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Articles 1 - 30 of 42
Full-Text Articles in Law
Peer Review In Canada: Results From A Promising Experiment, Frederick Zemans, James Stribopoulos
Peer Review In Canada: Results From A Promising Experiment, Frederick Zemans, James Stribopoulos
Frederick H. Zemans
The end point in the access to justice debate often focuses on expanding the availability of legal services for the poor. This article argues that true access to justice requires greater focus on the quality of legal services provided. It tells the story of the introduction of peer review in Canada as a quality assurance tool for evaluating the legal work of a group of criminal lawyers. The article chronicles the various obstacles encountered in making even a very limited form of peer review a reality in Canada, where historically there has been skepticism about the peer review process in …
Tradition, Judges, And Civil Liberties In Canada, Douglas Hay
Tradition, Judges, And Civil Liberties In Canada, Douglas Hay
Douglas C. Hay
Comments on the role of the first chief justice of Upper Canada, William Osgoode (1754-1824), on shaping the law during a period of "counter-revolutionary and anti-democratic repression throughout the British Empire." Concludes that laws were often presented as emergency legislation that nevertheless effectively became permanent, challenging civil liberties in times of political or social conflict
Beals V. Saldanha: Striking The Comity Balance Anew, Janet Walker
Beals V. Saldanha: Striking The Comity Balance Anew, Janet Walker
Janet Walker
With the willingness to enforce foreign default judgments against defendants who did not consent to the jurisdiction of the foreign court and were not local persons there, Canadian courts may need to reconsider the narrowly framed defences so as to strike the comity balance anew.
Are National Class Actions Constitutional?: A Reply To Hogg And Mckee, Janet Walker
Are National Class Actions Constitutional?: A Reply To Hogg And Mckee, Janet Walker
Janet Walker
This article argues that there is no constitutional impediment to the certification of multijurisdictional class actions by provincial superior courts, and no constitutional requirement to confine plaintiff classes to those in which each claim has a real and substantial connection to the forum. Neither the text of the Constitution nor the constitutionally mandated rules of the conflict of laws restrict court jurisdiction in this way. Rather, the principles of order and fairness require Canadian courts to exercise jurisdiction over multi-jurisdictional class actions in a way that maximizes the objectives of class actions, and minimizes the incidence of overlapping classes and …
Addressing The Tension Between Directors' Duties And Shareholder Rights - A Tale Of Two Regimes, Sean Vanderpol, Edward J. Waitzer
Addressing The Tension Between Directors' Duties And Shareholder Rights - A Tale Of Two Regimes, Sean Vanderpol, Edward J. Waitzer
Edward J. Waitzer
There is a basic tension inherent in the regulation of corporations between the role to be played by boards and that to be played by shareholders. Boards have the statutory responsibility to manage the business and affairs of the corporation, and owe an express duty to act in the best interests of the corporation. Shareholders, however, are the ultimate ‘owners’ of the corporation, and have the ability to elect and remove directors. Canadian courts and securities regulators have long struggled with this tension in determining the roles to be played by each in transactions that pose the potential for conflicts …
Peoples, Bce, And The Good Corporate "Citizen", Edward J. Waitzer, Johnny Jaswal
Peoples, Bce, And The Good Corporate "Citizen", Edward J. Waitzer, Johnny Jaswal
Edward J. Waitzer
This article considers the use of various legal instruments to advance a more expansive but well-defined view of directors' duties and discretion--a view which focuses on the longer-term interests of the corporation. We begin with an attempt to clarify the nature of directors' statutory duties under Canadian corporate law. We then consider the recent decisions of the Supreme Court of Canada in Peoples Department Stores Inc. (Trustee of) v. Wise and BCE v. 1976 Debentureholders, in which the Court took a broad view of corporate purpose, but failed to provide clear logic or operational guidance as to consequential directorial responsibilities. …
Mediating Rights And Responsibilities In Control Transactions, Sean Vanderpol, Edward J. Waitzer
Mediating Rights And Responsibilities In Control Transactions, Sean Vanderpol, Edward J. Waitzer
Edward J. Waitzer
There is a growing debate as to the relative merits and consequences of a shift to a more shareholder-centric corporate governance framework. How much "direct democracy" makes sense in corporate decision making? If power is to be transferred to shareholders, should responsibilities be imposed (and, if so, how)? These issues have long been addressed by courts and regulators in the context of unsolicited control transactions. In its recent Air Products & Chemicals v. Airgas decision, the Delaware Chancery Court canvassed the evolution of its law on this point and concluded that implicit in the power (and responsibility) of the board …
Bisexuals Need Not Apply: A Comparative Appraisal Of Refugee Law And Policy In Canada, The United States, And Australia, Sean Rehaag
Sean Rehaag
This paper offers an analysis of refugee claims on grounds of bisexuality. After discussing the grounds on which sexual minorities may qualify for refugee status under international refugee law, the paper empirically assesses the success rates of bisexual refugee claimants in three major host states: Canada, the United States, and Australia. It concludes that bisexuals are significantly less successful than other sexual minority groups in obtaining refugee status in those countries. Through an examination of selected published decisions involving bisexual refugee claimants, the author identifies two main areas for concern that may partly account for the difficulties that bisexual refugee …
Restricted Access To Justice For Canadians Mistreated Abroad: Abdelrazik V. Canada (Re: Interim Costs), Sean Rehaag
Restricted Access To Justice For Canadians Mistreated Abroad: Abdelrazik V. Canada (Re: Interim Costs), Sean Rehaag
Sean Rehaag
Abousfian Abdelrazik is a Canadian citizen who, after having his name added to various anti-terrorism lists, and after being tortured by Sudanese officials, found himself unable to return home from Sudan largely because of Canadian government actions. Abdelrazik sought to challenge the constitutionality of these restrictions on his ability to return to Canada. However, he had no money and no means of support, as he was unable to leave a Canadian embassy in Sudan where he had sought refuge to avoid further torture by Sudanese officials. He therefore brought a motion for interim costs in Canada’s Federal Court. If granted, …
The Role Of Counsel In Canada's Refugee Determinations System: An Empirical Assessment, Sean Rehaag
The Role Of Counsel In Canada's Refugee Determinations System: An Empirical Assessment, Sean Rehaag
Sean Rehaag
This article examines the role of counsel in Canada's refugee determination process through an investigation of over 70,000 refugee decisions from 2005 to 2009. The article demonstrates that counsel is a key factor driving successful outcomes. The article also shows that legal aid programs are increasingly restrictive in funding legal representation for refugee claimants. The author argues that these restrictions put the lives of refugees at risk. The article also demonstrates that claimants represented by immigration consultants are less likely to succeed than claimants represented by lawyers. This, combined with evidence that the immigration consulting industry has not established adequate …
No Refuge: Hungarian Romani Refugee Claimants In Canada, Julianna Beaudoin, Jennifer Danch, Sean Rehaag
No Refuge: Hungarian Romani Refugee Claimants In Canada, Julianna Beaudoin, Jennifer Danch, Sean Rehaag
Sean Rehaag
From 2008 to 2012, large numbers of Hungarian Romani refugee claimants came to Canada. Their arrival was controversial. Some political actors suggested that their claims were unfounded and amounted to abuse of Canada’s refugee processes -- abuse which could only be prevented through wide-scale reforms to the refugee determination system. Many advocates for refugees, by contrast, argued that persecution against Roma was rampant in Hungary and noted that hundreds of Hungarians had been recognized as refugees in Canada. Some went further and contended that Romani refugee claimants fled persecution in Hungary only to be confronted with similar mistreatment in Canada. …
Poverty Law, Access To Justice, And Ethical Lawyering: Celebrating 40 Years Of Clinical Education At Osgoode Hall Law School, Shelley Gavigan, Sean Rehaag
Poverty Law, Access To Justice, And Ethical Lawyering: Celebrating 40 Years Of Clinical Education At Osgoode Hall Law School, Shelley Gavigan, Sean Rehaag
Sean Rehaag
Collects papers presented at the Symposium in 2011 celebrating forty years of clinical legal education at Osgoode Hall Law School.
Proportionate Liability Under The Cbca In The Context Of Recent Corporate Governance Reform: Canadian Auditors In The Wrong Place At The Wrong Time?, Poonam Puri, Stephanie Ben-Ishai
Proportionate Liability Under The Cbca In The Context Of Recent Corporate Governance Reform: Canadian Auditors In The Wrong Place At The Wrong Time?, Poonam Puri, Stephanie Ben-Ishai
Poonam Puri
In the recent Canada Business Corporations Act amendments implementing a proportionate liability scheme, auditors appear to be winners. This is consistent with the trend in the past several years as a result of which Canadian auditors have been successful in narrowing the scope of their liability both through legislation and through common law. Going forward, however, it is fair to say that auditors will be losers unless the accounting profession re-evaluates its role and responsibilities to its stakeholders. Given the accounting and corporate governance scandals North America has witnessed in the past few years, as well as the actual and …
Measuring The Effects Of Feminist Legal Research: Looking Critically At "Failure" And "Success", Lisa Philipps
Measuring The Effects Of Feminist Legal Research: Looking Critically At "Failure" And "Success", Lisa Philipps
Lisa Philipps
No abstract provided.
Choices And Commitments For Women: Challenging The Supreme Court Of Canada In The Context Of Social Assitance, Mary Jane Mossman
Choices And Commitments For Women: Challenging The Supreme Court Of Canada In The Context Of Social Assitance, Mary Jane Mossman
Mary Jane Mossman
No abstract provided.
Accessing Justice Amid Threats Of Contagion, Janet E. Mosher
Accessing Justice Amid Threats Of Contagion, Janet E. Mosher
Janet Mosher
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 …
Counting Outsiders: A Critical Exploration Of Outsider Course Enrollment In Canadian Legal Education, Natasha Bakht, Kim Brooks, Gillian Calder, Jennifer Koshan, Sonia Lawrence, Carissima Mathen, Debra Parkes
Counting Outsiders: A Critical Exploration Of Outsider Course Enrollment In Canadian Legal Education, Natasha Bakht, Kim Brooks, Gillian Calder, Jennifer Koshan, Sonia Lawrence, Carissima Mathen, Debra Parkes
Sonia Lawrence
In response to anecdotal concerns that student enrollment in "outsider" courses, and in particular feminist courses, is on the decline in Canadian law schools, the authors explore patterns of course enrollment at seven Canadian law schools. Articulating a definition of "outsider" that describes those who are members of groups historically lacking power in society, or traditionally outside the realms of fashioning, teaching, and adjudicating the law, the authors document the results of quantitative and qualitative surveys conducted at their respective schools to argue that outsider pedagogy remains a critical component of legal education. The article situates the numerical survey results …
Feminism, Consequences, Accountability, Sonia Lawrence
Feminism, Consequences, Accountability, Sonia Lawrence
Sonia Lawrence
No abstract provided.
In The Park: A Jurisprudential Primer, Allan C. Hutchinson
In The Park: A Jurisprudential Primer, Allan C. Hutchinson
Allan C. Hutchinson
No abstract provided.
Does The Observer Have An Effect?: An Analysis Of The Use Of The Dialogue Metaphor In Canada's Courts, Richard Haigh, Michael Sobkin
Does The Observer Have An Effect?: An Analysis Of The Use Of The Dialogue Metaphor In Canada's Courts, Richard Haigh, Michael Sobkin
Richard Haigh
In "Charter Dialogue Revisited-Or 'Much Ado About Metaphors,"' it is noted that the original idea behind the dialogue metaphor was simply to describe Canada's constitutional structure. Despite this, the metaphor has been criticized for having normative content and influencing courts and legislatures. In this commentary, the authors analyze all Supreme Court of Canada and lower court uses of the dialogue metaphor and conclude that, with some exceptions, the courts have employed the metaphor properly, i.e., descriptively. Since, however, the metaphor can be misapplied-used other than to describe or explain the relationship between the courts and legislatures in Canada-the authors recommend …
Fallout From Chaoulli: Is It Time To Find Cover?, Joan M. Gilmour
Fallout From Chaoulli: Is It Time To Find Cover?, Joan M. Gilmour
Joan M. Gilmour
This article examines the implications of the decision in Chaoulli v. Quebec (A.G.) for Canadian health policy. The author assesses whether governments are likely to strengthen medicare, given past performance and the exit option Chaoulli presents. The article analyzes the consequences of increasing private care and private insurance, concluding this will diminish the publicly funded system. It contrasts Chaoulli -with courts' dismissals of claims for Charter protection of minimal social and economic security, despite the profound effects of the latter on health status. It concludes by noting Chaoulli is one more example of the increasing prevalence of discourse normalizing privatization …
From Mothers' Allowance To Mothers Need Not Apply: Canadian Welfare Law As Liberal And Neo-Liberal Reforms, Shelley A. M. Gavigan, Dorothy E. Chunn
From Mothers' Allowance To Mothers Need Not Apply: Canadian Welfare Law As Liberal And Neo-Liberal Reforms, Shelley A. M. Gavigan, Dorothy E. Chunn
Shelley A. M. Gavigan
In this paper we examine changes in the form and content of Canadian welfare law through a historical, feminist lens using the exemplar of mother-headed families. Our analysis of how the state dealt with sole support mothers in several provinces throughout the twentieth century reveals important continuities, as well as discontinuities, between the past and the present that have shaped and reshaped the lives and experiences of poor women and their children. In doing so, it helps to illuminate how they have been rendered "undeserving" or "never deserving" with the neo-liberal (re)formation of the Keynesian state in Canada.
Better Never Than Late, But Why?: The Contradictory Relationship Between Law And Abortion, Shelley A. M. Gavigan
Better Never Than Late, But Why?: The Contradictory Relationship Between Law And Abortion, Shelley A. M. Gavigan
Shelley A. M. Gavigan
"I am honoured to have been invited to be a panelist in such distinguished company at this important event. I am particularly attracted to the invitation in the title of the Symposium to reflect upon the 1988 decision of the Supreme Court of Canada in R. v. Morgentaler. In reflecting upon the case, its significance and legacy, I want to talk about the importance of history, the contradictory nature of law and the enduring importance of ideology."
Poverty Law, Access To Justice, And Ethical Lawyering: Celebrating 40 Years Of Clinical Education At Osgoode Hall Law School, Shelley Gavigan, Sean Rehaag
Poverty Law, Access To Justice, And Ethical Lawyering: Celebrating 40 Years Of Clinical Education At Osgoode Hall Law School, Shelley Gavigan, Sean Rehaag
Shelley A. M. Gavigan
Collects papers presented at the Symposium in 2011 celebrating forty years of clinical legal education at Osgoode Hall Law School.
Privatizing Our Public Civil Justice System, Trevor C. W. Farrow
Privatizing Our Public Civil Justice System, Trevor C. W. Farrow
Trevor C. W. Farrow
No abstract provided.
Globalizing Approaches To Legal Education And Training: Canada To Japan, Trevor C. W. Farrow
Globalizing Approaches To Legal Education And Training: Canada To Japan, Trevor C. W. Farrow
Trevor C. W. Farrow
No abstract provided.
An Introduction To Representative Negotiation, Trevor C. W. Farrow
An Introduction To Representative Negotiation, Trevor C. W. Farrow
Trevor C. W. Farrow
No abstract provided.
Polygam's Inscrutable Criminal Mischief, Susan G. Drummond
Polygam's Inscrutable Criminal Mischief, Susan G. Drummond
Susan G. Drummond
The polygamy charges laid in the settlement of Bountiful, British Columbia, in January 2009, give rise to questions about the particular mischief of the polygamy offence in section 293 of Canada's Criminal Code. This article argues that, as a result of developments within related areas of law, polygamy's mischief under the current wording of the section is virtually inscrutable. When used, this section has principally served as a mechanism to discipline socially and politically marginalized groups. Developments in family law over the last forty years have generated a host of exceptions to the application of the polygamy section, including religious …
Politics Of Knowledge Dissemination: Corporate Reporting, Shareholder Voice, And Human Rights, Aaron A. Dhir
Politics Of Knowledge Dissemination: Corporate Reporting, Shareholder Voice, And Human Rights, Aaron A. Dhir
Aaron A. Dhir
This article considers the relationship between social disclosure and corporate accountability in Canada. It focuses on the potential benefits social disclosure can provide in terms of the overall human rights project. I explore this issue with reference to the broader theoretical frameworks of new governance and reflexive law. White I ground my analysis in these analytical approaches. I distance myself slightly from particular arguments in the literature to date: specifically, the argument that the disclosure process will result in self-correcting behaviour on the part of corporate decision makers. Rather, I argue that the value of social disclosure may lie more …
Weather, Leather, And The Obligation To Disclose: Kerr V. Danier Leather Inc., Anita Anand, Mary Condon
Weather, Leather, And The Obligation To Disclose: Kerr V. Danier Leather Inc., Anita Anand, Mary Condon
Mary G. Condon
Is an issuer legally obliged to update its prospectus if a material event occurs following the receipt for the prospectus but prior to the closing of the offering? This is the crucial issue that is addressed in Kerr v. Danier Leather Inc., a case that has been heard at the trial and appeal levels in Ontario and that will be heard in 2007 by the Supreme Court of Canada. In this commentary, we argue that the Court of Appeal decision in the case overlooked crucial aspects of contemporary securities law and policy in holding that there is no obligation to …