Open Access. Powered by Scholars. Published by Universities.®

Law Commons™

Open Access. Powered by Scholars. Published by Universities.®

Osgoode Hall Law School of York University

1998

Discipline
Keyword
Publication
Publication Type

Articles 1 - 30 of 30

Full-Text Articles in Law

Unwilling Actors: Why Voluntary Mediation Works, Why Mandatory Mediation Might Not, Gary Smith Oct 1998

Unwilling Actors: Why Voluntary Mediation Works, Why Mandatory Mediation Might Not, Gary Smith

Osgoode Hall Law Journal

This article examines the debate over the introduction of mandatory mediation in civil litigation. It analyzes why and how voluntary mediation works in order to measure how the process might change under the new regime being implemented in Ontario. The underlying narrative structures of mediation are exposed using semiotic theories commonly employed in the study of theatre. This article will show that mediation, when imposed on unwilling parties, will hinder its efficacy and compromise its theatrical processes. The author concludes that the best way to ensure that making mediation mandatory does not discredit the efficacy and benefits of the process …

Go to article

Defending The Weak And Fighting Unfairness: Can Mediators Respond To The Challenge?, Michael Coyle Oct 1998

Defending The Weak And Fighting Unfairness: Can Mediators Respond To The Challenge?, Michael Coyle

Osgoode Hall Law Journal

As mediation gains in popularity as a tool for resolving civil disputes, and particularly as a substitute for court decisions, some have questioned mediation's ability to assure fairness of process and outcome. Others have argued that the main strength of mediation lies in the power it gives the parties to invent their own approach to resolving their dispute, leaving little room for mediators to impose their own notions of fairness on the process. This article examines the extent to which mediators have an obligation to address issues of fairness in the processes they manage. Through a functional and context-based analysis …

Go to article

Would Adr Have Saved Romeo And Juliet?, Pam Marshall Oct 1998

Would Adr Have Saved Romeo And Juliet?, Pam Marshall

Osgoode Hall Law Journal

Like many disputes, Romeo and Juliet is a story with no winners; the outcome is destined to be lose-lose. Disputes are an inevitable part of human interaction and people need to learn effective and reasonable ways of dealing with their disputes. The question is how can this be done in a way that leaves people intact. The article compares and contrasts two modes for resolving disputes: adjudication and alternative dispute resolution (ADR). The article looks at what happens when disputes arise-how do problems become "disputes" and what do people do about them? The role of lawyers as dispute creators as …

Go to article

Protecting The Confidentiality Of Communications In Mediation, Owen V. Gray Oct 1998

Protecting The Confidentiality Of Communications In Mediation, Owen V. Gray

Osgoode Hall Law Journal

This article explores the justifications for protecting mediation communications from disclosure. It reviews the existing legal protections for mediated dispute settlement discussions. The major issues that seem to arise when statutory reform is considered are identified, and a recent study of the issue by the Manitoba Law Reform Commission is described and critiqued. The author argues that a distinction should be made between circumstances in which a party is required or permitted to testify about what took place in mediation, and circumstances in which the mediator may be required to do so. He suggests that mere extension to mediation of …

Go to article

Conciliation Des Litiges Et Formes Alternatives De Régulation En Droit Administratif Fédéral, France Houle, Daniel Mockle Oct 1998

Conciliation Des Litiges Et Formes Alternatives De Régulation En Droit Administratif Fédéral, France Houle, Daniel Mockle

Osgoode Hall Law Journal

Despite the considerable attention devoted to Alternative Dispute Resolution (ADR) in Canada, few studies are available on its impact in public law, especially in federal administrative law. Yet, there is much evidence that these techniques are increasingly used and it is therefore timely to catalogue and classify them. To this end, a distinction is drawn between dispute resolution techniques used for transactional purposes and those used for regulatory purposes. This classification provides the basis for a theoretical analysis which focuses on public law and raises questions generally neglected in the existing literature concerning ADR: the particular nature of federal law, …

Go to article

Why Arbitrate?: Ontario's Recent Experience With Commercial Arbitration, Randy A. Pepper Oct 1998

Why Arbitrate?: Ontario's Recent Experience With Commercial Arbitration, Randy A. Pepper

Osgoode Hall Law Journal

In 1988, Ontario adopted the International Commercial Arbitration Act and in January 1992 the Arbitration Act, 1991 came into force for domestic arbitrations. These statutes and similar legislation in other provinces pushed Canadian arbitration regimes into the forefront of industrial nations. However, there has not been a significant increase in the number of commercial arbitrations being conducted in Ontario. This article suggests that Ontario is ideally placed to become an important centre for domestic and international arbitration. The author asserts that if commercial parties and their counsel were more familiar with the benefits of the arbitral process and with the …

Go to article

Factum Of The Charter Committee On Poverty Issues: In The Supreme Court Of Canada On Appeal From The Federal Court Of Appeal Between Mavis Baker, Appellant. And The Minister Of Citizenship And Immigration, Respondent., John Terry, Craig Scott Sep 1998

Factum Of The Charter Committee On Poverty Issues: In The Supreme Court Of Canada On Appeal From The Federal Court Of Appeal Between Mavis Baker, Appellant. And The Minister Of Citizenship And Immigration, Respondent., John Terry, Craig Scott

Commissioned Reports, Studies and Public Policy Documents

This appeal is about the validity of the decision of the Minister of Citizenship and Immigration (the "Minister") to deny Mavis Baker's application for permanent residence on humanitarian and compassionate grounds and, in all likelihood, separate her from her children.

Go to article

L'Indépendance Judiciaire Et La Cour Suprême: Reconstruction Historique Douteuse Et Théorie Constitutionnelle De Complaisance, Jean Leclair, Yves-Marie Morissette Jul 1998

L'Indépendance Judiciaire Et La Cour Suprême: Reconstruction Historique Douteuse Et Théorie Constitutionnelle De Complaisance, Jean Leclair, Yves-Marie Morissette

Osgoode Hall Law Journal

The recent decision of the Supreme Court of Canada in the Reference re: Remuneration of Judges in the Provincial Court of Prince Edward Island has given judicial independence a surprising interpretation. A majority of the Court stated that this principle requires legislative bodies to establish independent procedures for setting judicial salaries. The Court maintained that the basis of judicial independence is to be found in the preamble of the Constitution Act, 1867, rather than the express provisions of the constitutional text. The authors argue in Part I of this article that the Court transformed fundamentally and without reason traditional conceptions …

Go to article

Négligence, Victimes Indirectes Et Préjudice Moral En Common Law: Les Limites A La Réparation Se Justifient-Elles?, Louise Belanger-Hardy Jul 1998

Négligence, Victimes Indirectes Et Préjudice Moral En Common Law: Les Limites A La Réparation Se Justifient-Elles?, Louise Belanger-Hardy

Osgoode Hall Law Journal

Common law courts have traditionally been reluctant to award damages for emotional harm. This is particularly true in cases of secondary victims of negligence. Preoccupied by the fear of fraudulent claims or the danger of opening the floodgates, courts strive to limit the scope of liability in these circumstances. But how legitimate is the reasoning that has served to support such a restrictive analysis of the decision to award damages for emotional harm? The author explores the limitations of the Canadian courts' current approach and analyzes the basis of their concern. She concludes that not only do the beliefs espoused …

Go to article

Aboriginal Rights, Aboriginal Culture, And Protection, Gordon Christie Jul 1998

Aboriginal Rights, Aboriginal Culture, And Protection, Gordon Christie

Osgoode Hall Law Journal

There is a common perception that elements of mainstream society are disrespectful of Aboriginal culture. This article argues that developments in the law offer promise for the protection of Aboriginal "intellectual products," manifestations of Aboriginal culture reflecting their world-view. What Aboriginal peoples would like to see protected, however, are not so much words, pictures, or acts but rather the values, beliefs, and principles that give these meaning. Such, the author argues, are best protected by mechanisms internal to Aboriginal communities. Furthermore, the lack of such mechanisms would not justify the intrusion of Canadian law, but rather raises a call within …

Go to article

The Division Of Labour: An Examination Of Certification Requirements, Gary Svirsky Jul 1998

The Division Of Labour: An Examination Of Certification Requirements, Gary Svirsky

Osgoode Hall Law Journal

Under Canadian and American labour law, organized workers must be divided into bargaining units. In order to negotiate with employers on behalf of workers, these bargaining units must be certified. This entails receiving the approval of the appropriate labour relations board. The author argues that this requirement informs the outcomes of collective bargaining. This article takes the position that certification is a subtle method for maintaining the existing social order and the consequent distribution of power, without actually appearing to do so. Certification can be understood as a tool for fragmenting the potential power of labour's unity. The present analysis …

Go to article

Financing Of Litigation By Third-Party Investors: A Share Of Justice?, Poonam Puri Jul 1998

Financing Of Litigation By Third-Party Investors: A Share Of Justice?, Poonam Puri

Osgoode Hall Law Journal

This article addresses the issue of the funding of civil litigation within the framework of access to justice and the normative goal of increasing access to the civil justice system. The author critically analyzes and cautiously advances the case for the recent development of the financing of litigation by third-party investors. The argument is that investor financing has the potential to increase access to the civil justice system by ameliorating the economic barriers to litigation. The author evaluates investor financing against existing public and private models of financing litigation such as legal aid plans, litigation subsidy funds, and contingent fee …

Go to article

A Generation Of Human Rights: Looking Back To The Future, Rosalie Silberman Abella Jul 1998

A Generation Of Human Rights: Looking Back To The Future, Rosalie Silberman Abella

Osgoode Hall Law Journal

The author traces the development of human rights in North America since the Second World War, and examines the socio-political environment in which these developments took place. In examining what appears to be an existing backlash against the earlier vigorous pursuit of rights for disadvantaged groups, the author distinguishes between civil liberties and human rights, and focuses on how a preoccupation with civil liberties is impeding the ability to promote human rights. She concludes by discussing the evolution of human rights for women this generation, and observes that while there have been significant gains, especially numerically, there has also been …

Go to article

Antidiscrimination And Affirmative Action Policies: Economic Efficiency And The Constitution, Edward M. Iacobucci Apr 1998

Antidiscrimination And Affirmative Action Policies: Economic Efficiency And The Constitution, Edward M. Iacobucci

Osgoode Hall Law Journal

This article assesses the economic efficiency of race-based antidiscrimination and affirmative action policies with a view to assessing relevant Canadian and American constitutional law. The article reviews economic arguments about why antidiscrimination laws may be efficient in addressing externalities, in hastening the exit of bigoted employers from the market, and in preventing the potentially inefficient use of race as a proxy for information; affirmative action may be efficient in accounting for differential signaling costs across race. The article concludes that economic analysis supports the approach in section 15 of the Charter which generally bans discriminatory government action, but recognizes that …

Go to article

Return Of The Chancellor's Foot?: Discretion In Permanent Resident Deportation Appeals Under The Immigration Act, Richard Haigh, Jim Smith Apr 1998

Return Of The Chancellor's Foot?: Discretion In Permanent Resident Deportation Appeals Under The Immigration Act, Richard Haigh, Jim Smith

Osgoode Hall Law Journal

This article examines recent changes to section 70 of the Immigration Act that allow the minister of immigration to deport Canadian permanent residents who are determined to be a danger to the public without proper procedural safeguards. The authors argue that much of both current theoretical literature on discretion and the history of the development of discretion within the immigration scheme are against these changes. By analyzing how discretion is employed in other, similar, public safety regimes, the authors show that the recent changes violate individual rights and will very likely create more intractable problems than those they set out …

Go to article

Birds Of A Feather: Alliances And Influences On The Lamer Court 1990-1997, Peter Mccormick Apr 1998

Birds Of A Feather: Alliances And Influences On The Lamer Court 1990-1997, Peter Mccormick

Osgoode Hall Law Journal

The Supreme Court does not always speak with a single voice; for many decisions, there are judges who register disagreement with the majority's legal reasoning or even with the outcome. Are there identifiable fault lines dividing a persisting "majority" and "minority?" Are there one or more "swing vote" judges who allow the minority some share of the decisions of the Court? And, given that the coalitions are shifting rather than rigid, which pairings of judges most frequently (or most seldom) hold together through these shifts? This paper examines the divided panel decisions of the first seven years of the Lamer …

Go to article

Technocentrism In The Law School: Why The Gender And Colour Of Law Remain The Same, Margaret Thornton Apr 1998

Technocentrism In The Law School: Why The Gender And Colour Of Law Remain The Same, Margaret Thornton

Osgoode Hall Law Journal

Despite valiant endeavours by feminist, critical race, and Queer scholars to transform the legal culture, the transformative project has been limited because of the power of corporatism, a phenomenon deemed marginal to the currently fashionable micropolitical sites of critical scholarship. However, liberal, as well as postmodern scholarship, has largely preferred to ignore the ramifications of the "new economy," which includes a marked political shift to the right, the contraction of the public sphere, the privatization of public goods, globalization, and a preoccupation with efficiency, economic rationalism, and profits. I argue that technical reasoning, or "technocentrism," has enabled corporatism to evade …

Go to article

Reputation: A Vital Asset For Real Estate Practitioners, Trevor C. W. Farrow Feb 1998

Reputation: A Vital Asset For Real Estate Practitioners, Trevor C. W. Farrow

Articles & Book Chapters

This article describes the law of defamation, with advice to realtors on how to avoid defaming others.

Go to article

Potential Implications Of Future Wto Negotiations For North American Broadcasting Policies: An Overview, Gus Van Harten Jan 1998

Potential Implications Of Future Wto Negotiations For North American Broadcasting Policies: An Overview, Gus Van Harten

Commissioned Reports, Studies and Public Policy Documents

No abstract provided.

Go to article

International Law And International Relations Theory: A New Generation Of Interdisciplinary Scholarship, Anne-Marie Slaughter, Andrew S. Tulumello, Stepan Wood Jan 1998

International Law And International Relations Theory: A New Generation Of Interdisciplinary Scholarship, Anne-Marie Slaughter, Andrew S. Tulumello, Stepan Wood

Articles & Book Chapters

Nine years ago, Kenneth Abbott published an article exhorting international lawyers to read and master regime theory, arguing that it had multiple uses for the study of international law.1 He went as far as to call for a 'joint discipline" that would bridge the gap between international relations theory (IR) and international law (IL). Several years later, one of us followed suit with an article mapping the history of the two fields and setting forth an agenda for joint research. 2 Since then, political scientists and international lawyers have been reading and drawing on one another's work with increasing frequency …

Go to article

Valorizing The Subjunctive: The Unfortunate Judicial Contribution Of R. V. Carosella, Jim Smith, Richard Haigh Jan 1998

Valorizing The Subjunctive: The Unfortunate Judicial Contribution Of R. V. Carosella, Jim Smith, Richard Haigh

Articles & Book Chapters

Nick Carosella owes his freedom from conviction on gross indecency charges not to a single judge or jury, but to two entities whom he has never met. These two-the Supreme Court of Canada and the Windsor Sexual Assault Crisis Centre-have transformed a handful of written notes into an ambiguous extension of the concept of relevance. The latter organization, by destroying the complainant's counselling records, forced the former to revisit, via the Charter, 1 the relevance of such records. At the end of the day, the fates of Carosella and his alleged victim seem almost incidental to the Court's latest installment …

Go to article

One Step Forward, Two Steps Back : The Political And Institutional Dynamics Behind The Supreme Court Of Canada's Decisions In R. V. Sparrow, R V. Van Der Peet And Delgamuuku V. British Columbia, Jonathan Rudin Jan 1998

One Step Forward, Two Steps Back : The Political And Institutional Dynamics Behind The Supreme Court Of Canada's Decisions In R. V. Sparrow, R V. Van Der Peet And Delgamuuku V. British Columbia, Jonathan Rudin

Journal of Law and Social Policy

No abstract provided.

Go to article

High Tech Lending: Maintaining Priority In An Intangible World, Richard Haigh, Marc R. Mercier Jan 1998

High Tech Lending: Maintaining Priority In An Intangible World, Richard Haigh, Marc R. Mercier

Articles & Book Chapters

Financing intangible intellectual property in Canada presents some novel demands on lenders because of the interaction of provincial security schemes with federal intellectual property legislation. This article looks at the relative ease with which security interests in intangible property may be obtained under provincial personal property security regimes, and then at the various federal intellectual property statutes which exhibit more of a piecemeal approach to financing. In addition, a number of constitutional issues arise because of this jurisdictional split, and the article explores these issues, comparing the situation in Canada with that in the United States. The article suggests that …

Go to article

Defining Aboriginal Title In The 90'S: Has The Supreme Court Finally Got It Right?, Kent Mcneil Jan 1998

Defining Aboriginal Title In The 90'S: Has The Supreme Court Finally Got It Right?, Kent Mcneil

Books

The arrival of Europeans in North America had a profound impact on the Aboriginal peoples who had been living here for thousands of years. Virtually everything changed: unfamiliar diseases like smallpox ravished the population; the fur trade and European settlement and resource use decimated the wildlife; new technology such as firearms altered Aboriginal economies and tribal relations; Christian evangelism affected spiritual beliefs and values; European imposition of sovereignty and governmental structures weakened, and in some cases replaced, Aboriginal forms of government; and so on. But more than anything else, the taking of Aboriginal lands by Europeans has probably had the …

Go to article

Book Review: From Crisis To Reform: A New Legal Aid Plan For Ontario, Mary Jane Mossman Jan 1998

Book Review: From Crisis To Reform: A New Legal Aid Plan For Ontario, Mary Jane Mossman

Articles & Book Chapters

This is a review of From Crisis to Reform: A New Legal Aid Plan for Ontario, a report funded by the Donner Canadian Foundation.

Go to article

Independence After Matsqui?, Richard Haigh, Jim Smith Jan 1998

Independence After Matsqui?, Richard Haigh, Jim Smith

Articles & Book Chapters

The authors look at the Supreme Court's latest fully reasoned decision on independence in Canadian Pacific v. Matsqui, where native tribunals were found to be biased because of certain institutional characteristics. The authors argue that the court employs, on the one hand, a very simplified analysis of independence, but at the same time, sets standards for testing independence and bias in tribunals that are impossible to adequately quantify in practice. Neither the reasoning of Lamer C.J, nor Sopinka J. is adequate to address the full range of tribunal experience; in fact, the Supreme Court examines administrative tribunals as if they …

Go to article

"Pro-Life" Absolutes, Feminist Challenges: The Fundamentalist Narrative Of Irish Abortion Law 1986-1992, Ruth Fletcher Jan 1998

"Pro-Life" Absolutes, Feminist Challenges: The Fundamentalist Narrative Of Irish Abortion Law 1986-1992, Ruth Fletcher

Osgoode Hall Law Journal

This article asks how Irish abortion law developed to the point of stopping a young pregnant rape victim from travelling abroad to have an abortion in 1992 (Attorney General v. X.). The author argues that this case, which ultimately saw the Irish Supreme Court overturn that decision and recognize the young woman's right to abortion, was the last chapter of the fundamentalist narrative of Irish abortion law. The feminist critique of that law needs to consider its particular fundamentalist aspects in order to clarify the obstacles posed to the struggle for Irish women's reproductive freedom. The author argues that a …

Go to article

A Bill Of Rights For The United Kingdom: From London To Strasbourg By The Northwest Passage?, Stephen Sedley Jan 1998

A Bill Of Rights For The United Kingdom: From London To Strasbourg By The Northwest Passage?, Stephen Sedley

Osgoode Hall Law Journal

In anticipation of the United Kingdom's patriation of the European Convention on Human Rights, the author explores the possible impact that a Bill of Rights will have on the U.K. system of justice from a European and U.K. perspective. The author argues that, from a European perspective, the U.K. has an established history of yielding to supra-national law given its membership in the European Union. However, from a U.K. perspective, this will present new challenges, as the constitutionality of domestic legislation is subject to increased judicial scrutiny in ensuring conformance with European Convention obligations. The author argues that the pressures …

Go to article

R. V. Oakes 1986-1997: Back To The Drawing Board, Leon E. Trakman, William Cole-Hamilton, Sean Gatien Jan 1998

R. V. Oakes 1986-1997: Back To The Drawing Board, Leon E. Trakman, William Cole-Hamilton, Sean Gatien

Osgoode Hall Law Journal

The Supreme Court of Canada, in R. v. Oakes, identified two standards of justification in applying section 1. The first standard was normative. The second was methodological, called the Oakes test. The Court, until recently, applied the Oakes test mechanically and avoided the normative standard. More recently, in Egan v. Canada and RJR-MacDonald Inc. v. Canada (A.G.), it resorted to a normative analysis that is indeterminate and unpredictable. This article challenges both the mechanical application of the Oakes test and the Court's new normative approach. It proposes, and illustrates, a preferable alternative that is both determinate and predictable. It is …

Go to article

Retribution Revisited: A Reconsideration Of Feminist Criminal Law Reform Strategies, Dianne L. Martin Jan 1998

Retribution Revisited: A Reconsideration Of Feminist Criminal Law Reform Strategies, Dianne L. Martin

Osgoode Hall Law Journal

Were the last 30 years of feminist law reform activity around criminal justice misdirected? Or, if not misdirected, have the efforts been appropriated and manipulated by the New Right? This commentary reflects on this history, and on the failures of the retributive justice project generally, and argues for a reexamination of both. The discussion focuses on the tactics of the New Right and on the retributive goals of some victims' rights organizations as a means of highlighting the unintended consequences of key feminist initiatives around violence against women. Finally, the commentary identifies alternatives to retribution and a need for careful …

Go to article