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Articles 1 - 26 of 26
Full-Text Articles in Law
A Historical Perpective On Contemporary Challenges In Workers' Compensation, Terence G. Ison
A Historical Perpective On Contemporary Challenges In Workers' Compensation, Terence G. Ison
Osgoode Hall Law Journal
Workers' compensation has entered a period of rising complexity and increasing pressures for system change. This article explains the extent to which important assumptions and assertions made in this process are historically correct. The discussion includes the historical interaction of tort liability with workers' compensation, and the current proposals for "privatization."
The Rise Of Balanced Budget Laws In Canada: Legislating Fiscal (Ir)Responsibility, Lisa C. Philipps
The Rise Of Balanced Budget Laws In Canada: Legislating Fiscal (Ir)Responsibility, Lisa C. Philipps
Osgoode Hall Law Journal
Virtually unknown in Canada before the 1990s, balanced budget legislation has suddenly become popular across the country. The author examines the wide diversity of mechanisms being used to limit state fiscal powers, including spending caps, anti-deficit rules, and tax referenda. Evaluating these measures, the author raises concerns about the impact of balanced budget laws on economic stability, social justice, and political democracy. She warns against discounting either their instrumental effects or their power to shape public finance discourse. Though some provinces have adopted less severe versions, the author concludes that these efforts only partially mitigate the dangers of balanced budget …
Protecting Rights And Promoting Democracy: Judicial Review Under Section 1 Of The Charter, Martha Jackman
Protecting Rights And Promoting Democracy: Judicial Review Under Section 1 Of The Charter, Martha Jackman
Osgoode Hall Law Journal
The author argues that, under section 1 of the Charter, the courts must weigh carefully the democratic potential of rights guarantees against the democratic quality of government decisions which undermine those rights. The article points to the Egan and Eldridge cases as examples of decisions in which the willingness to uphold rights violations under section 1, in the name of deference to the legislature, actually undermines democratic values. The article examines the RIR-MacDonald decision as a starting point for a section 1 analysis which identifies the characteristics of government decisionmaking that must be present if rights violations are to be …
Black Man, White Justice: The Extradition Of Matthew Bullock, An African-American Residing In Ontario, 1922, John C. Weaver
Black Man, White Justice: The Extradition Of Matthew Bullock, An African-American Residing In Ontario, 1922, John C. Weaver
Osgoode Hall Law Journal
Canadian extradition law uncomfortably combines common law precepts with compromises deemed necessary for carrying out treaty obligations. In this context, for example, the substitution of affidavits for parol evidence has been an area where international courtesy has clashed with a valued means of testing an allegation, namely the cross-examination of witnesses. To reject an application for extradition because only documentary evidence is provided can amount to a censure of judicial proceedings in the state making the request; rejection may suggest that a fair trial cannot be secured. In 1922, in a sensational but hitherto uncited case, an Ontario extradition judge …
The Mareva Injunction In Aid Of Foreign Proceedings, Paul Michell
The Mareva Injunction In Aid Of Foreign Proceedings, Paul Michell
Osgoode Hall Law Journal
Courts have long awarded Mareva injunctions to prevent defendants from frustrating the domestic litigation process. An emerging question is whether Canadian courts can order Mareva injunctions in aid of foreign proceedings. Traditional English authority, recently confirmed by the Privy Council, says no. Yet Canadian courts take a different view, and are in the process of developing principles to guide the awarding of Mareva relief in aid of foreign proceedings. After a critical analysis of the debate, this article evaluates several recent decisions, argues in favour of such a power, and proposes a framework by which it should be exercised.
Spousal Incompetency And The Charter, Hamish Stewart
Spousal Incompetency And The Charter, Hamish Stewart
Osgoode Hall Law Journal
This article considers the effect of the Canadian Charter of Rights and Freedoms on the rule of spousal incompetency in criminal proceedings. The rule is arguably under-inclusive, in that it is not available to protect opposite-sex couples who are not legally married or same-sex couples; on the other hand, the rule is arguably offensive to the modem conception of marriage. The Charter arguments for each of these positions are considered, and it is submitted that the Charter requires the rule of spousal incompetency, whatever it is, to apply equally to legally married couples, to cohabitants, and to same-sex couples. A …
Small Claims Court Cant, Seana C. Mcguire, Roderick A. Macdonald
Small Claims Court Cant, Seana C. Mcguire, Roderick A. Macdonald
Osgoode Hall Law Journal
Small claims courts have traditionally been seen as a valuable institutional innovation for facilitating access to justice. In Quebec, the small claims court is particularly prized because most corporate plaintiffs may not be plaintiffs, because parties may not be represented by lawyers and because judges are to play an activist role in managing the litigation process. This article reports the findings of an empirical study of the plaintiff population of the Small Claims Court of downtown Montreal during 1992. It presents information on the socio-demographic characteristics of plaintiffs, the nature of claims brought, the dispute process followed, and the outcome …
Law's Meaning, Brian Slattery
Law's Meaning, Brian Slattery
Osgoode Hall Law Journal
It is often thought that the meaning of a legal provision must reside in the minds of its authors or its interpreters, or a combination of the two. Indeed, the point may seem so obvious that it scarcely needs any justification. Is there any sense, then, in the claim sometimes made by judges that a law has a meaning of its own, one that is distinct from the intentions of authors and interpreters alike? At first sight, the claim appears extravagant and self-serving. However, there is more to it than meets the eye. Drawing on an example from the world …
Private Enforcement Of Competition Laws, Kent Roach, Michael J. Trebilcock
Private Enforcement Of Competition Laws, Kent Roach, Michael J. Trebilcock
Osgoode Hall Law Journal
This article addresses a long-standing controversy in many antitrust/competition law regimes around the world, including Canada, as to the appropriate role for private enforcement of competition laws. The United States, from the origins of its antitrust law in 1890, has provided for an expansive role for private actions for violations through treble damages remedies, class action procedures, one-way cost rules, contingent fees, and civil jury trials. The Canadian experience has been sharply different: statutory recognition of any role for private action occurred only in amendments to the Competition Act in 1976, and private damages actions were confined to criminal violations …
The Canadian Charter And Public International Law: Redefining The State's Power To Deport Aliens, Daniela Bassan
The Canadian Charter And Public International Law: Redefining The State's Power To Deport Aliens, Daniela Bassan
Osgoode Hall Law Journal
This article considers the relationship between international and domestic law in deportation proceedings. The argument is made that, generally, Canadian law should be interpreted consistently with Canada's obligations at international law, as reflected in conventions and custom. More specifically, the article proposes that Canada's obligation at international law to protect the family and the child be recognized in Canadian law as one of the principles of fundamental justice under section 7 of the Charter. The protection of the family is engaged by the deportation of domiciled aliens because, by definition, these deportees have been in Canada for a long period …
Regrouping In Defence Of Minority Rights: Kymlicka's Multicultural Citizenship, Leighton Mcdonald
Regrouping In Defence Of Minority Rights: Kymlicka's Multicultural Citizenship, Leighton Mcdonald
Osgoode Hall Law Journal
This article outlines and critically examines Will Kymlicka's reconstructed defence of minority rights. Although various doubts are cast on Kymlicka's own thesis, it is argued that there are alternative strategies-strategies that Kymlicka too hastily dismisses-available to defenders of (collective) minority rights. Further, any vindication of minority rights makes urgent the separate question of what (if any) institutional expression they should receive. One important question overlooked by Kymlicka is whether, contrary to widespread assumptions, minority rights are in fact appropriate candidates for constitutional entrenchment. Some of the relevant considerations raised by this issue are discussed in the final section of the …
Fundamental Justice And The Deflection Of Refugees From Canada, James C. Hathaway, R. Alexander Neve
Fundamental Justice And The Deflection Of Refugees From Canada, James C. Hathaway, R. Alexander Neve
Osgoode Hall Law Journal
Canada is preparing to implement a controversial provision of the Immigration Act that will deny asylum seekers the opportunity even to argue their need for protection from persecution. Under a policy labelled "deflection" by the authors, the claims of refugees who travel to Canada through countries deemed safe, likely the United States and eventually Europe, will be rejected without any hearing on the merits. Because deflection does not require substantive or procedural harmonization of refugee law among partner states, it will severely compromise the ability of genuine refugees to seek protection. The article considers the impact of the Singh ruling …
Neuf À Zero Ne Suffit Plus: Gould C. Yukon Order Of Pioneers Et La Perspective Feminine, Marie-France Major
Neuf À Zero Ne Suffit Plus: Gould C. Yukon Order Of Pioneers Et La Perspective Feminine, Marie-France Major
Osgoode Hall Law Journal
Do women see the world in a way that is peculiar to them, that is, differently from the perceptions of men? In view of the decision of the Supreme Court of Canada in Gould v. Yukon Order of Pioneers, this question raises a highly pertinent issue. In Gould, where the subject of litigation was the interpretation of the human rights legislation of the Yukon, the Court was divided according to the gender of the judges. Only the female judges, in dissent, addressed the problem in terms of power, vulnerability, and equality, while the male judges adhered to a strict approach …
The Metaphysics Of Tracing: Substituted Title And Property Rhetoric, Craig Rotherham
The Metaphysics Of Tracing: Substituted Title And Property Rhetoric, Craig Rotherham
Osgoode Hall Law Journal
Tracing is conceptualized as the "following" of an object through an exchange transaction and into the product of that exchange. Why is this so and what are the consequences? This article argues that the presentation of tracing in the metaphysical language of transmutation allows the doctrine to be depicted as consistent with axiomatic notions of property that understand it as pre-political and that preclude judicial readjustment of proprietary rights. However, the metaphysical conceptualization of tracing gives the remedy a conceptual structure that has resulted in the doctrine developing dysfunctionally when compared with the normative justifications that motivated its initial development. …
The Characterization Of Barriers To Interprovincial Trade Under The Canadian Constitution, George Vegh
The Characterization Of Barriers To Interprovincial Trade Under The Canadian Constitution, George Vegh
Osgoode Hall Law Journal
This article identifies barriers to interprovincial trade as a legislative subject matter under the constitutional division of powers. It argues that interprovincial trade barriers should be characterized in terms of the disproportionate impact that provincial measures have on the flow of trade between the provinces. The term "disproportionate impact" means the measures' impediments to the flow of trade which are not necessary to implement the objectives of provincial legislation. This method of identifying trade barriers has been used to address trade barriers and other arrangements, such as the General Agreement on Tariffs and Trade, the Canada-United States Free Trade Agreement, …
Coming To Terms With Plan B: Ten Principles Governing Secession, Patrick Monahan, Michael J. Bryant
Coming To Terms With Plan B: Ten Principles Governing Secession, Patrick Monahan, Michael J. Bryant
Commissioned Reports, Studies and Public Policy Documents
No abstract provided.
Comparison And Assessment Of The Tax Treatment Of Foreign Source Income In Canada, Australia, France, Germany And The United States, Jinyan Li, Brian Arnold, Nolan Sharkey
Comparison And Assessment Of The Tax Treatment Of Foreign Source Income In Canada, Australia, France, Germany And The United States, Jinyan Li, Brian Arnold, Nolan Sharkey
Commissioned Reports, Studies and Public Policy Documents
No abstract provided.
Poverty Law And Poor People: The Place Of Gender And Class In Clinic Practice, Shelley A. M. Gavigan
Poverty Law And Poor People: The Place Of Gender And Class In Clinic Practice, Shelley A. M. Gavigan
Journal of Law and Social Policy
No abstract provided.
Rejuvenating Copyright, David Vaver
Rejuvenating Copyright, David Vaver
Articles & Book Chapters
The law of copyright has, especially when combined with other legal mechanisms, become a potent and wide-ranging instrument - some say too much so for protecting and establishing markets in a wide range of products. This paper argues for a fundamental reassessment of domestic and international law. The protectionists' rallying cry of "to each cow its calf" has produced an incoherent system many ordinary people find unacceptable. Questions such as what specific activities deserve encouragement, what stimulus should be offered, and who should benefit and in what proportions need to be asked and answered. A recontoured copyright system may then …
Aboriginal Governments And The Canadian Charter Of Rights And Freedoms, Kent Mcneil
Aboriginal Governments And The Canadian Charter Of Rights And Freedoms, Kent Mcneil
Osgoode Hall Law Journal
Starting with the premise that the Aboriginal peoples of Canada have an inherent right of self-government which is constitutionally protected, this article analyzes the issue of whether Aboriginal governments exercising that right are subject to the Canadian Charter of Rights and Freedoms. This issue is examined from a legal perspective based on textual analysis and common law principles. It is concluded that, as a matter of Canadian constitutional law, with the exception of the section 28 gender equality provision, the Charter does not apply to Aboriginal governments. This avoids imposition of the Charter generally on these governments by judicial decree, …
Law, Legal Institutions, And The Legal Profession In The New Economy, Harry W. Arthurs, Robert Kreklewich
Law, Legal Institutions, And The Legal Profession In The New Economy, Harry W. Arthurs, Robert Kreklewich
Osgoode Hall Law Journal
The diverse, dynamic, and inchoate developments we call the new economy are a catalyst for responsive and reflexive changes in the production of law, legal institutions, and the legal profession in Canada and elsewhere. This article examines these changes alongside ongoing themes of the privatization of legal production, hybridization, and juridification. The resulting transformation of legal production has reshaped the role of law experts and aggravated existing tendencies of stratification, concentration, diversification, and marginalization within the legal profession itself.
Recent Trends In The Organization Of Legal Services, Frederick H. Zemans
Recent Trends In The Organization Of Legal Services, Frederick H. Zemans
Articles & Book Chapters
No abstract provided.
When Titans Clash - The Limits Of Constitutional Adjudication, Alan N. Young
When Titans Clash - The Limits Of Constitutional Adjudication, Alan N. Young
Articles & Book Chapters
The newspaper headline read: "Court rules against rape victims: Advocates shocked as judges give accused right to demand private counselling records." I Once again, members of the public are left with the impression that the Supreme Court of Canada has awarded the spoils of battle to the accused at the expense of sexual assault complainants. In this comment, I hope to demonstrate two critical points. First, in fairness to the court, it cannot be asserted that the court has afforded sexual assault victims less protection than other victims and/or witnesses who have legitimate expectations of informational privacy which they wish …
The Organic Constitution: Aboriginal Peoples And The Evolution Of Canada, Brian Slattery
The Organic Constitution: Aboriginal Peoples And The Evolution Of Canada, Brian Slattery
Osgoode Hall Law Journal
Despite recent advances in the law of aboriginal rights, most Canadian lawyers still tacitly view the Constitution as the outgrowth of European legal traditions, transplanted into North America. This article identifies the main features of this model of the Constitution and proposes a more appropriate model to replace it, one that recognizes the Constitution's deep roots in Canadian history and traditions, and acknowledges the distinctive contributions of Aboriginal peoples and their long-standing relations with the Crown.
Secret Proceedings In Canada, Ian Leigh
Secret Proceedings In Canada, Ian Leigh
Osgoode Hall Law Journal
National security and constitutionalism are often thought to be fundamentally incompatible. Recent reforms in Canada involve creative attempts to recognize constitutional rights to fair procedure within processes in which individuals' rights are in conflict with state security interests, such as security clearance, deportation, or access to information. The procedures examined in this article include in camera and ex parte review by Federal Court judges and the use of the Security Intelligence Review Committee. The analysis draws on interviews with participants and compares these procedures with other situations in which restrictions upon open justice have faced Charter challenge, especially under sections …
Search And Seizure Of The Press, Christie A. Mcneill
Search And Seizure Of The Press, Christie A. Mcneill
Osgoode Hall Law Journal
In the companion cases of Canadian Broadcasting Corp. v. Lessard and Canadian Broadcasting Corp. v. New Brunswick (AG.), the Supreme Court of Canada decided that the media should not have any special protection from police search and seizure above that afforded to ordinary citizens. In refusing to create a standard of heightened constitutional protection to be met before a search warrant can be issued against the press, the Court turned a blind eye to its past interpretations of section 8 of the Charter as containing a standard of reasonableness that varies depending upon the context of the search and the …