Law Commons^™

Someone Out There Helping – Final Report Of The Wellcoms Mobile Van Project, Ab Currie

Canadian Forum on Civil Justice

In May 2019 the Legal Clinic of Guelph and Wellington County (the Guelph clinic) implemented a project to enhance legal services in rural Wellington County using a mobile service called the WellCoMs van (the van). The project addressed a long-standing need that had been recognized by the Guelph clinic since its establishment in 2002 to provide a good level of service to rural Wellington County.

Improving Access To Justice: Do Contingency Fees Really Work?, Allan C. Hutchinson

Articles & Book Chapters

While not touted as a universal panacea for access problems, contingency fees have received general praise as an important and justice-improving initiative. By back-loading the payment of legal fees, the assumption is that the interests of clients and litigants will be better served. I challenge that received wisdom. While the rise of contingency fee agreements between lawyers and clients has increased the number of people who can afford lawyers and make successful claims, the more challenging issue is whether that increase is being achieved at too high a price to clients and litigants – while more people are able to …

Presumptive Deference And The Role Of Expertise On Questions Of Law In Canadian Administrative Law, Cheryl Laura Bowman

LLM Theses

Administrators in Canada are presumptively accorded deference on questions of law. This deference is grounded largely in expertise, a pragmatic justification for deference. This thesis examines the relationship of expertise to other practical justifications for deference and to legislative intent. This thesis questions (i) whether assumptions about administrative expertise are grounded in administrative realities; (ii) whether deference to expertise has a meaningful nexus with legislative intent; and (iii) whether heavy reliance on expertise leaves meaningful room for judicial review on questions of law within reasonableness. I conclude that the doctrine of deference relies too heavily on presumptions about the expertise …

The Nigerian Niger Delta And The Invisible Hand Of Tremf: Exploring The (Im)Possibility Of Socio-Economic Justice Under The Un 'Ruggie' Guiding Principles, Ikenna Emmanuel Aniekwe

LLM Theses

The Nigerian Niger Delta region which is home to Nigeria’s large crude oil reserves, has grappled with many problems since the inception of crude oil explorations in the area over six decades ago. From environmental degradations to flagrant violation of human rights, the pitfalls of the exploration activities have hugely undermined the socio-economic wellbeing of the people and thereby causing them socio-economic injustice. This thesis tested how, and found that, the protracted socio-economic problems in the Niger Delta exemplifies Upendra Baxi’s germinal theory on the emergence (and now prevalence) of a trade-related and market-friendly (TREMF) paradigm that supplants human rights …

Narrowing The Gap Between Tax Law And Accounting, Humayun Rashid Chaudhary

PhD Dissertations

Accounting income and taxable income are both designed to capture the economic activities of an entity based on their own rules and assumptions. Despite all the differences in reporting objectives and measurement methods, accounting income forms the starting point for determining taxable income. This suggests that much of accountants use of consistency and matching principles flows through to the legal measure of taxable income. This thesis argues that the principles in some select areas of financial reporting can be sanctioned more explicitly and enacted into the Income Tax Act (ITA) in determining the taxable income of corporations. It also recommends …

If You Love Something, Set It Free? Open Content Copyright Licensing And Creative Cultural Expression, Giuseppe Roberto Tarantino

PhD Dissertations

This dissertation seeks an answer to the question of when open content copyright licences can be most productively used to facilitate the creation and dissemination of cultural expression. Conventional copyright licences emphasize control and the policing of infringing activity. By identifying the circumstances in which open, permissive, and simple-to-understand copyright licensing models can successfully be employed, this dissertation provides a heuristic that articulates when open content licensing can be used to help foster creativity, dialogic collaboration and iterative cultural expression. Using communicative copyright, an account inspired by the relational author approach of Carys Craig, as a theoretical framework, this dissertation …

Attracting Foreign Investments For Green Energy Projects In Sub-Saharan Africa: Climate Change Policy & Innovation In International Legal Compliance, Leslyn Ann Lewis

PhD Dissertations

Sub-Saharan Africa must confront the dual problem of development coupled with the complexities surrounding climate change. The regions stagnated growth has been historically attributed to many factors, but the predominant thought from an international law perspective is that if the region modernizes its legal and regulatory structures this will engender the confidence of foreign investors. With this acknowledgement came the demand on developing nations to modernize local legal and regulatory systems initially focusing on globally harmonized intellectual property rights and then more recently their energy regulatory infrastructures and processes to attract foreign investments. Several international organizations and institutions including the …

The Right To Support: Severely Disabled Children & Their Mothers, Sheila Kathleen Jennings

PhD Dissertations

The author examines how severely disabled children and their mothers, who are usually their primary caregivers, are treated by Canadian law and policy. She identifies and analyzes deficiencies in care and other supports the state makes available to them. She further provides an analysis of the role of the state as it increasingly privatizes responsibility for supports, including unpredictable and often complex forms of care, situating them in practice, with mothers. Caregiving mothers are required to provide what comprises maternally complex care, which may be medical, neurological or psychiatric in nature. Within complex care, visible and hidden costs have been …

Replaying The Past: Roles For Emotion In Judicial Invocations Of Legislative History, And Precedent, Emily Kidd White

Articles & Book Chapters

Legal reasoning in the common law tradition requires judges to draw on concepts, and examples that are meant to resonate with a particular emotional import and operate in judicial reasoning as though they do. Judicial applications of constitutional rights are regularly interpreted by reference to past violations (either through precedent, contextual framings, and/or legislative history), which in turn elicit a series of emotions which work to deepen and intensify judicial understandings of a right guarantee (freedom of association, freedom of expression, equality, security of the person, etc.). This paper examines the way in which invocations of past political histories, and …

Discarding Old Prejudices: Judicial Precedent And Aboriginal Title, Kent Mcneil

Conference Papers

This talk on judicial precedent and Aboriginal title combines legal history and current law. The legal history is important because it informs the current law. It also reveals the racism in Canadian law that retarded the development of the concept of Aboriginal title until the 1970s.

My discussion of the early case law focuses on St. Catherine’s Milling and Lumber Co. v. The Queen, decided by the Privy Council in 1888. It was the leading judicial precedent on the source and content of Aboriginal title right up to the Supreme Court of Canada’s 1973 decision in Calder v. Attorney …

Indigenous And Crown Sovereignty In Canada, Kent Mcneil

All Papers

Peter Russell, a prominent Canadian political scientist, tells of the time he met with Dene leaders on his first visit to the Northwest Territories in 1974. A Dene woman opened the discussion by asking: “Professor Russell, I have two questions for you: What is sovereignty? And how did the Queen get it over us?” Years later, he described his response: “For the first question, I had a nice, pat answer based on Bodin, Hobbes, and my understanding of European international law. But I stumbled over the second. The truth of the matter is that I didn’t have a clue how …

Trial Advocacy - Student Materials, Rachel Grinberg, Jonathan Rosenthal

Osgoode Course Casebooks

Course code: 5270.4

Commercial Law: Secured Transactions Statutory And Supplementary Materials: 2019-20, Benjamin Geva

Osgoode Course Casebooks

Course code: 2030.4

Securities Regulation, Dale H. Lastman

Osgoode Course Casebooks

Course code: 2620.3

Contracts (Supplementary Cases): 2019-20, Robert E. Forbes

Osgoode Course Casebooks

Course code: 1010.4

Return On Investment In Access To Justice – Infographic, Canadian Forum On Civil Justice

Canadian Forum on Civil Justice

N/A

Conflict Of Laws, Janet Walker

Articles & Book Chapters

In our highly interconnected world, questions about court jurisdiction, the enforcement of judgments, and applicable law now arise in every field of endeavour and every walk of life. Accordingly, just as with other members of the public, so too can members of the LGBTQ2+ community expect to be affected directly and indirectly by developments in the conflict of laws. However, there are some implications of the conflict of laws that have special significance for members of the LGBTQ2+ community in connection with personal status and family relations. This chapter focuses on the issues arising in these areas.

This chapter considers …

Becoming And Building Community In Toronto: 1980 To Present, Bernadette Thomas

Journal of Law and Social Policy

I left Grenada in December of 1980 to visit Canada. Like many other Caribbean immigrants, when I first came up to Canada I was shocked by the cold and unsure of what my life would look like. Forty years later, I look back at the life I’ve built in Canada and see how my community experiences led me to be a community leader.

This is my story, but it is the story of many others as well. I reflect here on the role of women as leaders, the difficult conditions for immigrants, the history of domestic work, and on housing …

“All Arabs Are Liars”: Arab And Muslim Stereotypes In Canadian Human Rights Law, Reem Bahdi

Journal of Law and Social Policy

Stereotypes exclude, stigmatize, and burden Arabs and Muslims in Canada. This article examines three prevailing Arab and Muslim stereotypes: the conviction that Arabs and Muslims have a culturally ordained propensity towards violence; the belief that, regardless of their citizenship status, Arabs and Muslims remain foreigners who threaten Western values and; the notion that Arabs and Muslims are dishonest. The analysis rests on the facts found and conclusions reached in nine claims filed by Arab or Muslim applicants before the British Columbia, Ontario, Quebec or Canadian human rights tribunals. The tribunal decisions reveal that the terrorist profile requires the other two …

How Affirmative Action Context Shapes Collegiate Outcomes At America’S Selective Colleges And Universities, Amy Lutz, Pamela R. Bennett, Rebecca Wang

Journal of Law and Social Policy

During the 1990s and early 2000s, the affirmative action context in the United States changed. Affirmative action in higher education was banned in several states, and the Supreme Court ruled in Grutter (2003) that affirmative action, while constitutional, should be implemented via holistic evaluation of applicants. In this article, we use two datasets to examine how affirmative action context relates to academic outcomes at selective colleges and universities in the United States before and after the Grutter decision and in states with and without bans on affirmative action. Underrepresented minority students earned higher grades in the period after the Grutter …

Measuring Correctional Admissions Of Aboriginal Offenders In Canada: A Relative Inter-Jurisdictional Analysis, Andrew A. Reid

Journal of Law and Social Policy

It is widely recognized that Aboriginal peoples are overrepresented in Canada’s criminal justice system. A review of recent statistics documenting the extent of overrepresentation in Canada’s sentenced custody population, prompted the Truth and Reconciliation Commission to call upon federal, provincial, and territorial governments to take action. In anticipation of advancement toward the Commission’s “Calls to Action”, it is important to have comprehensive baseline information to which progress may be measured against in the future. Aside from basic statistics that document over-incarceration, however, little research has explored patterns of representation among Aboriginal offenders in other segments of the correctional system. Nevertheless, …

State Redress As Public Policy: A Two-Sided Coin, Stephen Winter

Journal of Law and Social Policy

Monetary redress programs that respond to injuries suffered by survivors of out-of-home care are increasingly common and very expensive. This article’s distinctive contribution is to approach these redress programs as a form of social policy. Both survivors and states have interests in the operation of redress programs. Some of those interests are mutually compatible, but there are obvious conflicts as well. The article concludes by advocating a strategy for resolving an illustrative conflict.

Racism And Relief Distribution In The Aftermath Of The Halifax Explosion, Mark Culligan, Katrin Macphee

Journal of Law and Social Policy

Popular and academic histories have romanticized the Halifax Explosion. In most retellings, the Explosion united Haligonians, in suffering and in reconstruction. This article presents evidence from the Halifax Relief Commission’s Records that points to a different conclusion: African Nova Scotia claimants were discriminated against during Relief distribution efforts and pre-existing racial inequalities were reinforced. Relief workers treated the claims of African Nova Scotians with enhanced skepticism, expended minimal effort to locate those with claims, and ultimately provided less by way of compensation. Moreover, the decision of the Relief Commission to prioritize the compensation of lost property, not lost wages, systemically …

Book Review: Adultery: Infidelity And The Law, By Deborah L. Rhode, Hana Bell

Osgoode Hall Law Journal

Despite being against the actual act of adultery, Deborah Rhode, the Ernest W McFarland Professor of Law and Director of the Center on the Legal Profession at Stanford University, makes a shockingly compelling argument for abolishing all laws that criminalize adultery in America. Rhode has written the first book of its kind—“the first comprehensive account of adultery and its legal consequences in the United States.” Weaving through various scenarios in which pro-adultery law arguments might be made, Rhode concludes that “laws governing adultery have grown more anachronistic.” Upon navigating the first few pages of Rhode’s book, one may prematurely dismiss …

Book Review: Paradigms Of International Human Rights, By Aaron Xavier Fellmeth, Eric Freeman

Osgoode Hall Law Journal

Aaron Xavier Fellmeth's Paradigms of International Human Rights Law makes an important contribution to the scholarship on international human rights law (IHRL). In the introduction, Fellmeth begins by noting that previous scholarly literature on IHRL has often focused on the content and enforceability of human rights, but that the broader structure and framing of human rights has been undertheorized. With that in mind, Fellmeth identifies that the first purpose of his book “is to begin a structural critique of some of [the] systemic features of IHRL.” The second purpose is “to make some progress in bridging moral theory with legal …

Introduction To Ohlj Special Issue: Reforming Defamation Law In The Age Of The Internet, Sue Gratton

Osgoode Hall Law Journal

The Law Commission of Ontario (LCO) is proud to introduce this special issue of the Osgoode Hall Law Journal, featuring papers inspired by the LCO’s law reform project, Defamation Law in the Internet Age, and the international conference held as part of the project, Defamation Law and the Internet: Where Do We Go From Here? The LCO is Ontario’s leading law reform agency, with a mandate to promote law reform, advance access to justice, and stimulate public debate. In its multi-year defamation law project, the LCO is reconsidering the purpose and function of defamation law in light of transformative technological …

Ohlj Special Issue: Reforming Defamation Law In The Age Of The Internet, Jamie Cameron

Osgoode Hall Law Journal

Even as technology transforms the world of communication—as it has over the course of history—defamation law remains strangely impervious to change. True enough, the law has evolved over time, indeed centuries, but seems as beholden as ever to an archaic muddle of backwater rules and concepts. It is disappointing, for instance, that the law arguably worsened after the Supreme Court of Canada considered the status of defamation under s.2(b) of the Charter of Rights and Freedoms, which guarantees expressive freedom. Doctrinal corrections were slow and even then served in the main to bring Canada abreast of jurisprudential developments in Commonwealth …

Re-Imagining Resolution Of Online Defamation Disputes, Emily B. Laidlaw

Osgoode Hall Law Journal

If an individual or company is defamed online, they have two options to resolve the dispute, absent a technical solution. They can complain to an intermediary or launch a civil action. Both are deficient for a variety of reasons. Civil litigation is often unsuitable given the nature of online communications (across different platforms, jurisdictions, involving multiple parties, and spread with ease), the length and cost of litigation, and the ineffectiveness of traditional remedies. Intermediary dispute resolution processes can sometimes be effective, but lack industry standards and due process, place intermediaries in pseudo-judicial roles, and depend on the changeable commitments of …

Where Do We Go From Here? Reflections On The Lco’S Consultation And Conference, Daithí Mac Síthigh

Osgoode Hall Law Journal

This is a report on the Law Commission of Ontario’s one-day conference on defamation law and the Internet by the conference rapporteur. After reviewing the topical nature of the event (including its relationship with debate on defamation law in Ontario and elsewhere), this article discusses the position of defamation in a wider legal landscape. Points include the relationship between defamation and privacy, the impact of data protection, and the appropriateness of procedures. Then, the impact of technological change is assessed, referring to the liability of intermediaries, the enforcement of decisions, and the degree to which online communication can support a …

Internet Intermediary Liability In Defamation, Emily B. Laidlaw, Hilary Young

Osgoode Hall Law Journal

Given the broad meaning of publication in defamation law, internet intermediaries such as internet service providers, search engines, and social media companies may be liable for defamatory content posted by third parties. This article argues that current law is not suitable to dealing with issues of internet defamation and intermediary responsibility because it is needlessly complex, confusing, and may impose liability without blameworthiness. Instead, the article proposes that publication be redefined to require a deliberate act of communicating specific words. This would better reflect blameworthiness and few intermediaries would be liable in defamation under this test. That said, intermediaries profit …