Law Commons^™

‘We Are The Monitors Now’: Experiential Knowledge, Transcorporeality And Environmental Justice, Dayna Scott

Articles & Book Chapters

Residents of pollution hotspots often take on projects in ‘citizen science’, or popularepidemiology, in an effort to marshal the data that can prove their experience of the pollution to the relevant authorities. Sometimes these tactics, such as pollution logs or bucket brigades, take advantage of residents’ spatially ordered and finely honed experiential and sensory knowledge of the places they inhabit. But putting that knowledge into conversation with law requires them to mobilize a new, ‘foreign’ set of tools, primarily oriented to the observation, measurement and sampling of pollution according to conventional scientific standards. Here, I employ qualitative empirical methods in …

Indigenous Women, Water Justice And Zaagidowin (Love), Deborah Mcgregor

Articles & Book Chapters

I would like to open by saying Chi-miigwech (a big thank-you) to those Elders/Grandmothers who have shared their stories and teachings with me over the years. Some have since passed on and I hope that through my words, their love and generosity will continue the process of healing the people and waters upon which they so integrally depend.

The paper which follows contains many references to notions of love, mutual respect, and responsibility towards the natural world, and water in particular. These ideas may seem a little tenuous for a serious paper on a critical environmental justice issue, but concepts …

Selected Annotated Bibliography Of National And Regional Legal Needs Survey, Nicole Aylwin, Mandi Gray

Canadian Forum on Civil Justice

Since the mid-1990’s there have been at least twenty-six large-scale national surveys on the public’s experience of justiciable events conducted within sixteen separate jurisdictions. Twenty-four of these surveys have utilized the methodological framework of Hazel Genn’s Paths to Justice (1999). Genn’s approach seeks to examine legal needs beyond what may be identified by respondents as a legal need. This approach emerged due to critiques of previous legal needs research that only sought to identify persons who were likely to use legal services rather than the types of problems that are taken to lawyers. Genn’s approach does not rely upon respondent’s …

Just In Time Research: Rural & Remote Access To Justice: Intake Platform Research, Canadian Forum On Civil Justice

Canadian Forum on Civil Justice

This memo provides a wide scan of tools and platforms that either are, or ostensibly could be, used to conduct intake assessment and document storage in a clinic context. Our findings include comprehensive intake platforms that are designed exclusively for intake purposes, as well as a suite of tools that have broader application but lend themselves to application in an intake environment. We looked at tools marketed to professionals, institutions, businesses, and consumers.

Rural And Remote Access To Justice, A Literature Review, Nicole Aylwin, Lisa Moore

Canadian Forum on Civil Justice

All Canadians, regardless of financial or other barriers, should have reasonable access to justice. Yet the reality remains that for the nearly 20% of Canadians living in rural and remote communities, accessing justice remains difficult, largely due to the unique challenges to service provision that exist in rural and remote communities. These challenges are rooted in the geographical, demographic, and social and cultural characteristics that define rurality and remoteness, and in the varied combinations of these elements that determine the legal and social service needs of individual communities. Moreover, rural and remote areas have various infrastructure, resource, communication and social …

Lawmatters At Your Local Public Library: A History Of Bc’S Program For Public Legal Information And Education In Public Libraries, Janet Freeman, Nancy Hannum

Canadian Forum on Civil Justice

Public libraries have always been an important partner in the education of their communities in all aspects of knowledge, including the legal system. In the 1970’s the Law Reform Commission of Canada conducted a survey to research how and where the public found legal information. The resulting Law Reform Commission report published in 1975 included recommendations that more legal information materials be available for public libraries, as well as more training for public librarians to answer legal questions using both print materials and referral resources.

Indigenous Lawyers In Canada: Identity, Professionalization, Law, Sonia Lawrence, Signa A. Daum Shanks

Articles & Book Chapters

For Indigenous communities and individuals in Canada, "Canadian" law has been a mechanism of assimilation, colonial governance and dispossession, a basis for the assertion of rights, and a method of resistance. How do Indigenous lawyers in Canada make sense of these contradictory threads and their roles and responsibilities? This paper urges attention to the lives and experiences of Indigenous lawyers, noting that the number of self-identified Indigenous lawyers has been rapidly growing since the 1990s. At the same time, Indigenous scholars are focusing on the work of revitalizing Indigenous law and legal orders. Under these conditions, Indigenous lawyers occupy a …

Civil Non-Family Cases Filed In The Supreme Court Of Bc: Research Results And Lessons Learned, Focus Consultants

Canadian Forum on Civil Justice

This report presents the findings and lessons learned from the implementation of a research project that was intended to study the trajectory, characteristics and outcomes of BC Supreme Court civil non-family cases that appeared to lack resolution through court processes. The study also planned to assess the level of satisfaction of claimants in these cases and the ancillary costs or other impacts that are experienced by claimants for whom access to timely civil legal processes has been a problem.

Just In Time Research: Rural & Remote Access To Justice: Application Research, Canadian Forum On Civil Justice

Canadian Forum on Civil Justice

This memo provides a survey of smartphone applications that might serve as useful reference points for the development of a rural access to justice app. It is hoped that such an application could help “address the rural conundrum” by using natural language, issue identification, resource listing and mapping, as well as data tracking and sharing to improve access to justice in Canada’s remote communities. By sorting through the “shopping list” of suggested features and functionality provided by the Boldness Project, and by searching for similar use cases, a number of applications came forward as potential sources of inspiration.

Sex, Gender And The Chemicals Management Plan, Dayna Nadine Scott, Sarah Lewis

Articles & Book Chapters

Chemical substances are found everywhere in our environment. As Chapter 1 makes clear, whether it be at home, outdoors, or in the workplace, we are continuously coming into contact with various chemicals through our air, water, food, cosmetics, clothes, personal care products, and everyday household items (Cooper, Vanderlinden, and Ursitti 2011; Program on Reproductive Health and the Environment 2008). As our detection methods improve, we are increasingly forced to confront the evidence of these exposures: biomonitoring studies now show that nearly everyone has measurable amounts of almost all known toxic chemicals stored somewhere in their bodies (CDC 2013; Environmental Defence …

Labour Law And Transnational Law: The Fate Of Legal Fields / The Trajectory Of Legal Scholarship, Harry Arthurs

Conference Papers

In this lecture, I’m going to explain how and why I came to write my article, The Law of Economic Subordination and Resistance. I hope that by doing so, I will be able to shed some light not only on my own field of labour law, but on the larger problem of how legal fields or domains of legal knowledge, come into existence, change or become obsolete, and in the end are either transformed or superseded altogether. I will be talking about labour law, but I hope you will be thinking about transnational law. I’m going to try to persuade …

Creating New Pathways To Justice Using Simple Artificial Intelligence And Online Dispute Resolution, Darin Thompson

Osgoode Legal Studies Research Paper Series

Access to justice in can be improved significantly through implementation of simple artificial intelligence (AI) based expert systems deployed within a broader online dispute resolution (ODR) framework. Simple expert systems can bridge the ‘implementation gap’ that continues to impede the adoption of AI in the justice domain. This gap can be narrowed further through the design of multi-disciplinary expert systems that address user needs through simple, non-legalistic user interfaces. This article provides a non-technical conceptual description of an expert system designed to enhance access to justice for non-experts. The system’s knowledge base would be populated with expert knowledge from the …

Extending The Reach Of Legal Aid: Report On The Pilot Phase Of The Legal Health Check-Up Project, Ab Currie

Canadian Forum on Civil Justice

The intermediary partnerships that are the foundation of the Legal Health Check-Up (LHC) project are a solid platform for developing a legal service delivery model targeted at people who are the most disadvantaged that includes the pillars of outreach, integrated and holistic service.

Extending The Reach Of Legal Aid: Report On The Pilot Phase Of The Legal Health Check-Up Project, Ab Currie

Canadian Forum on Civil Justice

Research makes clear that legal service delivery, especially to the poor, fails dramatically if clients must find their own way to legal aid offices. The Legal Health Check-Up project addresses this by extending legal aid in partnership with trusted intermediary groups that are part of the everyday world of disadvantaged groups. These intermediaries make an active offer of legal service.It is hoped that the intermediaries will go beyond the gateway roles of problem-spotting and legal referral to – with the legal aid clinic – provide holistic and integrated legal services that otherwise would not be available.

Addressing Access To Justice Through New Legal Service Providers: Opportunities And Challenges, Alice Woolley, Trevor C. W. Farrow

Articles & Book Chapters

Most informed observers of the Canadian and American legal systems accept the existence of a significant crisis in access to justice. One possible solution is to permit paralegals, notaries or other licensed individuals with training more limited than that enjoyed by a licensed attorney to practice in certain areas of law. This paper supports these developments, arguing for a regulated and incremental introduction of new legal service providers into the legal services market. It considers the appropriate training and scope of practice for new legal service providers, and some of the associated opportunities and challenges.

Action Committee Meeting Of Provincial And Territorial Access To Justice Groups, Action Committee On Access To Justice In Civil And Family Matters

Canadian Forum on Civil Justice

On March 13, 2015 the Action Committee on Access to Justice in Civil and Family Matters (the Action Committee) convened a meeting for existing provincial and territorial access to justice groups (P/T A2J groups), many of which were formed in response to recommendation 5.1 of the Action Committee’s Roadmap Report. 1 The purpose of the meeting was to reflect on the progress made by these groups over the past year, discuss the access to justice initiatives underway in different jurisdictions, highlight promising developments, learn from common challenges, and consider collaborations and cooperation among justice stakeholders that could be further supported …

The Production Of Pollution And Consumption Of Chemicals In Canada, Dayna Nadine Scott, Lauren Rakowski, Laila Zahra Harris, Troy Dixon

Articles & Book Chapters

No abstract provided.

Cinquante Ans D’Analyses Des Mutations Des Normes Du Travail En Amérique Du Nord: Voyage Comparatiste Autour De La Pensée De Harry Arthurs, Marie-Ange Moreau

All Papers

La pensée de Harry Arthurs permet de parcourir les changements intervenus dans l’analyse des protections des travailleurs depuis 50 ans en Amérique du Nord en raison du développement de la « nouvelle économie » qui sape les constructions anciennes du droit du travail élaborées à l’époque fordiste. Ses analyses construites à partir d’une approche de relations industrielles, et du « socio legal pluralism », conduisent au-delà de l’approche comparatiste à poser des questions centrales, autour des transformations normatives, de leurs causes, de leur sens, de leur avenir, autour de la citoyenneté sociale dans le monde post-moderne, autour des frontières du …

No Refuge: Hungarian Romani Refugee Claimants In Canada, Julianna Beaudoin, Jennifer Danch, Sean Rehaag

Osgoode Legal Studies Research Paper Series

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. …

The Bunk House Rules: Housing Migrant Labour In Ontario, Adrian A. Smith

Osgoode Legal Studies Research Paper Series

The paper tackles the recent controversy surrounding an application to convert an abandoned school into housing for migrant agricultural workers in Ontario, Canada. It examines how the written reactions of community residents to a proposed municipal zoning by-law amendment convey and invoke understandings of the legal regulation of temporary labour migration. When viewed through a legal consciousness analytic lens, reconstituted to attend to the material practices and context underpinning residents’ discursive and ideological responses, what I term a ‘materialist legal consciousness studies’, it is evident that the residents’ submissions intervene in the organization and regulation of agricultural production. While framed …

Notes On The German Economy And Energy Ministry's Proposal For Reformed Investor-State Dispute Settlement (Isds), Gus Van Harten

Osgoode Legal Studies Research Paper Series

These notes provide a general reaction to a proposal by the German economy and energy ministry for ISDS in a treaty between Europe and the U.S. Overall, the proposal takes only a minority of the steps needed to make ISDS independent, fair, open, subsidiary, and balanced. I suggest that the appropriate approach remains to reject ISDS in new treaties (especially among Western developed countries). The proposal would be a good starting point for replacing ISDS in existing treaties with developing or transition countries – but that is clearly not its purpose.

Sentencing And The Salience Of Pain And Hope, Benjamin Berger

Osgoode Legal Studies Research Paper Series

What would a jurisprudence of sentencing that was induced from the experience of punishment, rather than deduced from the technocracy of criminal justice, look like? Rather than focusing narrowly on the question of quantum, such a jurisprudence would be concerned with the character and quality of punishment. A fit sentence would account for pain, loss, estrangement, alienation, and other features of the offender’s aggregate experience of suffering at the hands of the state in response to his or her wrongdoing. This would be a broader, more resolutely political conception of criminal punishment. This article shows that the jurisprudence of the …

The Icsid Under Siege: Unasur And The Rise Of A Hybrid Regime For International Investment Arbitration, Kendall Grant

Osgoode Legal Studies Research Paper Series

The legitimacy and effectiveness of the International Centre for Settlement of Investment Disputes (ICSID) — a dispute resolution body established in 1966 under the auspices of the World Bank — is a matter of spirited debate. It has been argued by some that ICSID’s ideological and procedural bias impedes fairness and by others that its complexity and cost restrict access to justice; many contend that the absence of an appeal process has exacerbated uncertainty and unpredictability. In 2009, in the wake of rampant dissatisfaction and ideological challenge, especially on the part of Latin American states, Ecuador proposed the creation of …

A History Of Preferential Share In Ontario: Intestacy Legislation And Conceptions Of The Deserving Or Undeserving Widow, Louise M. Mimnagh, Mcnamara Pizzale

Osgoode Legal Studies Research Paper Series

Ontario’s current method for trying to ensure the fair distribution of an intestate’s estate, or the estate of an individual without a valid Last Will and Testament, is outlined in the Succession Law Reform Act. Specifically, section 45(1) outlines the foundational concept of a “preferential share,” which entitles the surviving spouse to a prescribed financial interest in the estate which is prioritized above all other heirs.

The concept of a preferential share stands in sharp contrast with historical English common law methods of devolving intestate estates in which legal entitlements were heavily influenced by an individual’s gender and marital status. …

The Misguided Search For The Nature Of Law, Dan Priel

Osgoode Legal Studies Research Paper Series

Within analytic jurisprudence the question “what is law?” is often taken to be of primary significance for two distinct reasons. First, it is thought to assume logical priority to normative questions: before one can say something about law, one needs to know what law is. Second, this inquiry is also thought to be uniquely philosophical, a non-empirical, pre-sociological investigation that can then tell empirical investigators what they need to look for if they want to find instances of law in the world. This article offers a general critique of this view. I start with examining several arguments claiming that jurisprudence …

Towards A Natural Law Foundationalist Theory Of Universal Human Rights, Anthony Robert Sangiuliano

Osgoode Legal Studies Research Paper Series

The contemporary literature on the philosophy of human rights features a clash between two opposing theoretical paradigms. The first paradigm, called Functionalism, grounds the nature of human rights in their practical or political significance. The second paradigm, called Foundationalism, grounds the nature of human rights in a pre-political substratum of moral thought to which positive legal-political institutions ought to conform. What tends to make the first paradigm more appealing is that it avoids the problem of grounding human rights in moral considerations that may be ethnocentric and thus not acceptable to all peoples everywhere. This paper makes a case for …

Origins And Prospects For Employee Life And Health Trusts In Canada, S. B. Archer

Osgoode Legal Studies Research Paper Series

A discussion of the events and factors behind the establishment of pre-funded health benefit plans in Canada with reference to the experience of voluntary employee benefit associations in the United States and the auto sector restructuring in North America during 2008-2009. It is argued that "employee life and health trusts" are used in effect to defease legacy cost liabilities of employers and only likely to be used in the context of restructuring of a workplace or industry. their structure is compared to other target benefit programs currently being proposed in Canada and elsewhere. The key issues in their negotiation and …

Probate Actions And 'Suspicious Circumstances': A Third Standard Of Proof For Allegations Involving Moral Guilt, Louise M. Mimnagh

Osgoode Legal Studies Research Paper Series

When a will is challenged as being executed under suspicious circumstances, Canadian courts have historically sought clear, compelling, and cogent evidence to demonstrate the will’s validity. The associated standard of proof has been described as one residing beyond a balance of probabilities, and is conceptualized as the ‘third standard of proof’ in addition to the civil and criminal standards. This third standard of proof is also particularly appealing when allocating the risk of error in an estates context in which testators are deceased and no longer available to clarify their intentions or perspectives. However, after the 2008 Supreme Court of …

Ending Homelessness: Building Not Only Homes But Relationships Of Respect, Janet Mosher

Commissioned Reports, Studies and Public Policy Documents

No abstract provided.

Collective Bargaining, Sara Slinn

Commissioned Reports, Studies and Public Policy Documents

This research project reviews and evaluates the academic literature relating to obtaining and maintaining collective bargaining rights under the OLRA. Research indicates that procedural changes to representation processes including the mandatory representation vote significantly reduced the likelihood of certification, and that these effects were concentrated in more vulnerable units. This may partly be due to greater opportunity for delay and employer resistance under vote procedure compared to under card-based certification. The research also indicates that delay has significant effects on certification outcomes, as do ULP complaints and employer resistance tactics. ULPs have negative long-term effects, and are associated with difficulties …