in R. v. Gladue and re-iterated in R. v. Ipeelee are being interpreted and implemented at the bail phase in a manner that exacerbates, rather than ameliorates the systemic failures of the criminal justice system in its dealings with Aboriginal people. Aboriginal people are grossly over-represented in Canadian prisons including those being detained in remand custody. It is now settled that the principles expressed in Gladue are applicable outside of the context of sentencing and in many jurisdictions have been found to be applicable to judicial interim …

Volume 88, Issue 2 (2014)

Obiter Dicta

No abstract provided.

Volume 88, Issue 1 (2014)

Obiter Dicta

No abstract provided.

Action Committee On Access To Justice In Civil And Family Matters: Colloquium Report, Action Committee On Access To Justice In Civil And Family Matters

Canadian Forum on Civil Justice

This report on the Colloquium provides an overview of the Colloquium discussions and a summary of the key messages of those who participated in the two-day event. It attempts to capture the comments, suggestions and major points of dialogue. In addition to providing an overview and summary of the major discussion threads, it also highlights examples provided by participants of initiatives, programs and innovations that are currently working in various jurisdictions.

Creating A Cultural Analysis Tool For The Implementation Of Ontario's Civil Mental Health Laws, Roby Dhand

PhD Dissertations

The purpose of the study was to develop a Cultural Analysis Tool (CAT). The CAT consists of specific thematic questions that can serve as a cultural and equity analysis instrument for practitioners to use in the implementation of Ontario’s civil mental health laws. The rationale behind creating the CAT is based on research suggesting that ethno-racial people with mental health disabilities experience inequities and differential outcomes while interacting with Ontario’s civil mental health laws. Given the increasing multi-racial population in Ontario, there is a need to develop mechanisms to address these intersecting issues. Other countries that have created evaluative tools …

Rights And Responsibilities: What Are The Prospects For The Responsibility To Protect In The International/Transnational Arena?, Carolyn Helen Filteau

PhD Dissertations

The dissertation involves a study of the emerging international norm of ‘The Responsibility to Protect’ which states that citizens must be protected in cases of human atrocities, war crimes, ethnic cleansing and genocide where states have failed or are unable to do so. According to the work of the International Commission on the Responsibility to Protect (ICISS), this response can and should span a continuum involving prevention, a response to the violence, when and if necessary, and ultimately rebuilding shattered societies. The most controversial aspect, however, is that of forceful intervention and much of the thesis focuses on this aspect. …

Volume 87, Issue 14 (2014)

Obiter Dicta

No abstract provided.

What Is Access To Justice?, Trevor C. W. Farrow

Osgoode Hall Law Journal

Access to justice is the most pressing justice issue today. It has become the major focus of essentially all stakeholders in the legal community—governments, regulators, bar associations, researchers, and educators. It now needs to become an increasing topic of attention for those who use the system: the public. With all of this attention, what does the phrase “access to justice” really mean, particularly from the perspective of the public? In addition to reviewing the access to justice literature and policy initiatives, this article develops a public centered understanding of access to justice. It does so primarily by reporting on a …

The Justice In Unjust Enrichment, Dan Priel

Osgoode Hall Law Journal

The question of what justice has to do with the law of unjust enrichment (if it has anything to do with it at all) has in recent years come to occupy scholars who have sought to explain the theoretical foundations of this area of law and its relationship with other branches of private law. A popular answer has been that the law of unjust enrichment, like the rest of private law, instantiates the politically neutral norms of corrective justice. In this article, I argue that this is not the case in two distinct senses. First, even on its own, corrective …

Introduction, Harry Arthurs

Osgoode Hall Law Journal

This special edition of the osgoode hall law journal presents a collection of articles originally delivered at a symposium in 2013 celebrating John McCamus’s 40 years as a professor at Osgoode Hall Law School of York University. The conference might equally have celebrated other milestones in John’s remarkable professional life: forty years—give or take—since his first venture in law reform as a member of a research team; twenty years since his appointment as a member (subsequently Chair) of the Ontario Law Reform Commission; twenty years or so as Chair of the Canadian Civil Liberties Association; twenty years as well since …

Consideration Which Happens To Fail, Andrew Kull

Osgoode Hall Law Journal

Recent English commentary employs the timeworn expression “failure of consideration” in an unprecedented way. It can now designate an expansive residual category of grounds for restitution: at its fullest, “the failure to sustain itself of the state of affairs contemplated as a basis” for a transaction by which one party is enriched at the expense of another. Because the result is plainly to incorporate a civilian-style “absence of basis” test within commonlaw unjust enrichment, the new “failure of consideration” carries an incidental implication for Canadian restitution law: if Garland v Consumers’ Gas really announced a shift from commonlaw “unjust factors” …

Law Reform For Dummies (3rd Edition), Roderick A. Macdonald

Osgoode Hall Law Journal

Legal pluralist law reform engages citizens in dialogue through which they gain richer insight into their normative lives and learn to manage everyday interactions with each other. Noting that first- and second-generation law reform commissions have been critiqued for their narrow vision and goal of modifying individual legal rules, this article shifts the focus to the general public as a key player in the enterprise. This is how law reform responds to public concerns and engages the public’s assumptions about the reform process. The true ambition of law reform is to find opportunities for Canadians to examine their assumptions about …

Mistake In Assumptions, Stephen Waddams

Osgoode Hall Law Journal

Mistake raises several important and difficult questions for contract law. The question addressed here is, when is it an excuse from contractual obligation that a contract has been made under the influence of a mistake of fact? Posed in this form, the question invites attention to aspects of contract law not usually considered in relation to each other, particularly misrepresentation, frustration, and more generally, unjust enrichment, all areas in which Professor McCamus has written extensively. This article brings these areas together with the object of throwing useful light on each of them, both from the point of view of understanding …

Disclaimers Of Contractual Liability And Voluntary Obligations, Michael G. Pratt

Osgoode Hall Law Journal

Contractual obligations are traditionally regarded as voluntary. A voluntary obligation is one that can be acquired only if one intends to acquire it. This traditional understanding finds doctrinal expression in the requirement that contracting parties intend to create legal relations. It has, however, been doubted that the Anglo-Canadian law of contract insists on this requirement. Skeptics argue that cases ostensibly decided on the basis of such a requirement are better explained otherwise. In this paper I invoke the legal force of contractual disclaimers to show that contractual obligations are indeed voluntary. When parties to an agreement purport to exclude it …