Law Commons^™

Status Report: Working Data Document, Trevor C. W. Farrow, Lisa Moore, Nicole Aylwin

Commissioned Reports, Studies and Public Policy Documents

In 2013, the Action Committee on Access to Justice in Civil and Family Matters ("Action Committee") published the Access to Civil and Family Justice: A Roadmap for Change report which contains 9 justice development goals that offer a guide for addressing Canada's access to justice challenges. In late 2016 to early 2017, the Canadian Forum on Civil Justice (in support of the Action Committee) conducted the first ever national access to justice development goal survey ("Survey") in order to measure progress, and to identify gaps, challenges and success in the access to justice work that is being done in Canada.

Book Review - How The Other Half Banks: Exclusion, Exploitation And The Threat To Democracy, By Mehrsa Baradaran (Cambridge, Massachusetts, Harvard University Press, 2015), 336 Pp., $29.95, Stephanie Ben-Ishai

Articles & Book Chapters

In her bold and timely new book, Professor Baradaran brings an American perspective, supported by detailed empirical data and historical analysis, to bear on how to solve the problem of financial exclusion. She begins by situating her analysis in the context of the important relationship between banks and governments. A social contract has existed between banks and government since the earliest days of the Republic. The government supports banks through trust-inducing insurance, bailouts, liquidity protection, and a framework that allows for the allocation of credit to the entire economy. Banks support government by operating the central machinery of the economy …

Undercompensating For Discrimination: An Empirical Study Of General Damages Awards Issued By The Human Rights Tribunal Of Ontario, 2000-2015, Audra Ranalli, Bruce Ryder

Osgoode Legal Studies Research Paper Series

The authors present the results of a comprehensive quantitative analysis of general damages awards issued by the Human Rights Tribunal of Ontario from 2000 to 2015. From the results, the authors argue that general damages awards continue to be too low to reflect the importance of the equality rights protected by the Ontario Human Rights Code. While many expected that general damages awards would increase as a result of amendments to the Code that took effect in 2008, the data reveals that the range of the vast majority of general damages awards has remained relatively unchanged following the legislative reforms. …

The Rule Of Law, Legal Pluralism, And Challenges To A Western-Centric View: Some Very Preliminary Observations, Peer Zumbansen

Osgoode Legal Studies Research Paper Series

Despite hundreds of “Rule of Law” projects at the World Bank and a host of research into the foundations and content of the Rule of Law, we are still nowhere near an altogether satisfactory definition. While the Rule of Law is repeatedly being referred to in ‘legal assistance’ and ‘law reform’ projects and lives as a guiding principle in constitutions around the world, we don’t seem able to settle on a commonly agreed-upon approach to its nature and institutional form. In this context, the Rule of Law provides an opportunity to engage critically with the differences in perception and bias …

Technological Neutrality: Recalibrating Copyright In The Information Age, Carys J. Craig

Osgoode Legal Studies Research Paper Series

This article aims to draw the connection between how we conceptualize legal rights over information resources and our capacity to develop technologically neutral legal norms in the information age. More specifically, it identifies and critically examines three competing approaches to the idea of technological neutrality apparent in copyright jurisprudence. Ultimately, it is argued that true technological neutrality requires not simply the seamless expansion of legal rights into new technological contexts, but the careful, contextual recalibration of rights and interests in light of shifting values and changing circumstances. As a normative principle, technological neutrality in copyright law thus demands a nuanced …

Law And Digestion: A Brief History Of An Unpalatable Idea, Dan Priel

Osgoode Legal Studies Research Paper Series

According to a familiar adage the legal realists equated law with what the judge had for breakfast. As this is sometimes used to ridicule the realists, prominent defenders of legal realism have countered that none of the realists ever entertained any such idea. In this short essay I show that this is inaccurate. References to this idea are found in the work of Karl Llewellyn and Jerome Frank, as well as in the works of their contemporaries, both friends and foes. But I also show the idea is older than the legal realists. One finds casual references to it in …

Consult, Consent, And Veto: International Norms And Canadian Treaties, Shin Imai

Articles & Book Chapters

Large parts of Canada, from Ontario to parts of British Columbia and north to the Northwest Territories, are covered by the “numbered treaties”, signed between First Nations and the Crown between 1871 and 1929. These treaties provide for the continuation of Indigenous hunting, fishing and harvesting activities until the land is “taken up” by the provincial Crown for activities such as mining, lumbering and settlement. This draft book chapter argues that consent of First Nations should be required before further development that impact on their harvesting rights. The consent standard has already been widely adopted in the private sector both …

Globalizing User Rights-Talk: On Copyright Limits And Rhetorical Risks, Carys Craig

Articles & Book Chapters

Around the world, the focus of copyright policy reform debates is shifting from the protection of copyright owners’ rights towards defining their appropriate limits. There is, however, a great deal of confusion about the legal ontology of copyright “limits,” “exceptions,” “exemptions,” “defenses,” and “user rights.” While the choice of terminology may seem to be a matter of mere semantics, how we describe and conceptualize lawful uses within our copyright system has a direct bearing on how we delimit and define the scope of the owner’s control. Taking seriously the role of rhetoric in shaping law and policy, this Paper critically …

Chapter Viii: Protecting The Tax Base In The Digital Economy, Jinyan Li

Articles & Book Chapters

Protecting the tax base in the digital economy is Action 1 of the Organisation for Economic Co-operation and Development (OECD) project on Base Erosion and Profit Shifting (BEPS). The reason is simple: “International tax rules, which date back to the 1920s, have not kept pace with the changing business environment, including the growing importance of intangibles and the digital economy.” They can no longer distribute taxing rights fairly among countries and adequately define a country’s tax base.

Narratives Of Self Government In Making The Case, Benjamin Berger

Articles & Book Chapters

This is a book about persuasion. In Making the Case: The Art of the Judicial Opinion, Paul Kahn draws the judicial opinion into the centre of our field of vision and invites us to join him in inquiring into the role that it plays shaping our legal and political communities, and in seeking to understand how it does its work. Ultimately, he shows that persuasion is at the heart of the judicial opinion and, with that, at the heart of the rule of law.

Innovation And Access To Justice: Addressing The Challenge Of A Diverse Justice Ecosystem, Nicole Aylwin, Martha E. Simmons

Articles & Book Chapters

Despite having been a mainstay topic of conversation for many years in the fields of business, technology, public administration and other specialized service sectors such as medicine, ‘innovation’ has only recently begun to infuse conversations in the justice sector. With the widespread recognition that globalization is disrupting traditional legal roles and organizational structures, that technology is poised to radically reconfigure how legal services are delivered, and that despite best efforts, the access to justice gap continues to grow in Canada, innovation – as both a noun and a verb - has become a talisman, poised to help address the challenges …

Designing Administrative Justice, Lorne Sossin

Articles & Book Chapters

This article explores the adaptation of design thinking to administrative justice. The human centred design perspective has been missing from most debates surrounding the design and reform of administrative tribunals in Canada. As a result, the author asserts that the administrative justice system in Canada at all levels of government (federal, provincial, municipal, and Indigenous) is generally fragmented, poorly coordinated, and under-resourced in relation to the needs of its users and has multiple barriers of entry.

This article is divided into two parts. The first part reviews the development of design thinking in the context of legal services and legal …

Book Review: Americanah By Chimamanda Ngozi Adichie, Yemisi Dina

Articles & Book Chapters

Americanah is based on a love story that revolved around 3 continents - Africa, North America, and Europe. The themes of race, gender, and identity feature prominently in this award winning novel. Adichie’s story gives a vivid description of the lives of young teenagers of various ethnic and class structures in military-ruled Nigeria from the late 1970s to the 1990s and the beginning of a democratic government. It subtly describes the different ramifications of corruption and highlights a very degenerative period and the beginning of professional brain drain in the country.

Celebrating The Centennial Of The Income War Tax Act, 1917: The Future By The Light Of 100 Candles, Jinyan Li, J. Scott Wilkie

Articles & Book Chapters

No abstract provided.

Source Of Income And Canadian International Taxation, Jinyan Li, J. Scott Wilkie

Articles & Book Chapters

No abstract provided.

The ‘Atlantic Seat’ On The Supreme Court Of Canada: An Endangered Species?, Philip Girard

All Papers

The sigh of relief on the Atlantic coast could be heard all the way to Ottawa on October 17, 2016. On that day, Prime Minister Justin Trudeau announced the nomination of Justice Malcolm Rowe of the Newfoundland and Labrador Court of Appeal to the Supreme Court of Canada seat vacated by Justice Thomas Cromwell. Justice Cromwell’s replacement was to be the first appointed pursuant to a new process put in place by the Trudeau government. When that process was unveiled on August 2, 2016, Trudeau announced that the position would be open to any qualified Canadian lawyer or judge who …

Social Enterprise, Law And Legal Education, Devon Kapoor, Lorne Sossin

All Papers

In this brief essay, we explore the relationship between law and social enterprise. Is social enterprise, like the “corporation,” a legal construct, or is it a term used to capture an emerging set of practices by existing entities—for example, where registered charities set up a separate structure to generate revenues which then fund the charitable activities. An organization that has undertaken such practices is the well-known Canadian charity, “Me to We,” which, while focused on development activities in sub-Saharan Africa, also has a revenue generating operation selling fair trade T-shirts and other goods. In describing this relationship, Me to We’s …

The Smell Of Neglect : A Trans-Corporeal Feminism For Environmental Justice, Dayna Scott

Articles & Book Chapters

Environmental justice struggles are increasingly contests waged over data and knowledge, involving claims of expertise and counter-expertise (Corburn 2003). A common observation is that a reliance on formal science elevates the data generated by accredited knowledge professionals to a prime political position, ‘leaving little or no room for the layperson’ (Fischer 2000: 51; Yearley 2000). This results in a growing tension between those who have ‘knowledge’ and those who do not, as well as the active re-negotiation of those categories (Wiebe 2013). Residents of pollution hotspots and their allies in the environmental justice movement make a normative claim for valuing …

'I Simply Do Not Believe...': A Case Study Of Credibility Determinations In Canadian Refugee Adjudication, Sean Rehaag

Articles & Book Chapters

Refugee determinations often turn on a single question: Is the refugee claimant telling the truth? While there are other factors that refugee adjudicators must consider, determining whether the claimant's story is credible remains central to virtually all refugee hearings. In light of the key role credibility assessments play in refugee determinations, scholars are paying increasingly more attention to how refugee adjudicators assess credibility.

This article contributes to the growing body of research on this subject by examining the full caseload of one refugee adjudicator at Canada's Immigration and Refugee Board (IRB) over a three-year period. That adjudicator, David McBean, denied …

Law School As Social Innovation, Lorne Sossin

Articles & Book Chapters

Legal education is in the midst of a range of challenges and disruptions. This address outlines these dynamics, and explores the potential of social innovation as a model for law schools which both responds to current challenges and enhances resilience in the face of disruption. By reframing legal education as facing outward, and advancing its public interest mandate through partnerships, collaboration and academic initiatives designed to solve social problems, law schools can enhance the student learning experience, generate new forms of legal knowledge and thrive at a time of rapid change. Address delivered at the Australian Law Teachers Association (ALTA) …

Therapeutic Jurisprudence, Professionalism, And "Spikes" For Lawyers, Shelley Kierstead

Articles & Book Chapters

Lawyers, whether advocating in court, negotiating deals on clients’ behalf, or writing advice letters and briefs, use words to make a living. Their aim is to use these “words” to problem-solve for clients and to deliver an outcome the clients consider positive. In reality, however, there are times in each lawyer’s career when he or she is not able to help clients achieve the results the clients are looking for. When this occurs, lawyers must deliver “bad news” to the client. For the purposes of this article, I define “bad news” as being “any information which adversely and seriously affects …

The Internet As A Site Of Legal Education And Collaboration Across Continents And Time Zones: Using Online Dispute Resolution As A Tool For Student Learning, Martha Simmons, Darin Thompson

Articles & Book Chapters

Increasingly, digital technologies are influencing and impacting dispute resolution, particularly in the emerging field of online dispute resolution (ODR). ODR holds the potential to increase access to justice by engaging disputants in dramatically new ways. As a relatively new subject, ODR is unlikely to form part of the traditional curriculum at law schools. Aside from the question of whether it will become a mainstream part of tomorrow’s legal or dispute resolution landscape, ODR does show us that a familiarity with technology is becoming more important for tomorrow’s lawyers. As educators, how can we expose law students to these new forces …

Guest Editorial: Personal Insolvency – A Fresh Start, Rosalind Mason, Jason Kilborn, Stephanie Ben-Ishai, Joseph Spooner

Articles & Book Chapters

No abstract provided.

The Abstract Subject Of The Climate Migrant: Displaced By The Rising Tides Of The Green Energy Economy, Dayna Scott, Adrian A. Smith

Articles & Book Chapters

A controversial proposal to build the mammoth ‘Site C’ dam on the Peace River in northwestern Canada offers an opportunity to explore the intersections of climate and migration issues under debate in international environmental governance circles. Site C threatens to flood traditional fishing spots and traplines of Indigenous peoples in the name of the ‘green energy’ economy. We consider how people displaced by renewable energy projects justified as climate mitigation policies might constitute a different kind of ‘climate refugee’ in that they are ‘displaced without moving’ – the connections between the land and the people are severed to the extent …

Legitimate Expectations In Canada: Soft Law And Tax Administration, Sas Ansari, Lorne Sossin

Articles & Book Chapters

This chapter examines the relationship between legitimate expectations and soft law. In what circumstances can an agency’s guidelines create law — or at least legally enforceable expectations? At first glance, the answer would appear obvious. The key reason for developing soft law is to provide guidance and transparency as to the process (and sometimes the substance) of administrative action. Soft law by its nature gives rise to expectations. Whether those expectations, in turn, give rise to legal effects is decidedly less clear. In fact, this question has vexed Canadian administrative law. Nowhere are questions of soft law and legitimate expectations …

A Flex-Time Jd In Canada: New Approaches To The Accessibility Of Legal Education, Darcel Bullen, Lorne Sossin

Articles & Book Chapters

This article examines accessibility and inclusion in legal education. Responding to the Canadian Bar Association’s call for accessible and innovative legal education in the Futures Report, this study explores the possibilities (and limits) of a Flex Time Juris Doctor (“JD”) program and how such a program might foster further diverse and inclusive learning community for law students.The article situates the debate around more flexible forms of legal education in historical context, highlighting the role part-time legal studies has played in facilitating the entry of outsider groups into the legal profession. While there is not a mid-sized city in the US …

Labour Effects Of Corporate Groups In Canada, Eric Tucker, Abdalla Barqawi

Articles & Book Chapters

In Canada, the norms of capitalist legality are deeply entrenched. As a result, businesses are generally free to structure their affairs in any way that serves their interests. One of the most foundational norms is that each corporation has a distinct legal personality. Not only does this protect shareholders and directors from personal responsibility for the corporation’s liabilities, but it also means that one corporation is not normally liable for the obligations of another corporation even though both corporations are owned and controlled by the same individuals.

“Sacrifice Zones” In The Green Energy Economy: Toward An Environmental Justice Framework, Dayna Scott, Adrian A. Smith

Articles & Book Chapters

The environmental justice movement validates the grassroots struggles of residents of places which Steve Lerner refers to as “sacrifice zones”: low-income and racialized communities shouldering more than their fair share of environmental harms related to pollution, contamination, toxic waste, and heavy industry. On this account, disparities in wealth and power, often inscribed and re-inscribed through social processes of racialization, are understood to produce disparities in environmental burdens. Here, we attempt to understand how these dynamics are shifting in the green energy economy under settler colonial capitalism. We consider the possibility that the political economy of green energy contains its own …

The International Law Of Secession And The Protection Of The Human Rights Of Oppressed Sub-State Groups: Yesterday, Today And Tomorrow, Obiora C. Okafor

Articles & Book Chapters

This paper focuses on significant patterns/features in the historical development of the international law of secession and its contribution over time (or the lack thereof) to the struggle to afford greater protection to oppressed sub-state groups the world over. It was Crawford Young who once observed that “the state as an analytical quarry is an elusive and complex prey.” With the necessary modifications, this observation applies with almost equal force to the international law of secession. Complexity and confusion loom too large in this area of international law. For example, there is, at best, little clarity in the literature of …

Fixed-Term Contracts And Principle Of Equal Treatment In Canada, Eric M Tucker, Alec Stromdahl

Articles & Book Chapters

Canada is best characterized as a liberal market economy which lightly regulates employment relations and, in particular, the duration of employment contracts.1 As such, many of the kinds of protections that might be found in other countries included in this dossier are not present in Canada. There are, however, a few older statutory provisions that limit the length of fixed-term contracts and impose formalities for their creation because of a concern about the creation of disguised forms of unfree labour. There is also a small body of common law that reflects a preference for contracts of indefinite hiring over fixed …