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2006

Osgoode Hall Law School of York University

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Articles 1 - 30 of 56

Full-Text Articles in Law

Into The Future: Civil Justice Reform In Canada, 1996 To 2006 And Beyond, Margaret A. Shone Dec 2006

Into The Future: Civil Justice Reform In Canada, 1996 To 2006 And Beyond, Margaret A. Shone

Canadian Forum on Civil Justice

The two-part Conference Into the Future: The Agenda for Civil Justice Reform is sponsored by the Canadian Forum on Civil Justice (the Forum), the Canadian Bar Association (CBA) the Association of Canadian Court Administrators (ACCA), and the Canadian Institute for the Administration of Justice (CIAJ). Part 1 of the Conference was held in in Montreal from April 30 to May 2, 2006. Part 2 of the Conference will be held in Toronto from December 7 to 8, 2006.

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Weather, Leather, And The Obligation To Disclose: Kerr V. Danier Leather Inc., Anita Anand, Mary Condon Oct 2006

Weather, Leather, And The Obligation To Disclose: Kerr V. Danier Leather Inc., Anita Anand, Mary Condon

Osgoode Hall Law Journal

Is an issuer legally obliged to update its prospectus if a material event occurs following the receipt for the prospectus but prior to the closing of the offering? This is the crucial issue that is addressed in Kerr v. Danier Leather Inc., a case that has been heard at the trial and appeal levels in Ontario and that will be heard in 2007 by the Supreme Court of Canada. In this commentary, we argue that the Court of Appeal decision in the case overlooked crucial aspects of contemporary securities law and policy in holding that there is no obligation to …

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Fragmenting Work And Fragmenting Organizations: The Contract Of Employment And The Scope Of Labour Regulation, Judy Fudge Oct 2006

Fragmenting Work And Fragmenting Organizations: The Contract Of Employment And The Scope Of Labour Regulation, Judy Fudge

Osgoode Hall Law Journal

This article diagnoses the conceptual and normative crisis of the scope of labour protection as resulting from the conception of employment as a personal and bilateral contract between an employee and a unitary employer that is characterized by the employee's subordination. It argues that the related fragmentation of organizations and fragmentation of work reveals the extent of the problem with this legal conceptualization of employment. The article offers an approach to reconceptualizing the scope of labour protection that is based on an understanding of personal work arrangements and enterprises as activities. It justifies this approach in terms of the goals …

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In The (Canadian) Shadow Of Islamic Law: Translating Mahr As A Bargaining Endowment, Pascale Fournier Oct 2006

In The (Canadian) Shadow Of Islamic Law: Translating Mahr As A Bargaining Endowment, Pascale Fournier

Osgoode Hall Law Journal

This article addresses the dilemmas of Muslim women living in Canada as they negotiate between the constitutional and juridical systems of the dominant society, on the one hand, and the Muslim community, on the other. It will examine the ideological assumptions about law and multiculturalism that have worked to depoliticize the stakes of law in Marion Boyd's report, Protecting Choice, Promoting Inclusion. With the Islamic institution of mahr in the background, this article suggests a methodology to evaluate the costs and benefits of abstract legal rules as they are actually used by the parties in the "shadow of the law" …

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Institutional Oversight Of Clinical Trials And The Drug Approval Process, Paul B. Miller Oct 2006

Institutional Oversight Of Clinical Trials And The Drug Approval Process, Paul B. Miller

Osgoode Hall Law Journal

The institutional and federal bodies responsible for regulatory review and oversight of clinical trials in Canada serve distinct yet complementary functions in ensuring that clinical trials provide scientifically rigorous and ethically sound evaluation of new therapeutic products. To date, academics and reformers alike have discussed reform priorities for federal and institutional review in isolation, as if their guiding purposes are distinct. This article identifies the overlapping objectives of federal and institutional review, argues for the importance of coordination of institutional and federal oversight structures, and identifies potential points of coordination.

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Balancing The Scales: Understanding Aboriginal Perspectives On Civil Justice, Mary Stratton Sep 2006

Balancing The Scales: Understanding Aboriginal Perspectives On Civil Justice, Mary Stratton

Canadian Forum on Civil Justice

As we visited each of the Civil Justice System and the Public research locations in Alberta, Nova Scotia, Ontario Quebec, Nunavut and British Columbia we contacted local Aboriginal organizations. We talked with Band Councils, Native Friendship Centres, Aboriginal legal aid programs, Native court workers, Aboriginal child welfare agencies and individuals involved in court cases. About 30 Aboriginal people took part in our key contact meetings and interviews that were transcribed and analysed to provide the first draft of this report. Some were members of a First Nation, some were Métis and others were Inuit. They lived on and off Reserves, …

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Statement Of Principles On Self-Represented Litigants And Accused Persons, Canadian Judicial Council Sep 2006

Statement Of Principles On Self-Represented Litigants And Accused Persons, Canadian Judicial Council

Canadian Forum on Civil Justice

N/A

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A Tenacious Fidelity To The Law, Susan G. Drummond Jul 2006

A Tenacious Fidelity To The Law, Susan G. Drummond

Editorials and Commentaries

No abstract provided.

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The Serendipitous Solution To The Problem Of Supreme Court Appointments, Peter Mccormick Jul 2006

The Serendipitous Solution To The Problem Of Supreme Court Appointments, Peter Mccormick

Osgoode Hall Law Journal

No abstract provided.

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Research Note: All But One: Solo Dissents On The Modern Supreme Court Of Canada, Christine M. Joseph Jul 2006

Research Note: All But One: Solo Dissents On The Modern Supreme Court Of Canada, Christine M. Joseph

Osgoode Hall Law Journal

It can be argued that the exercise of solo dissent on the Supreme Court of Canada is judicial disagreement at its apex-a single judge sitting on the highest court in the nation breaking away from his or her colleagues who have purportedly "gotten it wrong." By examining the practice of solo dissent in the Supreme Court of Canada over the last three decades, this research note provides insight into this unique form of judicial disagreement. Through construction of a typology of solo dissents, and by providing answers to important questions, such as how often judges render solo dissents and whether …

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Appointment Of Justice Marshall Rothstein To The Supreme Court Of Canada, Peter W. Hogg Jul 2006

Appointment Of Justice Marshall Rothstein To The Supreme Court Of Canada, Peter W. Hogg

Osgoode Hall Law Journal

Peter Hogg, a constitutional law scholar, was retained by the Commissioner for Federal Judicial Affairs to provide advice to the Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada as to its procedures. His account of the public hearing provides an insider's viewpoint of the historic process undertaken for the appointment of Justice Rothstein. His opening remarks to the committee, appended to this commentary, set out the parameters of questioning for the hearing, but raise additional questions with regard to the appropriate limits of judicial speech.

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Freedom Of The City: Canadian Cities And The Quest For Governmental Status, Ron Levi, Mariana Valverde Jul 2006

Freedom Of The City: Canadian Cities And The Quest For Governmental Status, Ron Levi, Mariana Valverde

Osgoode Hall Law Journal

Until recently, Canadian cities were limited to the legal powers explicitly prescribed by provinces (the U.S.-based Dillon's Rule). Despite much talk about a "new deal for cities," recent changes to municipal legislation do little to empower municipalities to define and govern local problems, although courts appear somewhat willing to expand the scope of cities' authority. Through two case studies involving the City of Toronto, we demonstrate that even after the overhaul of provincial municipal acts, cities still lack the necessary legal tools and the legal flexibility to respond to pressing urban needs.

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Harmonizing Unfair Commercial Practices Law: The Cultural And Social Dimensions, Thomas Wilhelmsson Jul 2006

Harmonizing Unfair Commercial Practices Law: The Cultural And Social Dimensions, Thomas Wilhelmsson

Osgoode Hall Law Journal

This article discusses, in light of the European experience concerning harmonization of unfair commercial practices law, the impact of social, cultural, and linguistic variations on the possibility of harmonizing or transplanting rules on commercial communications to consumers. Empirical research on national variations in consumers' responses to advertising and other marketing is used to create a typology of cases in which cultural factors should be taken into account when assessing a commercial practice from a consumer point of view. Differences between countries with regard to consumers' trust, understandings, rationality patterns, decision-making behaviour, values, and preferences are discussed as relevant cases. The …

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A New Era In The Selection Of Supreme Court Judges?, Jacob Ziegel Jul 2006

A New Era In The Selection Of Supreme Court Judges?, Jacob Ziegel

Osgoode Hall Law Journal

No abstract provided.

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Parliamentary Scrutiny Of Supreme Court Nominees: A View From The United Kingdom, Kate Malleson Jul 2006

Parliamentary Scrutiny Of Supreme Court Nominees: A View From The United Kingdom, Kate Malleson

Osgoode Hall Law Journal

No abstract provided.

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The South African Judicial Appointments Process, Penelope E. Andrews Jul 2006

The South African Judicial Appointments Process, Penelope E. Andrews

Osgoode Hall Law Journal

No abstract provided.

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Beyond The Headlines: The Role Of Print Media In Public Understanding Of The Civil Justice System, Diana Lowe, Naomi Schmold, Mary Stratton May 2006

Beyond The Headlines: The Role Of Print Media In Public Understanding Of The Civil Justice System, Diana Lowe, Naomi Schmold, Mary Stratton

Canadian Forum on Civil Justice

Various forms of mass media are generally considered to be significant sources of all kinds of public information. Discussions concerning public understanding of and access to the justice system frequently contend that print and broadcast media play a particularly important role in formulating public understanding and opinion of Canadian courts. In the first part of this paper we discuss perceptions about the role of print media in reporting on civil justice issues from the perspectives of the justice community, the media, and the public. We recognise, however, that there is little research about the quantity or quality of media coverage …

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Personal Reflections On Adr Reforms, David D. Tavender May 2006

Personal Reflections On Adr Reforms, David D. Tavender

Canadian Forum on Civil Justice

In our August 1996 Task Force on Systems of Civil Justice report to the Canadian Bar Association one of our primary recommendations was to encourage early and continuing non-binding dispute resolution to assist in achieving settlements as early as possible in the litigation process. The report stated at page 32, "The Task Force is persuaded that a focus on early consensual resolution of disputes holds the greatest promise for reducing costs and delays" and, as we made clear in our first recommendation, we wanted every jurisdiction to make available "opportunities for litigants to use non-binding dispute resolutions processes as early …

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Adr And The Public Interest, Lorne Sossin May 2006

Adr And The Public Interest, Lorne Sossin

Canadian Forum on Civil Justice

ADR’s benefits are well-known and oft-cited. ADR can reduce the cost of dispute resolution for the parties and the public purse. It leads to more harmonious relations and more varied and responsive settlements than the adversarial, winner-take-all premise of civil litigation. It has added attractions for the parties of confidentiality, flexible procedure, choice of decision-maker, focus on finding workable solutions to problems and fixed timelines for hearings and decisions. As a result of these benefits, it is not difficult to account for the dramatic rise of ADR providers.

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Civil Justice System And The Public: Learning From Experiences To Find Practices That Work, Barbara Billingsley, Diana Lowe, Mary Stratton May 2006

Civil Justice System And The Public: Learning From Experiences To Find Practices That Work, Barbara Billingsley, Diana Lowe, Mary Stratton

Canadian Forum on Civil Justice

The purpose of this report is to provide an overview of the Civil Justice System & the Public research project (the “CJSP”) undertaken by the Canadian Forum on Civil Justice and several research partners from 2001 to 2006. The CJSP was an ambitious and complex project, spanning several years and involving a multi-tracked, multi-party evaluation of communication practices in the already complex arena of Canada’s civil justice system. Designed as collaborative action research, this was not a static project: over the course of five years, the project objectives and research processes continuously evolved as the research produced new and better …

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Patient Safety, Medical Error And Tort Law: An International Comparison, Joan M. Gilmour May 2006

Patient Safety, Medical Error And Tort Law: An International Comparison, Joan M. Gilmour

Commissioned Reports, Studies and Public Policy Documents

No abstract provided.

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Fallout From Chaoulli: Is It Time To Find Cover?, Joan M. Gilmour Apr 2006

Fallout From Chaoulli: Is It Time To Find Cover?, Joan M. Gilmour

Osgoode Hall Law Journal

This article examines the implications of the decision in Chaoulli v. Quebec (A.G.) for Canadian health policy. The author assesses whether governments are likely to strengthen medicare, given past performance and the exit option Chaoulli presents. The article analyzes the consequences of increasing private care and private insurance, concluding this will diminish the publicly funded system. It contrasts Chaoulli -with courts' dismissals of claims for Charter protection of minimal social and economic security, despite the profound effects of the latter on health status. It concludes by noting Chaoulli is one more example of the increasing prevalence of discourse normalizing privatization …

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"The Last Line Of Defence For Citizens": Litigating Private Health Insurance In Chaoulli V. Quebec, Christopher P. Manfredi, Antonia Maioni Apr 2006

"The Last Line Of Defence For Citizens": Litigating Private Health Insurance In Chaoulli V. Quebec, Christopher P. Manfredi, Antonia Maioni

Osgoode Hall Law Journal

Litigating health care policy under the Canadian Charter of Rights and Freedoms has become an increasingly common phenomenon. The judicialization of health policy in this form raises important questions about the general phenomenon of legal mobilization. This article examines these questions in the context of Chaoulli v. Quebec (2005), in which the Supreme Court invalidated Quebec's prohibition against private insurance for medical services provided through the public health care system. Among the questions this article explores are: How do such cases get into the judicial system? Under what conditions are such claims likely to be successful? What is the impact …

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Chaoulli's Legacy For The Future Of Canadian Health Care Policy, Colleen M. Flood Apr 2006

Chaoulli's Legacy For The Future Of Canadian Health Care Policy, Colleen M. Flood

Osgoode Hall Law Journal

In Chaoulli, the majority of the Supreme Court of Canada struck down a Quebec law that prohibited the purchase of private health insurance for essential hospital and physician services. The majority found it to be in breach of the Quebec Charter of Human Rights and Freedoms. The Court was split 3-3 on whether it was also in breach of the Canadian Charter of Rights and Freedoms. The decision was initially considered of limited importance by many given that technically it applied only to Quebec. In the six months since the decision was released, however, it has become clear that the …

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Canada's Supreme Court And Its National Health Insurance Program: Evaluating The Landmark Chaoulli Decision From A Comparative Perspective, Theodore R. Marmor Apr 2006

Canada's Supreme Court And Its National Health Insurance Program: Evaluating The Landmark Chaoulli Decision From A Comparative Perspective, Theodore R. Marmor

Osgoode Hall Law Journal

This article proceeds in three modes. The first briefly characterizes my reactions to the Chaoulli decision in June 2005 as a policy analyst and one of the experts in the Quebec trial testifying on behalf of Canada's Attorney General. The second part discusses some of the commentaries of others in connection with this decision. The third-and the main section-deals with the Court majority's use of international evidence in arriving at its decision and argues that the approach taken violated almost every scholarly standard for competent, cross-national policy analysis.

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"The Last Line Of Defence For [Which?] Citizens": Accountability, Equality, And The Right To Health In Chaoulli, Martha Jackman Apr 2006

"The Last Line Of Defence For [Which?] Citizens": Accountability, Equality, And The Right To Health In Chaoulli, Martha Jackman

Osgoode Hall Law Journal

This article explores the legal and health policy significance of the Supreme Court of Canada's decision in Chaoulli c. Ouebec (Procureur general). Through an in-depth examination of the judgments in the case, the author suggests that the majority's approach to the evidentiary, section 7, and remedial issues raised negates the potential of Charter review as a mechanism for promoting accountability and substantive equality in the health care context. The article goes on to consider the longer-term implications of the decision, including the likely impact of Chaoulli on the health rights of people living in poverty and on the evolution of …

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Social, Economic And Health Problems Associated With A Lack Of Access To The Courts, Mary Stratton, Travis Anderson Mar 2006

Social, Economic And Health Problems Associated With A Lack Of Access To The Courts, Mary Stratton, Travis Anderson

Canadian Forum on Civil Justice

The purpose of this report is to further understanding about the social consequences arising from both unresolved legal problems and the process of attempting to resolve such problems through the courts. Previous research has shown that a significant portion of the population, in Canada and internationally, regularly experience problems that are both difficult to resolve and have legal implications. Furthermore, it is suggested that socially disadvantaged groups are more likely to experience serious problems, and less likely to successfully resolve them.

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Without Harry, Allan C. Hutchinson Jan 2006

Without Harry, Allan C. Hutchinson

Osgoode Hall Law Journal

No abstract provided.

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The "Ambitious Modesty" Of Harry Arthurs' Humane Professionalism, Julian Webb Jan 2006

The "Ambitious Modesty" Of Harry Arthurs' Humane Professionalism, Julian Webb

Osgoode Hall Law Journal

This article revisits Law and Learning, the 1983 Report of the Consultative Committee on Research and Education in Law, chaired by Harry Arthurs. The Arthurs Report set an ambitious agenda which sought, through the reform of legal education and scholarship, the cultivation of a "humane professionalism." That it met with limited success reflects a number of systemic problems with legal education, and the Report's own failure to address some critical issues, notably legal pedagogy. Nevertheless, the article argues that in the context of today's increasingly complex, pluralistic, and globalized environment, the law schools need humane professionalism more than ever. It …

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The Law School, The Profession, And Arthurs' Humane Professionalism, Robert W. Gordon Jan 2006

The Law School, The Profession, And Arthurs' Humane Professionalism, Robert W. Gordon

Osgoode Hall Law Journal

No abstract provided.

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