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Articles 1 - 30 of 44
Full-Text Articles in Law
'In A Settled Country, Everyone Must Eat': Four Questions About Transnational Private Regulation, Migration, And Migrant Work, Amar Bhatia
Articles & Book Chapters
This introduction speaks to one of the questions raised by transnational private regulation: is migration always transnational? One quick answer to this question might be ‘no’. If migration is concerned with the international movement of people, then what has been called the approach of methodological nationalism would force out the ‘trans-‐’ and always substitute the international. Since methodological nationalism is an approach characterized by an overdue emphasis on states and their external borders as the sole arbiters for what registers as movement, then this answer would not surprise anyone. However, if we do not take a monopolistic approach to borders, …
"I Smooth'd Him Up With Fair Words": Intersocietal Law, From Fur Trade To Treaty, Janna Beth Promislow
"I Smooth'd Him Up With Fair Words": Intersocietal Law, From Fur Trade To Treaty, Janna Beth Promislow
PhD Dissertations
History is an essential part of aboriginal law. The two disciplines, however, may produce incompatible narratives of indigenous-settler relations. In addition, indigenous legal traditions and the fur trade in the old North West have been under-represented in Canadian legal history, a gap that demotes over two centuries of working relationships to a brief preface to the numbered treaties and confederation. This dissertation seeks to bring under-observed normative relations between indigenous and European traders into Canadian legal history. It further considers the relevance of fur trade law to the jurisprudence on aboriginal treaty rights and the significance of history in overcoming …
Issues Of Cost & Access In Canadian’S Social Investment: Lessons For The Civil Justice System, Sana Affara, Shamsuddin Ahmed, Sabreena Delhon, Lesley Jacobs
Issues Of Cost & Access In Canadian’S Social Investment: Lessons For The Civil Justice System, Sana Affara, Shamsuddin Ahmed, Sabreena Delhon, Lesley Jacobs
Canadian Forum on Civil Justice
Historically, the dominant discourse within the welfare state was one of redistribution and the paternalistic protection of citizens against social risks such as unemployment, illness, disability and retirement. Over the past few decades, changes in social policy have been introduced which are directed towards “social investment” and empowering citizens rather than protecting them. The social investment model focuses on investing public money and time in social programs such as housing, healthcare, employment insurance, child benefits and education with an eye to providing all citizens with opportunities that will enable them to take responsibility for themselves and their families. In practice, …
The Art Of Persuasion: International/Comparative Human Rights, The Supreme Court Of Canada And The Reconstitution Of The Canadian Security Certificate Regime, Graham Hudson
PhD Dissertations
In this dissertation, the author explores the jurisprudential foundations of the “relevant and persuasive” doctrine, which authorizes Canadian judges to rely on international and comparative human rights when interpreting the Charter of Rights and Freedoms. Viewed in its best light, this doctrine improves respect for human rights in two distinct ways: securing Canada’s compliance with its international human rights obligations and enhancing the responsiveness of state law to the global and multicultural context of Canadian society. However, actual jurisprudence suggests that the doctrine has helped undermine principles of respect for constitutional supremacy and respect for international law, in part because …
“Cost Of Justice” Project Plan: Working Draft, Canadian Forum On Civil Justice
“Cost Of Justice” Project Plan: Working Draft, Canadian Forum On Civil Justice
Canadian Forum on Civil Justice
No abstract provided.
Informe De La Comisión De Verdad, Honduras: La Voz Más Autorizada Es La De Las Víctimas, Elsie Monge Yoder, Luis Carlos Nieto García, Mirna Antonieta Perla Jiménez, Adolfo Pérez Esquivel, Nora Cortiñas, Craig M. Scott, François Houtart, Francisco José Aguilar, Helen Umaña, Fausto Milla
Informe De La Comisión De Verdad, Honduras: La Voz Más Autorizada Es La De Las Víctimas, Elsie Monge Yoder, Luis Carlos Nieto García, Mirna Antonieta Perla Jiménez, Adolfo Pérez Esquivel, Nora Cortiñas, Craig M. Scott, François Houtart, Francisco José Aguilar, Helen Umaña, Fausto Milla
Commissioned Reports, Studies and Public Policy Documents
No abstract provided.
Are Jurisprudential Debates Conceptual?: Some Lessons From Democratic Theory, Dan Priel
Are Jurisprudential Debates Conceptual?: Some Lessons From Democratic Theory, Dan Priel
Osgoode Hall Law Journal
The dominant view among legal philosophers is that jurisprudential debates about the nature of law are conceptual. In this article I challenge this view. I do so by comparing these debates to debates about the justification of democracy and showing that the arguments found in both are often very similar. I demonstrate that in both domains, there are arguments on one side that explain an institution (either law or democracy) in terms of its ability to help people lead a better life, and there are arguments on the other side that highlight the value of these institutions in promoting political …
Evaluating Federally Appointed Judges In Canada: Analyzing The Controversy, Troy Riddell, Lori Hausegger, Matthew Hennigar
Evaluating Federally Appointed Judges In Canada: Analyzing The Controversy, Troy Riddell, Lori Hausegger, Matthew Hennigar
Osgoode Hall Law Journal
This commentary describes our experiences in trying to undertake a judicial performance evaluation of federally appointed judges in Canada. Some respondents were enthusiastic about the project, but others were strongly opposed to it and worried about the effects that our survey would have on judicial independence. After describing the feedback that we received and the fallout from our project, we examine the relationship between judicial performance evaluation and judicial independence. We argue that a well-conceived judicial performance evaluation does not violate judicial independence. We then explore the resistance to judicial performance evaluation in Canada, using a comparative lens. The explanation …
The Unfortunate Triumph Of Form Over Substance In Canadian Administrative Law, Paul Daly
The Unfortunate Triumph Of Form Over Substance In Canadian Administrative Law, Paul Daly
Osgoode Hall Law Journal
The standard of review analysis for judicial review of administrative action developed by the Supreme Court of Canada before Dunsmuir v New Brunswick had two important features. First, it provided a bulwark against interventionist judges, thereby protecting the autonomy of administrative decision makers and promoting deference. Second, it was substantive, rather than formal, and moved the focus of judicial review away from abstract concepts and towards the eccentricities of statutory schemes. However, in its more recent forays into the general principles of judicial review, the Court has threatened to reverse its deferential and substantive course by following a formalistic, categorical …
A New Lens: Reframing The Conversation About The Use Of Video Conferencing In Civil Trials In Ontario, Amy Salyzyn
A New Lens: Reframing The Conversation About The Use Of Video Conferencing In Civil Trials In Ontario, Amy Salyzyn
Osgoode Hall Law Journal
The state of courtroom technology in Ontario is increasingly capturing the attention of both the public and the legal profession. This article seeks to contribute to the conversation on this issue by focusing on one particular technology in Ontario’s courtrooms: the use of video conferencing to receive witness testimony in civil trials. The central claim is that the approach to video conferencing that dominates the policy discourse reflects an overly narrow, instrumentalist view of technology that fails to adequately take account of possible broader political and social implications as well as this technology’s transformative potential. This argument is developed by …
Stop Vilifying Roma Refugees, Sean Rehaag, Benjamin L. Berger
Stop Vilifying Roma Refugees, Sean Rehaag, Benjamin L. Berger
Editorials and Commentaries
No abstract provided.
Issues Of Cost & Access In Canada’S Health Care System: Lessons For The Civil Justice System, Sabreena Delhon, Sana Affara, Lesley Jacobs, Tina Motavalli
Issues Of Cost & Access In Canada’S Health Care System: Lessons For The Civil Justice System, Sabreena Delhon, Sana Affara, Lesley Jacobs, Tina Motavalli
Canadian Forum on Civil Justice
There are numerous examples of rethinking costs in the Canadian health care system. Three of these provide us with a sense of why there might be useful lessons for the civil justice system.
Book Review: Who Owns The Moon?: Extraterrestrial Aspects Of Land And Mineral Resources Ownership, F. Tim Knight
Book Review: Who Owns The Moon?: Extraterrestrial Aspects Of Land And Mineral Resources Ownership, F. Tim Knight
Librarian Publications & Presentations
This is a review of Who Owns the Moon?: Extraterrestrial Aspects of Land and Mineral Resources Ownership by Virgiliu Pop (ISBN: 978-1-4020-9134-6)
Taking The Stand: Access To Justice For Witnesses With Mental Disabilities In Sexual Assault Cases, Janine Benedet, Isabel Grant
Taking The Stand: Access To Justice For Witnesses With Mental Disabilities In Sexual Assault Cases, Janine Benedet, Isabel Grant
Osgoode Hall Law Journal
In this article the authors argue that the existing adversarial trial process often prevents the stories of sexual assault complainants with mental disabilities from being heard in court. Relying on social science evidence, the authors argue that subjecting a woman with a mental disability to a rigorous cross-examination with repeated and leading questions, in a manner that is confrontational and often accusatory, is probably the worst way to get her story heard accurately in court. It is likely to unfairly undermine her credibility and to result in unjustified acquittals or in prosecutors deciding not to pursue a case. The article …
A Model Of Responsive Workplace Law, David J. Doorey
A Model Of Responsive Workplace Law, David J. Doorey
Osgoode Hall Law Journal
The North American model of workplace law is broken, characterized by declining frequency of collective bargaining, high levels of non-compliance with employment regulation, and political deadlock. This paper explores whether the theory of “decentred regulation” offers useful insights into the challenge of improving compliance with employment standards laws. It argues that the dominant political perspective on workplace regulation today is managerialist. Politicians with a managerialist orientation reject both the pluralist idea that collective bargaining is always preferred and the neoclassical view that it never is. Managerialists accept a role for employment regulation and unions, particularly in dealing with recalcitrant employers …
"Was It Something I Said?": Losing The Majority On The Modern Supreme Court Of Canada, 1984-2011, Peter J. Mccormick
"Was It Something I Said?": Losing The Majority On The Modern Supreme Court Of Canada, 1984-2011, Peter J. Mccormick
Osgoode Hall Law Journal
Appeal court judges do not just vote and run; they vote and then they explain, at length, why theirs is the most reasonable position. Since the core of explanation is persuasion, this means that between the initial conference vote and the final decision, some of the judges sometimes change their minds; and this in turn means that sometimes an initial majority becomes a minority and vice versa, something which often leaves clear footprints in the written record. This paper demonstrates that this happens more often than we might think—some 255 times for the last three Chief Justiceships, or roughly once …
Environmental Damages After The Federal Environmental Enforcement Act: Bringing Ecosystem Services To Canadian Environmental Law?, Martin Z. P. Olsynski
Environmental Damages After The Federal Environmental Enforcement Act: Bringing Ecosystem Services To Canadian Environmental Law?, Martin Z. P. Olsynski
Osgoode Hall Law Journal
The Canadian Environmental Enforcement Act [EEA] directs judges to consider actual environmental damage, or risk thereof, when setting fines for environmental offences. The EEA defi nes damage as including the loss of use and non-use values. While these terms are not unprecedented in Canadian environmental law, their use in environmental damage assessment is. Bearing in mind recent developments in environmental valuation in the United States and internationally, and considering the emergence of the “ecosystem services” paradigm in particular, this article explores the opportunities and challenges for ecosystem services based environmental damages assessment in the Canadian environmental sentencing context. The ecosystem …
Addressing The Tension Between Directors' Duties And Shareholder Rights - A Tale Of Two Regimes, Sean Vanderpol, Edward J. Waitzer
Addressing The Tension Between Directors' Duties And Shareholder Rights - A Tale Of Two Regimes, Sean Vanderpol, Edward J. Waitzer
Osgoode Hall Law Journal
There is a basic tension inherent in the regulation of corporations between the role to be played by boards and that to be played by shareholders. Boards have the statutory responsibility to manage the business and affairs of the corporation, and owe an express duty to act in the best interests of the corporation. Shareholders, however, are the ultimate ‘owners’ of the corporation, and have the ability to elect and remove directors. Canadian courts and securities regulators have long struggled with this tension in determining the roles to be played by each in transactions that pose the potential for conflicts …
Arbitrator Behaviour In Asymmetrical Adjudication: An Empirical Study Of Investment Treaty Arbitration, Gus Van Harten
Arbitrator Behaviour In Asymmetrical Adjudication: An Empirical Study Of Investment Treaty Arbitration, Gus Van Harten
Osgoode Hall Law Journal
The study examines arbitrator behaviour in the unique context of investment treaty arbitration. It employs the method of content analysis to test hypotheses of systemic bias in the resolution of jurisdictional issues in investment treaty law. Unlike earlier studies, the study examines trends in legal interpretation instead of case outcomes and finds statistically significant evidence that arbitrators favour: (1) the position of claimants over respondent states and (2) the position of claimants from major Western capital-exporting states over claimants from other states. There is a range of possible explanations for the results and further inferences are required to connect the …
Introduction - Reading Modern Law: Critical Methodologies And Sovereign Formations, Sundhya Pahuja, Ruth Buchanan, Stewart J. Motha
Introduction - Reading Modern Law: Critical Methodologies And Sovereign Formations, Sundhya Pahuja, Ruth Buchanan, Stewart J. Motha
Articles & Book Chapters
Reading Modern Law identifies and elaborates upon key critical methodologies for reading and writing about law in modernity. The force of law rests on determinate and localizable authorizations, as well as an expansive capacity to encompass what has not been pre-figured by an order of rules. The key question this dynamic of law raises is how legal forms might be deployed to confront and disrupt injustice. The urgency of this question must not eclipse the care its complexity demands. This book offers a critical methodology for addressing the many challenges thrown up by that question, whilst testifying to its complexity. …
Report Of The Court Processes Simplification Working Group, Action Committee On Access To Justice In Civil And Family Matters
Report Of The Court Processes Simplification Working Group, Action Committee On Access To Justice In Civil And Family Matters
Canadian Forum on Civil Justice
The public court process is of vital importance to Canada. It plays a central role in how citizens govern themselves and regulate their rights and relationships in modern democracies. For the system to be effective, it must operate in a way that is just, efficient and proportionate to the needs and resources of the citizens it is designed to serve. Further, the system must be accessible.
Report Of The Access To Legal Services Working Group, Action Committee On Access To Justice In Civil And Family Matters
Report Of The Access To Legal Services Working Group, Action Committee On Access To Justice In Civil And Family Matters
Canadian Forum on Civil Justice
This report provides an overview of the conclusions and recommendations of the Access to Legal Services Working Group (ALSWG). For the purposes of this report, the ALSWG defined legal services as: “services to assist people to deal with their legal problems”.
Family Justice Reform: A Review Of Reports And Initiatives, Action Committee On Access To Justice In Civil And Family Matters
Family Justice Reform: A Review Of Reports And Initiatives, Action Committee On Access To Justice In Civil And Family Matters
Canadian Forum on Civil Justice
The paper was prepared for the Family Justice Working Group of the Action Committee on Access to Justice in Civil and Family Matters to help guide its discussions on initiatives and innovations likely to have the greatest impact on access to justice. The paper reviews a host of papers and studies written over the last fifteen years on the state of the family justice system.
Undoing Historical Wrongs: Law And Indigeneity In India, Pooja Parmar
Undoing Historical Wrongs: Law And Indigeneity In India, Pooja Parmar
Osgoode Hall Law Journal
Beginning with a close look at a recent call by the Supreme Court of India to undo the historical injustices done to the "original inhabitants" of the country, this paper examines similar calls for justice made by Jaipal Singh Munda, the most vocal representative of Adivasis in the Constituent Assembly of India between December 1946 and January 1950, when both the possibilities and limitations of addressing past injustices were being written into the Constitution of India. While drawing attention to debates and disagreements over righting certain past wrongs that remain largely absent from historical accounts of the Constitution's drafting, this …
Spectacles Of Emancipation: Reading Rights Differently In India's Legal Discourse, Oishik Sircar
Spectacles Of Emancipation: Reading Rights Differently In India's Legal Discourse, Oishik Sircar
Osgoode Hall Law Journal
How does neo-liberalism change the way we understand rights, law, and justice? With postcolonial and post-liberalization India as its focal point, this article attempts to disrupt the linear, progressive equation that holds that more laws equals more rights equals more justice. This is an equation that has informed and been informed by fundamental rights jurisprudence and law reform, the enactment of legislation to guarantee socio-economic rights, and many of the strategies of social movement activism in contemporary India. This article argues that while these developments have indeed proliferated a public culture of rights, they have simultaneously been accompanied by the …
Imperial Agendas, Global Solidarities, And Third World Socio-Legal Studies: Methodological Reflections, Radha D'Souza
Imperial Agendas, Global Solidarities, And Third World Socio-Legal Studies: Methodological Reflections, Radha D'Souza
Osgoode Hall Law Journal
This article interrogates the methodological lenses through which law in the Third World is commonly analyzed in socio-legal studies. Third World socio-legal studies, this article argues, is a field in search of philosophical foundations. It continues to rely on conceptual categories and analytical frameworks developed through the intellectual, cultural, and social histories of Western capitalist societies, which it extends uncritically to different intersubjective orders in Third World contexts. The article examines the common grounds shared by two apparently competing discourses about law in the Third World, which I label imperial agendas and global solidarities. It is difficult to speak about …
The Peculiar Circumstances Of Eminent Domain In India, Priya S. Gupta
The Peculiar Circumstances Of Eminent Domain In India, Priya S. Gupta
Osgoode Hall Law Journal
The question of a constitutional property regime governing eminent domain gave rise to nuanced and principled debates in the Constituent Assembly of India, which drafted the Indian Constitution between 1947 and 1950, and in subsequent Parliamentary meetings regarding constitutional amendments. However, these extensive deliberations resulted in a clause that only addressed the most superficial aspects of property rights in India. Similarly, the statutory frameworks that govern state acquisition of land, in particular The Land Acquisition Act, 1894, provide only another part of the puzzle. This paper starts earlier in history-at the inception of eminent domain in India-in order to put …
Kenney Confuses On Permanent Residence Loss, Sean Rehaag, Audrey Macklin, Lorne Waldman
Kenney Confuses On Permanent Residence Loss, Sean Rehaag, Audrey Macklin, Lorne Waldman
Editorials and Commentaries
No abstract provided.
Addressing The Needs Of Self-Represented Litigants In The Canadian Justice System, Trevor C. W. Farrow, Diana Lowe, Bradley Albrecht, Heather Manweiller, Martha E. Simmons
Addressing The Needs Of Self-Represented Litigants In The Canadian Justice System, Trevor C. W. Farrow, Diana Lowe, Bradley Albrecht, Heather Manweiller, Martha E. Simmons
Canadian Forum on Civil Justice
How can the Canadian justice system better assist self-represented litigants (SRLs) with their legal needs? There is a service gap that exists in the Canadian justice system between what SRLs need and what is currently being provided. The system needs to better address how SRLs understand, avoid, manage and resolve their legal issues. While the entire justice system has a role to play in understanding and addressing this question, courts and court administrators in particular have a central role to play. Some important efforts have begun to address the needs of SRLs. However, major challenges persist in providing adequate court …
Issues Of Cost & Access In Canada’S Early Childhood Education System: Lessons For The Civil Justice System, Sabreena Delhon, Sana Affara, Lesley Jacobs, Raajkumar C. Kannan
Issues Of Cost & Access In Canada’S Early Childhood Education System: Lessons For The Civil Justice System, Sabreena Delhon, Sana Affara, Lesley Jacobs, Raajkumar C. Kannan
Canadian Forum on Civil Justice
In recent years in Canada, there has been growing appreciation that early childhood education (ECE) is a basic foundation for building a successful education system, competitive global economy, and a well functioning democracy. A policy of publicly funding ECE programming is, in other words, seen as a smart investment in the future. This new appreciation of ECE is evident from the fact that ECE is now integrated into our school system and early childhood educators are recognized as trained professionals, not mere childcare workers. ECE policies in Ontario are now a model of evidence-based decision-making. Early learning initiatives such as …