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2008

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Osgoode Hall Law School of York University

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Articles 1 - 30 of 33

Full-Text Articles in Law

The Alberta Legal Services Mapping Project: Pilot District Interim Report, Glynnis Lieb Nov 2008

The Alberta Legal Services Mapping Project: Pilot District Interim Report, Glynnis Lieb

Canadian Forum on Civil Justice

Our justice system is a fundamental and far-reaching component of Canada=s system of democracy. It is complex with four broad divisions of law: civil, family, criminal and administrative. Lack of public understanding of our justice system is therefore a key and fundamental concern for the administration of justice.


Community-Based Mapping: A Research Tool For Justice System Research, Mary Stratton Sep 2008

Community-Based Mapping: A Research Tool For Justice System Research, Mary Stratton

Canadian Forum on Civil Justice

Mapping research is a form of collaborative needs assessment or environmental scan that recognizes, includes and values local knowledge as essential to understanding communities.


A Case For An International Investment Court, Gus Van Harten Jul 2008

A Case For An International Investment Court, Gus Van Harten

All Papers

The article elaborates on the lack of objective guarantees of independence and impartiality in the existing system of investment treaty arbitration. This founds a case for an international investment court to replace the existing system. The argument proceeds in three steps: (1) investment treaty arbitration is uniquely a form of public law adjudication, constituted at the international level; (2) as constituted it does not satisfy standards of independence and impartiality in public law adjudication; and (3) various reasons that might be offered to justify this failing are unsatisfactory in light of the importance of these standards. For this reason, states …


Reaching Out With Research: Engaging Community In Mapping Legal Service Accessibility, Effectiveness And Unmet Needs, Mary Stratton Jun 2008

Reaching Out With Research: Engaging Community In Mapping Legal Service Accessibility, Effectiveness And Unmet Needs, Mary Stratton

Canadian Forum on Civil Justice

Emerging international research demonstrates that high economic and social costs accrue when individuals cannot access timely and effective resolutions to legal problems. Canadian research also shows that most people lack knowledge and understanding of legal rights, legal processes and services, and experience significant barriers when attempting to seek legal information and assistance. Within the Canadian justice community there is strong interest in engaging all relevant stakeholders in collaborative processes of research and policy development. This paper discusses how community-based mapping research can facilitate such engagement in compiling evidence that informs the development of legal processes and services that are more …


The Civil Justice System And The Public Justice For Nunavummiut: Partnerships For Solutions, Travis Anderson, Mary Stratton Jun 2008

The Civil Justice System And The Public Justice For Nunavummiut: Partnerships For Solutions, Travis Anderson, Mary Stratton

Canadian Forum on Civil Justice

As part of the Civil Justice System and the Public (CJSP), a national collaborative research project, we first visited Iqaluit in June 2003. At that time the Research Coordinator met with key contacts in the Nunavut justice and social service community to talk about the research and make plans for conducting the field research. As a result of these initial meetings, the CJSP team made contact with Inuit services in Ottawa. In July 2003, during the Ontario phase of the CJSP research, we met Inuit service providers and several Nunavummiut who were at that time living in Ottawa.1 In September …


Access To Justice: Report On Selected Reform Initiatives In Canada, Canadian Judicial Council Jun 2008

Access To Justice: Report On Selected Reform Initiatives In Canada, Canadian Judicial Council

Canadian Forum on Civil Justice

When the Sub-committee on Access to Justice (Trial Courts) first met we confirmed that we are concerned with access to justice, and in particular with mounting costs in the justice system. While Subcommittee members are aware of important initiatives designed to respond to the issue of costs at the trial level, it was felt that it would be helpful to know more about what is happening across the country so that we can identify promising practices to reduce costs. To that end we agreed that the starting point for the work of the Subcommittee is to develop a focused inventory …


Evaluation Of Criminal Law Offices - Third Year, Robert Hann, Frederick H. Zemans, Joan Nuffield Apr 2008

Evaluation Of Criminal Law Offices - Third Year, Robert Hann, Frederick H. Zemans, Joan Nuffield

Commissioned Reports, Studies and Public Policy Documents

Report submitted to Legal Aid Ontario.


Research In Action: Understanding Civil Justice In The Everyday World: Developing Networks For Evidence Based Socio-Legal Research Workshops, Mary Stratton Apr 2008

Research In Action: Understanding Civil Justice In The Everyday World: Developing Networks For Evidence Based Socio-Legal Research Workshops, Mary Stratton

Canadian Forum on Civil Justice

The overall objective of the Supporting Civil Justice Reform Through Research grant was to increase the focus and capacity for research on the civil justice systems. The Research in Action - Developing Networks for Evidence Based Socio-legal Research workshop series was an integral component in meeting that objective.


Investment Provisions In Economic Partnership Agreements, Gus Van Harten Mar 2008

Investment Provisions In Economic Partnership Agreements, Gus Van Harten

Commissioned Reports, Studies and Public Policy Documents

No abstract provided.


Book Review: Justice In Robes By Ronald Dworkin (2006), Dan Priel Feb 2008

Book Review: Justice In Robes By Ronald Dworkin (2006), Dan Priel

All Papers

Since the 1960's Ronald Dworkin has been arguing for a particular account of law that he believed was both explanatorily superior to the one offered by competing theories, and also the basis for normative arguments for producing right answers to legal questions. Justice in Robes collects Dworkin's most recent essays on this subject and thus provides the appropriate opportunity for assessing the legal theory of one of the more influential legal philosophers. In this Review I seek to offer a clearer account than appears in the book itself of Dworkin's project, and in this way offer a measured assessment of …


Better Never Than Late, But Why?: The Contradictory Relationship Between Law And Abortion, Shelley A. M. Gavigan Jan 2008

Better Never Than Late, But Why?: The Contradictory Relationship Between Law And Abortion, Shelley A. M. Gavigan

Articles & Book Chapters

"I am honoured to have been invited to be a panelist in such distinguished company at this important event. I am particularly attracted to the invitation in the title of the Symposium to reflect upon the 1988 decision of the Supreme Court of Canada in R. v. Morgentaler. In reflecting upon the case, its significance and legacy, I want to talk about the importance of history, the contradictory nature of law and the enduring importance of ideology."


Public Justice, Private Dispute Resolution And Democracy, Trevor C. W. Farrow Jan 2008

Public Justice, Private Dispute Resolution And Democracy, Trevor C. W. Farrow

Comparative Research in Law & Political Economy

This paper is about the widespread and systematic privatization of the public civil justice system. In particular, it: (1) documents the move to privatize civil disputes across all aspects of the justice system (including courts, administrative tribunals and state-sanctioned arbitration regimes), (2) looks at some of the benefits and drawbacks of privatization, specifically including negative impacts on systems of democratic governance, and (3) identifies justice - rather than efficiency - as the primary benchmark by which civil justice reform initiatives should be judged.


Cyberlaws And Cybercafés: Analysis Of Operational Legislation In Some Commonwealth Jurisdictions And The United States, Yemisi Dina Jan 2008

Cyberlaws And Cybercafés: Analysis Of Operational Legislation In Some Commonwealth Jurisdictions And The United States, Yemisi Dina

Librarian Publications & Presentations

This chapter will discuss the existing cyber laws in some commonwealth countries and the United States. It compares the various definitions accorded to cyber crimes in these countries. It examines and discusses when cyber crime occurs in the various jurisdictions regardless of where it originates, the laws that apply to pornographv, the significance of jurisdiction for Internet criminals in all these countries, as well as when cybercafe operators are liable in cyber related crimes.


The 'Affected' Post-Preimplantation Genetic Diagnosis Embryo, Estair Van Wagner, Roxanne Mykitiuk, Jeff Nisker Jan 2008

The 'Affected' Post-Preimplantation Genetic Diagnosis Embryo, Estair Van Wagner, Roxanne Mykitiuk, Jeff Nisker

Articles & Book Chapters

The meaning of "health" is constructed from a variety of perspectives, including biomedical, social and political, and in a variety of sites, including human bodies and natural environments. In this chapter we suggest that the human embryo is one such site. At first glance the in vitro embryo is not an obvious location from which to examine such constructions; however, we contend that an increasing focus on biomedical determinations of the "health" of the human embryo (Mykitiuk and· Nisker, 2008b; Van Wagner, Mykitiuk and Nisker, 2008) is significant not only in the application to human embryos themselves, but also in …


Book Review: Comparative Consumer Bankruptcy, Stephanie Ben-Ishai Jan 2008

Book Review: Comparative Consumer Bankruptcy, Stephanie Ben-Ishai

Articles & Book Chapters

This is a review of Comparative Consumer Bankruptcy by Jason J. Kilborn. Durham, NC: Carolina Academic Press, 2007.


No Right (To Organize) Without A Remedy: Evidence And Consequences Of Failure To Provide Compensatory Remedies For Unfair Labour Practices In British Columbia, Sara Slinn Jan 2008

No Right (To Organize) Without A Remedy: Evidence And Consequences Of Failure To Provide Compensatory Remedies For Unfair Labour Practices In British Columbia, Sara Slinn

Articles & Book Chapters

Employees and unions encounter significant risks during union organizing and often see their efforts thwarted by employers. Labour law regimes attempt to minimize these risks by rendering unlawful a number of unfair labour practices (ULPs) employers can use to prevent unionization. But labour relations boards (LRBs) in Canada often avoid awarding full compensation for the harm ULPs cause, leading employers to still view ULPs as advantageous courses of action with only moderate associated costs.The author argues that this problem can be solved or greatly mitigated without the need for formal reforms, LRBs rather must come to embrace the full range …


Corporate Self-Regulation: Political Economy, State Regulation And Reflexive Labour Law, Harry W. Arthurs Jan 2008

Corporate Self-Regulation: Political Economy, State Regulation And Reflexive Labour Law, Harry W. Arthurs

Articles & Book Chapters

In his introductory essay, Brian Bercusson notes:

Actors at disparate levels ... are linking up to form novel regulatory approaches ... The efficacy of these emerging forms of labour regulation, their democratic legitimacy, the goals and values underlying them, and the direction of reform are all in dispute.

The ambition of this chapter is to explore one such “novel regulatory approach” – reflexive labour law – and to assess not only its efficacy, legitimacy and normative aspirations, but also its intellectual origins, assumptions and implications.

The growing corpus of reflexive labour law scholarship comprises foundational essays by Gunther Teubner, …


Writing Resistance Into International Law, Ruth Buchanan Jan 2008

Writing Resistance Into International Law, Ruth Buchanan

All Papers

This essay considers the problem of theorizing resistance within international law through a close reading of two recent contributions to the TWAIL literature. It is concerned less with their critiques of contemporary developments, than with how these scholars map the possible spaces for resistance of third world states and peoples to international legal institutions and discourses. Do they argue that third world resistance has the potential to transform international law, and move us in the direction of a more just international order? If so, how is that process of change envisioned? While the answers to these questions are, not surprisingly, …


The Generative Structure Of Aboriginal Rights, Brian Slattery Jan 2008

The Generative Structure Of Aboriginal Rights, Brian Slattery

Articles & Book Chapters

Are aboriginal rights historical rights -- rights that gained their basic form in the distant past? Or are they generative rights -- rights that, although rooted in the past, have the capacity to renew themselves, as organic entities that grow and change? Section 35(1) of the Constitution Act, 1982 provides little guidance on the point, referring ambiguously to "existing aboriginal and treaty rights". In the Van der Peet case, decided in 1996, the Supreme Court of Canada characterized aboriginal rights primarily as historical rights, moulded by the customs and practices of aboriginal groups at the time of European contact, with …


Silent Partners: The Role Of Unpaid Market Labor In Families, Lisa Philipps Jan 2008

Silent Partners: The Role Of Unpaid Market Labor In Families, Lisa Philipps

Articles & Book Chapters

The term 'unpaid market labor' refers to the direct contributions of unpaid family members to market work that officially belongs to another member of the household. Thus one individual may be construed legally as an owner or entrepreneur, but relatives may help out informally with business operations. Likewise, in corporate or public-service settings, certain employees rely on the unpaid help of an executive spouse or political wife. This paper argues that unpaid market labor is conceptually distinct from both paid work and unpaid domestic labor. Legal cases from Canada are used to illustrate the policy implications of this insight and …


Constructing 'Health', Defining 'Choice': Legal And Policy Perspetives On The Post-Pgd Embryo In Four Jurisdictions, Estair Van Wagner, Roxanne Mykitiuk, Jeff Nisker Jan 2008

Constructing 'Health', Defining 'Choice': Legal And Policy Perspetives On The Post-Pgd Embryo In Four Jurisdictions, Estair Van Wagner, Roxanne Mykitiuk, Jeff Nisker

Articles & Book Chapters

Through Preimplantation Genetic Diagnosis, embryos created by IVF are selected for transfer to a woman based on particular characterisations, including the presence of genetic markers or a tissue match for a sibling. In this paper we examine the precise language used in the recent policy and regulatory documents of four jurisdictions (the United Kingdom, Australia, Canada and New Zealand) that in any way characterises the post-PGD embryo. We then explore the mutually constructed relationship between how that embryo is characterised and the purposes for which PGD is applied, as well as the types of uses to which the post-PGD embryo …


Mistaken Bids And Unilateral Mistaken Assumptions, A New Solution For An Old Problem?, John D. Mccamus Jan 2008

Mistaken Bids And Unilateral Mistaken Assumptions, A New Solution For An Old Problem?, John D. Mccamus

Articles & Book Chapters

The “two-contract” analysis of the Supreme Court of Canada’s decision in Ron Engineering has created a very substantial obstacle to relief for mistaken bidders who discover calculation errors upon the opening of the bids. Nonetheless, Canadian courts are inclined to narrowly distinguish that analysis and grant relief in cases of extreme error in order to avoid unduly onerous penalties for mistaken bidders and large unearned windfalls for issuers of invitations to bid. This article argues that recent decisions of Canadian appellate courts articulating a rule which would excuse bidders where the burden imposed by the miscalculation is so grossly disproportionate …


Will The Law Society Of Alberta Celebrate Its Bicentenary?, Harry W. Arthurs Jan 2008

Will The Law Society Of Alberta Celebrate Its Bicentenary?, Harry W. Arthurs

Articles & Book Chapters

External changes - in demography and economy, in the domestic and global organization of power - are transforming the knowledge base of Canada's legal profession, the relations amongst lawyers and between lawyers and their "relevant others, " and indeed the very notion oflegal professionalism. This article explores the implication of these changes for the future of the profession 's governing bodies.


Regulating Payday Lenders In Canada: Drawing On American Lessons, Stephanie Ben-Ishai Jan 2008

Regulating Payday Lenders In Canada: Drawing On American Lessons, Stephanie Ben-Ishai

Articles & Book Chapters

No abstract provided.


Captive Audience Meetings And Forced Listening: Lessons For Canada From The American Experience, Sara Slinn Jan 2008

Captive Audience Meetings And Forced Listening: Lessons For Canada From The American Experience, Sara Slinn

Articles & Book Chapters

Widespread adoption of mandatory representation votes and express protection of employer speech invite employer anti-union campaigns during union organizing, including employer-held captive audience meetings. Therefore, the problem of whether and how to restrict employers’ captive audience communications during union organizing is of renewed relevance in Canada. Captive meetings are a long-standing feature of American labour relations. This article considers how treatment of captive meetings evolved in the U.S., including the notion of employee choice, the “marketplace of ideas” view of expression dominating the American debate, and the central role of the contest between constitutional and statutory rights. It also considers …


Helping Out In The Family Firm: The Legal Treatment Of Unpaid Market Labor, Lisa Philipps Jan 2008

Helping Out In The Family Firm: The Legal Treatment Of Unpaid Market Labor, Lisa Philipps

Articles & Book Chapters

This article investigates the work of individuals who help out informally with a family member's job, often without pay. Examples include the relative who works in the back room of the family business, the executive spouse who hosts corporate functions, the political wife who campaigns with her husband, or the child who does chores on the family farm. The term "unpaid market labor" (UML) is used here to describe the ways that family members collaborate directly in paid activities that are legally and socially attributed to others. The practical legal problems that can arise in relation to UML are illustrated …


On The Importance Of Intellectual Property Rights For E-Science And The Integrated Health Record, Giuseppina D'Agostino, Chris Hinds, Marina Jirotka, Charles Meyer Jan 2008

On The Importance Of Intellectual Property Rights For E-Science And The Integrated Health Record, Giuseppina D'Agostino, Chris Hinds, Marina Jirotka, Charles Meyer

Articles & Book Chapters

An integrated health record (IHR) that enables clinical data to be shared at a national level has profound implications for medical research. Data that have been useful primarily within a single clinic will instead be free to move rapidly around a national network infrastructure. This raises challenges for technologists, clinical practice, and for the governance of these data. This article considers one specific issue that is currently poorly understood: how intellectual property (IP) relates to the sharing of medical data for research on large-scale electronic networks. Based on an understanding of current practices, this article presents recommendations for the governance …


The Cultural Limits Of Legal Tolerance, Benjamin Berger Jan 2008

The Cultural Limits Of Legal Tolerance, Benjamin Berger

Articles & Book Chapters

This article presents the argument that our understanding of the nature of the relationship between modern constitutionalism and religious difference has suffered with the success of the story of legal tolerance and multiculturalism. Taking up the Canadian case, in which the conventional narrative of legal multiculturalism has such purchase, this piece asks how the interaction of law and religion - and, in particular, the practices of legal tolerance - would look if we sought in earnest to understand law as a component, rather than a curator, of cultural diversity in modern liberal societies. Understanding the law as itself a cultural …


Gender Equity In Clinical Trials In Canada: Aspiration Or Achievement?, Roxanne Mykitiuk, Patricia Peppin Jan 2008

Gender Equity In Clinical Trials In Canada: Aspiration Or Achievement?, Roxanne Mykitiuk, Patricia Peppin

Articles & Book Chapters

Achieving gender equity in clinical trials requires that women be included in sufficient numbers to carry out analysis, that sub-sample analyses be performed, and that results be communicated in such a way as to expand medical knowledge, inform policy decisions, and educate patients. In this article, we examine the extent to which Canada promotes gender equity through its laws and guidelines, viewed within the context of its drug safety system and its research ethics board structure. We analyze the structuring of information by the pharmaceutical industry and consider the impact of its promotional activities on the state of gender knowledge …


Regulating Unreliable Evidence: Can Evidence Rules Guide Juries And Prevent Wrongful Convictions, Lisa Dufraimont Jan 2008

Regulating Unreliable Evidence: Can Evidence Rules Guide Juries And Prevent Wrongful Convictions, Lisa Dufraimont

Articles & Book Chapters

Recent years have seen increasing concern over the prevalence of wrongful convictions in Canadian criminal courts. This concern is particularly pronounced in jury trials, as jurors are untrained and often lack the familiarity, experience and knowledge required to evaluate evidence of doubtful reliability. Research has suggested that three forms of evidence - eyewitness identification, confessions and jailhouse-informant testimony -pose particular reliability concerns in jury trials. The special problem, common to all three, is the tendency of jurors to overlook the factors that make them unreliable. Canadian criminal evidence law purports to address this problem, but the author argues that the …