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 …

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 …

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

Canadian Forum on Civil Justice

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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 …

Building Community Connections: The Second Interim Report Of The Wellcoms Mobile Van Project, Ab Currie

Canadian Forum on Civil Justice

The WellCoMs mobile legal services van is a project being carried out by the Legal Clinic of Guelph and Wellington County to increase the level of service to rural areas of the county. The project is being funded by the Law Foundation of Ontario. This report comes at the end of the fourth month of a six-month project. It shows that the project has so far been highly successful in identifying unmet legal needs of people in the rural areas of Wellington County. At the end of October when street-side community visits by the van become problematic because of inclement …

Wellcoms Wellington County Mobile Legal Service – Infographic, Legal Clinic Of Guelph And Wellington County

Canadian Forum on Civil Justice

N/A

The Wellcoms Mobile Van Project: Building Paths To Justice In Rural Wellington County – First Interim Report, Ab Currie

Canadian Forum on Civil Justice

Since opening in 2002 the Legal Clinic of Guelph and Wellington County has found providing service to the rural part of Wellington County a challenge. Rural Wellington County encompasses approximately 2,657 square kilometers. There are several small communities spread throughout the County. Driving times between Guelph and some communities are 45 minutes to an hour. Public transportation between the small towns in rural Wellington County and the city of Guelph is poor or non-existent.

Return On Investment In Civil Justice Services And Programs – Selected Annotated Bibliography Of Existing Research, Lisa Moore, Megan Phyper

Canadian Forum on Civil Justice

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Investing In Justice: A Literature Review In Support Of The Case For Improved Access, Lisa Moore, Trevor C. W. Farrow

Canadian Forum on Civil Justice

The focus of this report is return on investment (ROI) and social return on investment (SROI) research in justice. There is a growing access to justice crisis around the world. Notwithstanding the prevalence of legal problems in everyday life, people do not have adequate access to the justice information, resources and mechanisms that they need to navigate the complexities of law. This gap in access to justice negatively impacts everyone. It also comes with significant costs – to individuals and societies. Complicating this global crisis is a lack of understanding of the nature, extent, costs and potential solutions of and …

Investing In Justice: A Literature Review In Support Of The Case For Improved Access, Lisa Moore, Trevor C. W. Farrow

Commissioned Reports, Studies and Public Policy Documents

The focus of this report is return on investment (ROI) and social return on investment (SROI) research in justice.

There is a growing access to justice crisis around the world. Notwithstanding the prevalence of legal problems in everyday life, people do not have adequate access to the justice information, resources and mechanisms that they need to navigate the complexities of law. This gap in access to justice negatively impacts everyone. It also comes with significant costs – to individuals and societies.

Complicating this global crisis is a lack of understanding of the nature, extent, costs and potential solutions of and …

Including Indigenous Knowledge Systems In Environmental Assessments: Restructuring The Process, Rachel Arsenault, Carrie Bourassa, Sibyl Diver, Deborah Mcgregor, Aaron Witham

Articles & Book Chapters

Indigenous peoples around the world are concerned about the long-term impacts of industrial activities and natural resource extraction projects on their traditional territories. Environmental impact studies, environmental risk assessments (EAs), and risk management protocols are offered as tools that can address some of these concerns. However, these tools are not universally required in jurisdictions, and this Forum intervention considers whether these technical tools might be reshaped to integrate Indigenous communities’ interests, with specific attention to traditional knowledge. Challenges include unrealistic timelines to evaluate proposed projects, community capacity, inadequate understanding of Indigenous communities, and ineffective communicatio, all of which contribute to …

Wage Boards For The 21st Century: Revisiting Sectoral Standard-Setting Mechanisms For The Workplace, Sara Slinn

Conference Papers

As existing labour relations and minimum standards regulatory systems have continued to struggle to ensure acceptable worker voice and workplace standards, attention has increasingly turned to whether broader-based or sectoral approaches can offer solutions. Broader-based or sectoral approaches can be understood as falling into three categories of models: multi-employer, juridical extension, and sectoral standard-setting models. A key difference among these is that the first two categories involve not only collective representation of workers but also collective bargaining; the third model – sectoral standard-setting – involves a form of collective representation, but does not involve collective bargaining, which is characterized by …

Soutenir La Démocratie Élue De La Chambre Des Communes Et À La Fois La Conscience De Vote Des Sénateurs Non Élus, Craig Scott

Conference Papers

Le 22 octobre 2013, l'opposition officielle du NPD a proposé, dans une motion du jour de l’opposition, entamer un processus d'élimination de la partisannerie au Sénat qui commencerait par l'expulsion des sénateurs des caucus des partis. Les députés libéraux et conservateurs ont voté à l'unanimité contre la motion. Pendant le débat, le député Stéphane Dion (porte-parole du parti Libéral en matière de réforme démocratique) a soutenu avec brio que l'appartenance à un caucus de parti était aussi essentielle pour les sénateurs que pour les députés. Il les a décrits tous les deux – sans distinction – comme des parlementaires.

Reconciliation, Colonization, And Climate Futures, Deborah Mcgregor

Articles & Book Chapters

It is my argument that any climate change policy that is put forward internationally (Paris Climate Agreement), nationally (Pan-Canadian Framework on Clean Growth and Climate Change), or provincially (Ontario’s Climate Change Action Plan) must consider the rights and interests of Indigenous peoples as well as historical and ongoing processes of colonization. It is recognized, internationally and in Canada, that Indigenous peoples are more vulnerable to the impacts of climate change than other peoples due to distinct connections to the natural world.

Eligible Non-Participation In Canadian Social Welfare Programs, Stephanie Ben-Ishai, Jennifer Robson, Saul Schwartz

Articles & Book Chapters

To be effective in meeting their policy or political goals, social programs must reach the intended target groups. Many social programs, however, have low take-up rates. We examine three illustrative federal programs targeted to lower income Canadians and note that efforts by government agencies to serve all they intend to serve vary considerably. In this paper we discuss the sources of eligible non-participation and present estimates of its extent. We point out that the Canada Revenue Agency (CRA) plays a critical role in all three Canadian social welfare programs. We find that the legislative framework governing the CRA may be …

Beps And The Emerging Global Approach To Taxing Multinational Enterprises, Jinyan Li, Jin Bao, Huaning (Christina) Li

Conference Papers

The G20/OECD Base Erosion and Profit Shifting (BEPS) Project aimed at revising existing tax rules to align the taxation of profit with the location of economic activities and value creation (the “value creation principle”). It has received much commentary in literature and general debates and has been regarded as “the most significant re-write of the international tax rules in a century”, an opportunity to “rebuild a healthy scheme for allocating taxation rights”, having the potential to significantly alter the contours of the international tax regime, transforming the international tax regime, signaling a “new struggle over international taxation”, or representing the …

Time To Act: Response To Questions Posed By The Expert Panel On Sustainable Finance On Fiduciary Obligation And Effective Climate-Related Financial Disclosures, Cynthia Williams, Janis P. Sarra

Commissioned Reports, Studies and Public Policy Documents

The Expert Panel on Sustainable Finance has been commissioned by the Canadian Government to determine how best to generate sustainable finance, a significant challenge given the carbon intensity of Canada’s economy. The Expert Panel has defined sustainable finance as capital flows, risk management activities and financial processes that assimilate environmental and social factors as a means of promoting sustainable economic growth and the long-term stability of the financial system. While there are numerous strategies to be deployed to move Canada to a financially sustainable future, this report addresses two critically important issues: fiduciary obligation of corporate- and pension-fiduciaries, and national …

Environmental Justice And The Hesitant Embrace Of Human Rights, Dayna Nadine Scott

Articles & Book Chapters

This chapter explores some of the tensions inherent in employing ‘rights strategies’ in environmental justice movements. Using the example of a judicial review application brought by Indigenous environmental justice activists in Canada demonstrates the symbolic power of using rights-based language for environmental justice, but also underscores the serious procedural, logistical and resource barriers that frustrate these groups in their attempts to deploy litigation tactics. Legal scholars need to think critically about ‘rights-talk’ and confront the hard questions about its utility for advancing environmental justice. In working with communities, we must learn to listen to what communities want before we default …

An Empirical Comparison Of Insider Trading Enforcement In Canada And The United States, Anita Anand, Stephen J. Choi, Adam C. Pritchard, Poonam Puri

Articles & Book Chapters

Canadian and American securities market regulators have differing approaches to enforcement. In this article, we present the results of an empirical study comparing a highly salient aspect of securities enforcement—insider trading—in Canada and the United States. We reach a number of important findings. First, adjusting for trading volume, Canada has a greater intensity of enforcement when compared to the U.S. Second, Canadian securities regulators primarily concern themselves with insider trading in Canadian companies, while the SEC brings more enforcement actions involving insider trading in companies incorporated outside the U.S. Third, we do not find significant differences in the fraction of …

Myth, Inference And Evidence In Sexual Assault Trials, Lisa Dufraimont

Articles & Book Chapters

In sexual assault cases, the ability to distinguish myths and stereotypes from legitimate lines of reasoning continues to be a challenge for Canadian courts. The author argues that this challenge could be overcome by clearly identifying problematic inferences in sexual assault cases as prohibited lines of reasoning, while allowing the defence to bring forward evidence that is logically relevant to the material issues so long as it does not raise these prohibited inferences.

This paper advances that judges should take a broad view of relevance as an evidentiary approach in the adjudication of sexual assault cases. This approach allows for …

If There Can Only Be ‘One Law’, It Must Be Treaty Law. Learning From Kanawayandan D’Aaki, Dayna Nadine Scott, Andrée Boisselle

Articles & Book Chapters

The paper stems from a research collaboration with the Anishini community of Kitchenuhmaykoosib Inninuwug (KI), known as the people of Big Trout Lake in the far north of Ontario. In the face of renewed threats of encroachment by extractive industries onto their homelands, our research team visited the community on the invitation of leadership in 2017. The community was engaged in strategic planning and reflection on the work that they have done in recent years to articulate and record their own laws for the territory, and to gain recognition for those laws from settler governments. Between 2008 and 2018, …

Assessing Adler: The Weight Of Constitutional History And The Future Of Religious Freedom, Benjamin Berger

Articles & Book Chapters

This article approaches Adler v. Ontario as a distinctively useful perch from which to survey the history and future of the constitutional interaction of law and religion. The case is positioned at a provocative place in the arc of the development of this interaction and the article uses the reasons in Adler to expose and explore some themes that shape not only our religion jurisprudence, but Canadian constitutionalism more generally. The article begins by examining what the majority's heavy reliance on religion's place in constitutional history suggests about the competing logics at work in Canadian constitutional life. That discussion leads …

Supreme Court Of Canada Cases Strengthen Argument For Municipal Obligation To Discharge Duty To Consult: Time To Put Neskonlith To Rest, Angela D’Elia Decembrini, Shin Imai

Articles & Book Chapters

Can municipalities infringe Aboriginal or treaty rights without consulting the affected Indigenous group? In Neskonlith Indian Band v. Salmon Arm (City), the British Columbia Court of Appeal answered this question in the affirmative, finding that the city of Salmon Arm did not need to consult the Neskonlith First Nation about impacts from the construction of a shopping mall. In what was technically obiter dicta, the Court permitted the municipal project to proceed, and told the First Nation that its only recourse was to complain to the provincial government in a separate proceeding.

Phase 2 De L’Examen Du Mécanisme Rdie De La Cnudci: Pourquoi «Les Autres Questions» Ont Une Véritable Importance, Gus Van Harten, Jane Kelsey, David Schneiderman

All Papers

No abstract provided.

The Rule Of Law In International Tax Relations, Jinyan Li

All Papers

This paper discusses the issue of rule of law in international tax relations. International tax relations refer to the relationship between countries in terms of substantive tax laws and tax administration. It aims to contribute to the conversations about the Belt and Road Initiative (BRI) tax administration cooperation.

Non-State Community Virtual Currencies, Benjamin Geva, Dorit Geva

Articles & Book Chapters

Community currencies are means of payment issued other than by the State, for voluntary use side by side with State-issued (that is, national) currency, either in a particular geographical area or by a group of users. This chapter deals with them as their media have been transforming from paper to digital. Discussing legal aspects of digital community currencies as monetary objects, this chapter combines an analysis general to the law of community currencies, as applied to community currencies regardless of the media in which they are embodied, with an analysis of the general law governing digital currencies as applied to …

Value Creation: A Constant Principle In A Changing World Of International Taxation, Jinyan Li, Nathan Jin Bao, Huaning Li

Articles & Book Chapters

The authors consider the new nomenclature of value creation in terms of its meaning, theoretical basis, and importance in the context of the international taxation of business profits. The authors’ central claim is that the principle of value creation is a profound elaboration of the doctrine of economic allegiance, which is the theoretical basis for the current international tax system; and that international tax norms, such as the arm’s-length principle, are meant to give effect to the doctrine of economic allegiance (and now to the principle of value creation). As demonstrated by the Organisation for Economic Co-operation and Development/Group of …