Law Commons^™

Indigenous Peoples In Canada: A Bibliography Of Legal And Other Works To 1994, Kristen Clark, Leslie Haddock, Kent Mcneil

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No abstract provided.

Hallmarks Of Abusive Transactions And The Role Of Economic Substance: Comments On Modernizing And Strengthening The General Anti-Avoidance Rule Consultation Paper, Jinyan Li

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I support the initiative to revisit the GAAR for purposes of making it more effective. I find the Modernizing and Strengthening the General Anti-Avoidance Rule Consultation Paper (“GAAR Consultation Paper”) helpful in providing some background and context for diagnosing the issues and setting out some proposed solutions. I appreciate the opportunity to offer some comments on two specific questions raised in the Consultation Paper:

(a) How to clarify the object, spirit and purpose of provisions of the Act?

(b) What is the role of economic substance in strengthening the GAAR?

Procedural Injustice: Indigenous Claims, Limitation Periods, And Laches, Kent Mcneil, Thomas Enns

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When Indigenous peoples go to court to seek justice for the historical wrongs they have endured, the Crown often tries to prevent their claims from even being heard by pleading statutes of limitations and laches. The application of these barriers raises serious constitution issues that have been taken account of by the Supreme Court only in the context of declarations of constitutional invalidity. Arguments based on the constitutional division of powers and section 35(1) of the Constitution Act, 1982 have not been addressed by the Court. As a result, limitations statutes that vary from province to province have been applied …

Essential Jobs, Remote Work And Digital Surveillance: Addressing The Covid-19 Pandemic Panopticon, Antonio Aloisi, Valerio De Stefano

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An unprecedented COVID-19-induced explosion in digital surveillance has reconfigured power relationships in professional settings. This article critically concentrates on the interplay between technology-enabled intrusive monitoring and the augmentation of 1

managerial prerogatives in physical and digital workplaces. It identifies excessive supervision as the common denominator of “essential” and “remotable” activities, besides discussing the various drawbacks faced by the two categories of workers during (and after) the pandemic. It also assesses the adequacy of the current European Union legal framework in addressing the expansion of data-driven management. Social dialogue, workers’ empowerment and digital literacy are identified as effective solutions to promote …

The Negotiable Transport Document, Benjamin Geva

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With the emergence of a long-distance land-based trade, along with the expansion of a non-sea based multimodal trade, a demand arose for a negotiable transport document which is not limited to marine transport. A series of international conventions responded to such demand by providing for new types of negotiable transport documents. However, these conventions failed to accord to such documents the features of a document of title and to clarify their negotiable character. The task of overcoming this obstacle is hindered by the fragmentary nature of the law governing the marine bill of lading, which is the classic transport document …

The Legal Relations Of ‘Private’ Forests: Making And Unmaking Private Forest Lands On Vancouver Island, Estair Van Wagner

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While the vast majority of forestlands in Canada are considered ‘Crown land’, there are key areas of private forestland. On private land the incidents of fee simple ownership mean the owner emerges as land use decision maker – the “agenda setter” for the land. Yet a richer set of legal relations exists in these forests.

Indigenous legal orders derived from an enduring relationship with the land and place also govern forestlands. Using the case of the Esquimalt and Nanaimo Railway lands in British Columbia, this article explores the intersection between historical and contemporary human-forest relations upheld by Anglo-Canadian law and …

The Myth Of Legal Realist Skepticism, Dan Priel

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Here are some things everyone knows about the legal realists: They didn’t believe in legal rules, they thought—and demonstrated—that law is inherently indeterminate, and they taught us that it is the personality of the judge that decided cases. To the extent that they studied legal doctrine, it was in order to demonstrate its incoherence. This is why they “vociferously objected” to the Restatements. It is the victory of their ideas that killed the doctrinal legal treatise as a respectable form of scholarship in the United States. In addition to this jurisprudential radicalism, the legal realists were also politically radical. Their …

Religion, Public Law, And The Refuge Of Formalism, Howard Kislowicz, Benjamin Berger

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In this article we suggest that the encounter with religious legal traditions has surfaced a distinct vein of formalism in Canadian public law, discernable across the Court’s law and religion jurisprudence. This is so despite the centrality of substantive analysis in the account Canadian public law gives of itself. But there are distinct challenges and a particular anxiety that surrounds the law-religion encounter; we argue that the fraught sovereignty and pluralism problems that this encounter presents has led Canadian public law to rediscover its formalist habits and the comfort that they bring.

The Supreme Court of Canada’s decisions in Wall …

Bargaining Sectoral Standards: Towards Canadian Fair Pay Agreement Legislation, Sara Slinn, Mark Rowlinson

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This paper considers the recently introduced New Zealand Fair Pay Agreement (FPA) sectoral bargaining framework and offers a preliminary series of ideas and proposals setting out how an FPA model for bargaining sectoral standards could work in Canada. It is intended as the beginning of a more detailed discussion on the development of an FPA regime culminating in model legislation that could be adapted to different Canadian jurisdictions. Guided by principles of accountability, integration, and inclusivity, this proposal is intended to apply to all workers in an employment relationship – including dependent contractors and gig and platform workers. The proposed …

The Construction Of Minorities: Self-Determination And The Legal Politics Of Religious Difference In Late Northern Nigeria, Circa 1949-1960, Rabiat Akande

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No abstract provided.

Emotions And Precedent, Emily Kidd White

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The philosophy of emotion raises complications for theories of precedent. This chapter argues that it is productive to think of the effect of some precedents as facets of legal reasoning that are related to the use and understanding of legal concepts as thick concepts. In legal reasoning, precedents are routinely invoked to explicate, and/or clarify the content of legal concepts that are at issue in a case. This chapter develops an argument by Bernard Williams, i.e., that one must avoid the risk of over-generalizing the relationship of emotions to thick concepts, by placing it in the context of legal reasoning. …

The Text And The Ballot Box: S.3, S.33 And The Right To Cast An Informed Vote, Jamie Cameron

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Section 33, which empowers legislatures to override most of the Charter’s fundamental rights and guarantees, has resurfaced in recent years and more ominously, as a rights-negating mechanism. The relationship between s.33 and the Charter’s non-derogable rights is one issue that has arisen under s.33 legislation enacted by Quebec and Ontario. In Ontario, Bill 307’s use of the override to reinstate unconstitutional restrictions on third party political advertising also engages the democratic rights of voters protected by s.3 of the Charter. In marking the first time override legislation forms the backdrop to s.3’s interpretation, Working Families v. Ontario …

The Global Tax Agreement: Some Truths And Legal Realities, Jinyan Li

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With much pomp and ceremony, it was announced that member jurisdictions of the G20/OECD BEPS Inclusive Framework “agreed to a two-pillar solution to address the tax challenges from the digitalization of the economy” (the “Two-Pillar Agreement”) This agreement has been hailed by some as “historic”, “momentous”, “revolutionary”, but criticized by others as “harmful to developing countries”, cartelistic power grabbing by a few powerful countries, or neocolonialism. So, is the agreement a cause for celebration or the opposite? What is the chance of the Agreement become real law? In this article, I try to first explain what the two-pillar agreement is …

The Ai-Copyright Challenge: Tech-Neutrality, Authorship, And The Public Interest, Carys Craig

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Many of copyright’s core concepts—from authorship and ownership to infringement and fair use—are being challenged by the rapid rise of generative AI. Whether in service of creativity or capital, however, copyright law is perfectly capable of absorbing this latest innovation. More interesting than the doctrinal debates that AI provokes, then, is the opportunity it presents to revisit the purposes of the copyright system in the age of AI. After introducing the AI-copyright challenge in Part 1, Part 2 considers the guiding principles and normative objectives that underlie—and so ought to inform—copyright law and its response to AI technologies. It proposes …

Notes Toward A Supreme (Legal) Fiction, Emily Kidd White

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Maksymilian Del Mar’s new book, Artefacts of Legal Inquiry: The Value of Imagination in Adjudication offers a finely drawn map of various ways of reasoning in and through law. The book is about the ways that thoughts, values, commitments and ways of seeing, move, take hold, settle, startle and – at times – release grip, reorient, and/or transmute. It is a book that is teeming with references. There are threads to pull at everywhere.