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Articles 1 - 17 of 17
Full-Text Articles in Law
An Evaluation Model For Non-Governmental Organizations Engaged In Advocacy, Nathalie Des Rosiers
An Evaluation Model For Non-Governmental Organizations Engaged In Advocacy, Nathalie Des Rosiers
Osgoode Hall Law Journal
The article proposes a model to evaluate the effectiveness of NGOs that engage in advocacy for compliance with international human rights and civil liberties standards or constitutional rules. The model draws on the analysis of social movement effectiveness, ombudsmen’s roles and the literature on the evaluation of human rights NGOs at the international level. It establishes ways to measure the legitimacy and effectiveness of advocacy NGOs. In particular, it suggests that transparency and independence must be constantly demonstrated, that factual accuracy must always be sought and that legal compliance must be shown to have moral and public interest resonance. The …
Accessing Justice Amid Threats Of Contagion, Janet E. Mosher
Accessing Justice Amid Threats Of Contagion, Janet E. Mosher
Osgoode Hall Law Journal
Plans to prepare for a global pandemic have proliferated in recent years, and “legal preparedness” has emerged as a critical component of such plans. Commonly, the threat of disease is analogized to terrorism and recast as an issue of national security. In this framing, laws authorizing surveillance, containment, and forced treatment are understood as necessary. Law’s promise of protection against abuses in the exercise of such powers through procedural rights of review offers meagre comfort for critics concerned that individual liberties will readily yield to national security and public health in the context of an actual pandemic. An alternative framing …
What Is Access To Justice?, Trevor C. W. Farrow
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 …
Disclaimers Of Contractual Liability And Voluntary Obligations, Michael G. Pratt
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 …
Mistake In Assumptions, Stephen Waddams
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 …
The Justice In Unjust Enrichment, Dan Priel
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
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
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
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 …
Investigating Integrated Domestic Violence Courts: Lessons From New York, Jennifer Koshan
Investigating Integrated Domestic Violence Courts: Lessons From New York, Jennifer Koshan
Osgoode Hall Law Journal
Extensive law and policy reforms in the area of domestic violence have occurred in the last several decades in the United States and Canada, the latest being the development of specialized domestic violence (DV) courts. DV courts typically operate in the criminal realm, particularly in Canada. A recent innovation that is relatively unique in the United States is integrated domestic violence (IDV) courts, where criminal, civil, and family matters are heard together in a one judge/one family model. This article examines the literature on DV and IDV courts in Canada and the United States, and situates these reforms in the …
The Ethical Obligations Of Defence Counsel In Sexual Assault Cases, Elaine Craig
The Ethical Obligations Of Defence Counsel In Sexual Assault Cases, Elaine Craig
Osgoode Hall Law Journal
The treatment of sexual assault complainants by defence counsel has been the site of significant debate for legal ethicists. Even those with the strongest commitment to the ethics of zealous advocacy struggle with how to approach the cross-examination of sexual assault complainants. One of the most contentious issues in this debate pertains to the use of bias, stereotype and discriminatory tactics to advance one’s client’s position. This paper focuses on the professional responsibilities defence lawyers bear in sexual assault cases. Its central claim is as follows: Defence counsel are ethically obligated to restrict their carriage of a sexual assault case …
Canadian Bijuralism At A Crossroad? The Impact Of Section 8.1 Of The Interpretation Act On Judicial Interpretation Of Federal Legislation, Aline Grenon
Osgoode Hall Law Journal
Section 8.1 of the Interpretation Act affirms the equal authority of the common law and civil law in the field of property and civil rights. The section states, subject to two exceptions, that federal enactments based on rules and concepts that are part of the law of property and civil rights are to be interpreted in accordance with these rules and concepts. Prior to the enactment of section 8.1 in 2001, courts had a tendency to opt for a uniform application of federal legislation based on common law concepts, with often negative results for Quebec civil law. Since then, the …
Failure To Report: The Manifestly Unconstitutional Nature Of The Human Smugglers Act, Jennifer Bond
Failure To Report: The Manifestly Unconstitutional Nature Of The Human Smugglers Act, Jennifer Bond
Osgoode Hall Law Journal
This paper uses the Human Smugglers Act as a case study of what can happen when a Canadian government tables legislation that is highly controversial not only for reasons of ideology or policy, but also because it almost certainly violates the Charter. The conclusion is twofold: first, that a requirement originally meant to increase government accountability in the face of Canada’s human rights instruments is failing; and second, that this same requirement is now providing the government political cover to deflect legitimate constitutional critique while simultaneously avoiding substantive engagement. The result is an impoverished constitutional dialogue and a misled Canadian …
Equally Recognized? The Indigenous Peoples Of Newfoundland And Labrador, Sébastien Grammond
Equally Recognized? The Indigenous Peoples Of Newfoundland And Labrador, Sébastien Grammond
Osgoode Hall Law Journal
In Canada, certain Indigenous groups are struggling to obtain official recognition of their status and rights. This is particularly so in Newfoundland and Labrador, where the authorities took the stance, when the province joined Canada in 1949, that no one would be legally considered Indigenous. This paper analyzes the claims of the Indigenous groups of that province, which have resulted, over the last thirty years, in various forms of official recognition. In particular, this article highlights how the concept of equality was used by these Indigenous groups to buttress their claims. Equality, in this context, was mainly conceived of as …
From Rawls To Habermas: Towards A Theory Of Grounded Impartiality In Canadian Administrative Law, Laverne Jacobs
From Rawls To Habermas: Towards A Theory Of Grounded Impartiality In Canadian Administrative Law, Laverne Jacobs
Osgoode Hall Law Journal
At the same time that Canadian public law jurisprudence has grappled with some key cases on bias, a vibrant debate has also raged over the meaning and scope of the notion of impartiality within political and moral philosophy. Spurred by Rawls’ view of liberalism, and culminating in the theory of deliberative democracy, this debate evolved over a span of more than four decades. Yet this philosophical literature is rarely, if at all, referred to in the public law jurisprudence dealing with impartiality. This article asks whether the debates surrounding impartiality in political and moral philosophy and those in Canadian public …
Who Writes? Gender And Judgment Assignment On The Supreme Court Of Canada, Peter Mccormick
Who Writes? Gender And Judgment Assignment On The Supreme Court Of Canada, Peter Mccormick
Osgoode Hall Law Journal
This article poses the question: Now that women are receiving an increasing share of the seats on the Supreme Court of Canada (the Court), can we conclude with confidence that they have been admitted to full participation, with a mix of judgments—including the more significant decisions—that is fully comparable to their male colleagues? The author looks at the assignment of reasons for judgment on the Court over the last three chief justiceships, with specific reference to the relative rate of assignments to male and female judges. He finds that the male/female gap is more robust than ever, although he also …
When Do Human Rights Treaties Help Asylum Seekers? A Study Of Theory And Practice In Canadian Jurisprudence Since 1990, Stephen Meili
When Do Human Rights Treaties Help Asylum Seekers? A Study Of Theory And Practice In Canadian Jurisprudence Since 1990, Stephen Meili
Osgoode Hall Law Journal
This article supports a new theoretical approach to the utilization of human rights treaties in refugee status adjudications in domestic courts. The existing literature on treaty effectiveness is divided between several optimistic and pessimistic perspectives, none of which adequately predict the circumstances under which domestic courts in Canada reference treaties in ways that help refugees obtain relief. This new theoretical approach adds to the literature on treaty effectiveness in the litigation context by suggesting that the extent to which Canadian domestic courts reference treaties in ways that help refugees depends on several factors, including the manner in which those treaties …