Law Commons^™

New Crossroads And The Opportunity For A Crisis: The State Of Canadian Legal Education, Catherine Dauvergne

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This article considers the challenges facing Canadian law schools and compares the current state of affairs to that analyzed in the 1983 Arthurs Report. The opening sections describe how Canadian legal education is globally unique because of the tacit agreement between law schools and the legal profession that limits the number of law school seats in Canada and helps ensure the success of law schools and law students. On the fortieth anniversary of the Arthurs Report, the article concludes that legal education in Canada is overdue for a new mapping of its strengths, challenges, and future directions that takes the …

Resurrecting 'She Asked For It': The Rough Sex Defence In Canadian Courts, Elizabeth Sheehy, Isabel Grant, Lise Gotell

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According to rape crisis centres and women’s shelters in Canada, the US and the UK, women are reporting extreme levels of violence by men who rape them, including strangulation—a particularly dangerous form of violence that is highly predictive of femicide. At the same time, accused men are deploying the “rough sex” defence when the victim—nearly always a woman—has suffered bodily harm or even death as a result of the accused’s actions. This defence is used to suggest that the woman enjoyed strangulation, bondage or other violence as part of “sex play”, inviting judges and jurors to find that she either …

Introduction To Volume I [Of The Canadian Law Of Obligations Iii Conference]: The Power And Limits Of Private Law, Marcus Moore, Samuel Beswick

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Private law issues touch the everyday experiences of individuals and businesses. Contracts, torts, trusts and other areas of private law and the law of obligations evolve with jurisprudential and statutory changes. The Power and Limits of Private Law is a timely compilation of papers developed from a conference on the subject at the University of British Columbia’s Green College in June of 2022. The contributors are eminent scholars in their respective fields and their commentaries and observations on developments in private law provide a useful reference for lawyers, judges, academics and students who confront private law issues in their work. …

Freedom Of Expression: Values And Harms, Camden Hutchison

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When considering restrictions on socially disfavoured expression, the Supreme Court of Canada has often considered the targeted expression’s “value.” In the seminal cases of Ford v. Quebec and Irwin Toy Ltd. v. Quebec, the Supreme Court articulated the importance of expressive freedom by relating it to three core values: (1) seeking and attaining the truth; (2) participation in democratic institutions; and (3) diversity in forms of individual selffulfillment. Subsequent cases considering restrictions on expression have evaluated the extent to which the targeted expression advances these values. Ironically, although Ford and Irwin Toy embraced a broad conception of expressive freedom, the …

Legislated Ableism: Bill C-7 And The Rapid Expansion Of Medical Assistance In Dying In Canada, Isabel Grant

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This paper explores the recent expansion of medical assistance in dying to disabled people who are suffering intolerably but are not at the end of their lives. The paper argues that it is impossible to separate suffering caused by an irremediable disability and suffering caused by the impacts of systemic ableism, which include high rates of poverty, social isolation and exclusion for people with disabilities. The paper suggests that this expansion raises constitutional issues under s. 15 and s. 7 of the Charter because it is premised on a view that portrays disability as potentially worse than death and thus …

The Legal Innovation Sandbox, Cristie Ford, Quinn Ashkenazy

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"The Legal Innovation Sandbox" examines a novel regulatory approach, called the innovation sandbox, in the context of the legal profession. The paper makes the claim that the “sandbox” regulatory model is in fact better suited to fostering innovation in the legal services arena than it is in the financial technology, or fintech, arena in which the sandbox concept developed. However, any effort to transplant a technique from one context to another needs to be carefully considered. This article is comparative across disciplines – financial regulation and legal services regulation – and across jurisdictions – covering the United Kingdom, the United …

The Flaws Of Magic Bullet Theory: Retraining Unconscionability To Discretely Target Different Contexts Of Unfairness In Contracts, Marcus Moore

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Unconscionability has long been a troublesome area in Canadian jurisprudence. This is of significant concern given unconscionability’s pre-eminence as a protection of contractual fairness. This article elaborates a much-needed reorganization and rationalization of unconscionability in Canada. Under current law, a single doctrine hopelessly targets two divergent purposes. I set out here a proposed redevelopment rather of separate common law doctrines, each fit-for-purpose: (1) An English-style unconscionable bargains doctrine for avoiding bargains that exploited disability, and (2) an American-style unconscionable clauses doctrine to control unfair terms in standard form contracts. Extensive Canadian precedent supports this solution, assuring its feasibility and legitimacy. …

Developments In Contract Law: The 2020-2021 Term – Appeals To Fairness, Marcus Moore

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This article analyzes important developments in Contract Law stemming from consideration by the Supreme Court of Canada in 2020-2021. Due to the large number of Contracts cases during this period, the article focuses on prominent appeals occupied with issues of fairness in Canadian Contract Law. Fairness in contracts emerges as an important concern of the SCC at this juncture. This appropriately reflects the constellation of some long-unsolved problems (e.g., control of unfair terms in standard form contracts), confusion around key concepts associated with protection of contractual fairness (e.g., unconscionability and good faith), and judicial disagreement over the merits of general …

Demystifying Implied Terms, Marcus Moore

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Recent years have witnessed significant interest in demystifying the implication of contract terms. Whilst the discussion thus far has elicited some answers, the subject remains notoriously ‘elusive'. This article advances discussion in the field. It argues that underlying recent debates are deeper issues that must be brought to the surface. These include theoretical incoherence regarding the nature/purpose of implication tracing back to The Moorcock (1889), and analytical indeterminacy in applying the established ‘tests' for implication, as courts vary between conflicting instrumental and non-instrumental approaches. Feeding both issues is inconsistent linguistic use of core terminology. This article helps demystify implication by …

Strategic Incentives For Pillar Two Adoption, Wei Cui

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International agreements on the taxation of multinationals emerged rapidly in the last two years, as exemplified by an EU directive on a global minimum tax (commonly known as “Pillar Two”) and other countries’ announcement to implement similar rules. According to a popular narrative, the speed of Pillar Two adoption may be partly attributable to certain enforcement mechanisms that elicit the participation even of those not sympathetic to Pillar Two’s stated goals. Such mechanisms, acting on nations’ self-interest, make Pillar Two “incentive compatible” and characterizes it with a “devilish logic.”

This Article examines this narrative by systematically analyzing strategic incentives for …

The Doctrine Of Contractual Absolution, Marcus Moore

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The absence of a knowledge requirement is a novel and astonishing feature of unconscionability in Canada, and one that calls for scholarly reflection. In other jurisdictions and formerly in Canada, unconscionability required that the benefiting party knew or at least should have known that its counterpart was impaired in the making of the contract. Such knowledge established a minimum level of wrongdoing, so that even without more active exploitation, it was unconscionable as an “unconscientious abuse of power.” But following the Supreme Court decision in Uber Technologies Inc. v. Heller (2020), Canadian contract law rejects this conventional approach. It does …

A Liberal Theory Of Property In Condominium, Douglas C. Harris

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The building engineer’s report on the low-rise condominium apartment building details the scope of work required. The roof is leaking, the elevator requires seismic upgrading, the windows and exterior siding are failing, and the heating system needs rebuilding. Although the owners of the individual apartments have been paying monthly fees in anticipation of these common property expenses, each owner faces a substantial special levy to cover the expected costs. The land developer’s offer to purchase the complex is eye-popping. Anticipating that the city will permit it to demolish the existing building and construct a high-rise condominium apartment tower on the …

Colonial Fault Lines: First Nations Autonomy And Indigenous Lands In The Time Of Covid-19, Alexandra Flynn, Signa Daum Shanks

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The COVID-19 crisis has exposed the political and economic fault lines in the exercise of power across multiple jurisdictions. This article focuses on the power of First Nations to make enforceable decisions in respect to reserve lands, specifically the powers First Nations have to enforce public health restrictions during the pandemic. We argue that Canadian law both enables First Nations to assert decisionmaking in respect to their lands, and undermines Indigenous authority in relation to enforcement and intergovernmental status. This paper is part of the SPE Theme on the Political Economy of COVID-19.

Concussion Safety Law Should Be Enacted In All Canadian Provinces And Territories, Marcus Moore, Charles H. Tator

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The concussion crisis in sports remains an important public health issue. Indeed, it is cited by 97% of Canadians as a major public health concern.

The Meaning Of Capacity And Consent In Sexual Assault: R. V. G.F., Isabel Grant, Janine Benedet

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The Criminal Code provisions dealing with sexual assault have been amended in a piecemeal fashion several times since the major reforms of 1982, which replaced the offences of rape and indecent assault with a three-tiered sexual assault offence. Many of these reforms were brought forward in response to particular judicial decisions that provoked controversy and concern. In most cases, new provisions were added without removing or amending related provisions already in place. What remains is a set of provisions that do not work together as a coherent whole.

The Evolution Of Life Sentences For Second-Degree Murder: Parole Ineligibility And Time Spent In Prison, Debra Parkes, Jane Sprott, Isabel Grant

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Canada's murder sentencing regime has been in effect since 1976, and yet very little data has examined what these sentences actually mean for those convicted. This paper begins to fill this gap by examining the meaning of a life sentence for those convicted of second degree murder in Canada. Using data provided by the Correctional Investigator, we examine both the parole ineligibility periods imposed by sentencing judges, and how long people are serving before a grant of full parole over time from 1977 to 2020. We found statistically significant increases over time in both judicial parole ineligibility periods, and in …

Submission The Ministry Of Justice On Human Rights Act Reform Consultation — Q16: Should The Proposal For Prospective Quashing Orders Be Extended To Proceedings Under The Proposed Bill Of Rights?, Samuel Beswick

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I oppose the proposal in Question 16 of the Human Rights Act Reform Consultation to extend prospective quashing orders to proceedings under human rights law. I express no view here on suspended quashing orders, although I would urge the Government to consider experiences and critiques of this doctrine in comparable common law jurisdictions such as Canada before enacting this novel reform.

I have previously expressed opposition to prospective quashing orders in my submissions to the Judicial Review Reform Consultation and the House of Commons General Committee on the Judicial Review and Courts Bill 152, as well as in a contribution …

The Public Law Paradoxes Of Climate Emergency Declarations, Jocelyn Stacey

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Climate emergency declarations occupy a legally-ambiguous space between emergency measure and political rhetoric. Their uncertain status in public law provides a unique opportunity to illuminate latent assumptions about emergencies and how they are regulated in law. This article analyzes climate emergency declarations in Canada, the United Kingdom, Australia and New Zealand. It argues that these climate emergency declarations reflect back a set of paradoxes about how emergencies are governed in law—paradoxes about defining the emergency, its relationship to time and who gets to respond to the emergency and how. These paradoxes productively complicate long-held and over-simplified assumptions about emergencies contained …

Condominium: A Transformative Innovation In Property And Local Government, Douglas C. Harris

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Condominium is a form of ownership that produces separate parcels of land and a structure of local government within multi-unit developments. As one form of common interest community, condominium packages private property with a co-ownership interest in common property and rights to participate in the governing organisation. A statutory innovation, the condominium form has been adopted in jurisdictions around the world and has quickly become the dominant form of land ownership for new-build housing in many cities. As an increasingly prominent feature of urban real estate, condominium is changing the nature of ownership and of local government, and is one …

Parks As Persons: Legal Innovation Or Colonial Appropriation?, Alexandra Flynn

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This Article, considers personhood, a mechanism that has been used in other jurisdictions — including cities — to legally reconfigure land ownership.Te Urewara, once a national park in New Zealand, the Atrato River in Colombia, and the Magpie and Fraser Rivers in Canada became legal “persons” after decades of advocacy by Indigenous Peoples. These natural resources now have rights, a new material and representational making of property that centres a governance role for Indigenous Peoples. This Article asks what personhood could mean for Stanley Park and for Canadian urban parks more broadly. In particular, it explores whether personhood is a …

Are Tents A 'Home'? Extending Section 8 Privacy Rights For The Precariously Housed, Sarah Ferencz, Alexandra Flynn, Nicholas Blomley, Marie-Eve Sylvestre

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The home, for most of us, is an obvious zone to assert privacy and property rights. However, this is not the case for those whose control of residential space is precarious. Our paper focuses on privacy rights under the Canadian constitution for those living in tents and, specifically, the judicial rejection of a tent as a home garnering legal protection under the Charter of Rights and Freedoms. We focus on a 2018 case from British Columbia, R. v. Picard, the only judicial decision that we could locate that has explored this question. In holding that the tent is …

What Is Scholarly Legal Writing? An Introduction To Different Perspectives (On Us Qualified Immunity Doctrine), Samuel Beswick

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How do you write a law article? It turns out there is no one ‘right way’. Legal problems can be analysed from different angles. Law journals are full of diverse perspectives on the law.

This document provides an introduction to the different types of legal scholarship that can be found in law journals. It illustrates using scholarship on the American judicial doctrine of qualified immunity, which shields government officials from legal liability for ‘constitutional torts’. Qualified immunity can be analysed from the perspective of doctrine, policy, comparative law, history, economics, empirics, sociology, and philosophy. One issue; many perspectives.

Reverse Vesting Orders – Developing Principles And Guardrails To Inform Judicial Decisions, Janis P. Sarra

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Reverse vesting orders (RVO) are a new tool being used by insolvency practitioners in Canada’s Companies’ Creditors Arrangement Act (CCAA) and other insolvency proceedings, where the debtor is not required to propose a restructuring plan and creditors are not permitted a vote on the going-forward strategy. The article starts from the premise that the court has authority to approve an RVO pursuant to sections 11 and 36 of the CCAA and the court’s general authority under the statute. However, it suggests that there must be exceptional circumstances for the court to be persuaded to bypass provisions of insolvency legislation aimed …

A Property Law Reader: Cases, Questions, And Commentary, 5th Ed., Preface And Table Of Contents, Douglas C. Harris, Jeremy De Beer, Tenille E. Brown, Patricia L. Farnese

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Nobody has been more influential over the past generation in the teaching of property law in Canada than Bruce Ziff. His Principles of Property Law is the foundational textbook on the subject. A Property Law Reader: Cases, Questions, and Commentary, which he first published as a sole author in 2004, has become, over three subsequent editions, the most widely used teaching material for property law in the country. Bruce retired from teaching property law in 2019. His retirement left major holes not only at the University of Alberta, where he taught for decades, but also throughout Canada in terms of …

Judicial Activism In Transnational Business And Human Rights Litigation, Hassan M. Ahmad

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This article explores a more expansive adjudicative role for domestic judiciaries in the U.S., U.K., and Canada in private law disputes that concern personal and environmental harm by multinational corporations that operate in the Global South. This expansive role may confront—although not necessarily upend—existing understandings around the separation of powers in common law jurisdictions. I canvass existing literature on judicial activism. Then, I detail legality gaps in the selected common law home states, which can be broken down into four categories: i) failed legislation; ii) deficient legislation; iii) judicial restraint; and iv) judicial deference.

I suggest three ways to actualize …

Controlling Fairness In Standard Form Contracts: What Can Courts Do, And What Should They Do?, Marcus Moore

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Unfair terms in standard form contracts are one of Contract Law's most notorious and enduring problems. The vast transnational literature on this, now a century old, has long worked out its contours, even as it still searches for more effective solutions. The central problem can be simply stated: A form drafter's ability to dictate terms-characteristically unknown and unbargained by the parties who are form recipients-allows, in the absence of any other legal control, for the incorporation of one-sided terms favouring the drafting party. The implications are significant: The exhaustive list of terms typical of such contracts, combined with the pervasiveness …

New Puzzles In International Tax Agreements, Wei Cui

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The G7’s “global minimum tax” accord—followed by a new version of the OECD’s “Two Pillar Solution” and its endorsement by the G20—is accepted by many as evidence for international tax cooperation. But recent policy discussions offer no answer to a basic question: What can countries cooperate to achieve? This Article shows that the answers provided by proponents of the new international tax agreement are alarmingly ad hoc, misleading, and incoherent. Scholarship on corporate taxation has also long failed to identify potentials for international cooperation. The more successful international agreements purport to be, therefore, the more puzzling they become. I …

What Does China Want From International Tax Reform?, Wei Cui

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In this article, the author examines China’s possible response to recent global efforts to reach consensus on international tax reform — particularly, a minimum corporate tax rate.

Will The New Global Tax Agreement Benefit The World?, Wei Cui

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The world has been abuzz lately with news of major global agreements within reach to reform international taxation. Countries in the G-7, G-20, and the even more impressive “Inclusive Framework”—a group of 139 countries convened by the Organization for Economic Cooperation and Development (OECD)—appear to be joining hands to end corporate tax competition and multinationals’ tax avoidance. Though many warn that the path to ultimate accord is arduous and depends on details, the declared goals of these efforts command broad public support.

Making Regulation Robust In The Innovation Era, Cristie Ford

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The next few years in regulatory history will be pivotal.

On one hand, we are witnessing renewed interest in robust state action in the economy and society. Battered by a poorly managed global pandemic and the undeniable persistence of racism and discrimination; terrified about the consequences of climate change; having suffered through years of political tumult and populist anger following a disastrous financial crisis; and having recognized once again that there is more to a person’s value than their economic productivity – it seems clear that over recent decades, public policy swung too far away from the humane, collective, and …