Law Commons^™

Fighting For The Right To Housing In Canada, Tracy Heffernan, Fay Faraday, Peter Rosenthal

Journal of Law and Social Policy

This paper examines Tanudjaja v Attorney General—the “Right to Housing” case. The authors, co-counsel on the case, discuss the context of the case, the nature of the application, and the legal underpinnings of the section 7 and 15 Canadian Charter of Rights and Freedoms claims, including positive obligations under the Charter and international law, innovative procedure taking a systemic approach to challenging oppressive legislation, and innovative supervisory orders. The authors examine the procedural and substantive implications of the provincial and federal governments’ move to strike the case, parse the Ontario Superior Court of Justice and Ontario Court of Appeal decisions …

Charter Eviction: Litigating Out Of House And Home, Margot Young

Journal of Law and Social Policy

The case of Tanudjaja v Attorney General (Canada) takes up the cause of housing rights under the Canadian Charter of Rights and Freedoms in a novel and complex way. The government actions and inactions cited as constitutional breaches and the broad remedial requests reflect the “pixelated” picture of housing concerns necessary to understanding Canada’s housing security crisis. In dismissing the challenge at a preliminary stage, the Ontario Superior and Appeal Courts risk rendering the Charter irrelevant to the deep social justice concerns that cross our country. More specifically, formulaic judicial invocation of concerns about positive rights and justiciability leave the …

Implementation Of Housing Rights In South Africa: Approaches And Strategies, Lilian Chenwi

Journal of Law and Social Policy

Ensuring access to adequate housing, especially for the poor and disadvantaged in society, including those faced with evictions and displacement, continues to be a global challenge. The situation remains critical in South Africa, with many poor households living in difficult conditions, facing the risk of eviction and unable to access adequate housing. This is despite the myriad of progressive housing laws, jurisprudence, policies and programs that exist in South Africa. Notwithstanding the challenges that the country faces in ensuring the effective realization of the right to adequate housing, as illustrated in this article, lessons can be learnt from its approaches …

The Right To Housing In France: Still A Long Way To Go From Intention To Implementation, Claire Lévy-Vroelant

Journal of Law and Social Policy

The goal of this essay is to examine the implementation of housing rights in France. Legislation adopted in March 2007 opened the possibility of an enforceable right, which can be asserted before a court. However, it also created new inequalities before the law. Indeed, the conditions required to access that right exclude people who do not have permanent residence or a valid temporary resident permit. The implementation of this right is also limited due to the lack of available housing, especially at Ile-de-France, and to competition between people with priority entitlements. The horrible fire at a furnished Parisian hotel in …

Do Us Proud: Poor Women Claiming Adjudicative Space At Cesr, Emily Paradis

Journal of Law and Social Policy

Claiming Our Rights was a feminist participatory action research project based at Sistering, a Toronto drop-in for women facing homelessness. At weekly meetings over the course of eighteen months, members learned about social and economic rights, gave testimony on their lived experiences, and undertook actions to claim their rights. Among other initiatives, the group—which members named FORWARD—contributed a report on women’s homelessness to the 2006 review of Canada by the United Nations Committee on Economic, Social and Cultural Rights. This paper draws upon observations of the group’s process and in-depth interviews with participants to assess this human rights education methodology. …

Community Campaigns For The Right To Housing: Lessons From The R2h Coalition Of Ontario, Yutaka Dirks

Journal of Law and Social Policy

This paper describes the history of the Right to Housing (R2H) Coalition of Ontario and the role of the Advocacy Centre for Tenants Ontario (ACTO) within the Coalition. The R2H Coalition provided support to the applicants in the Right to Housing Charter Challenge. The Coalition also engaged in a variety of educational and community organizing activities in support of the right to housing and the creation of a federally funded affordable housing strategy. This paper, based on the author’s personal experiences within the R2H Coalition, examines how the adoption of community organizing principles could strengthen campaigns for systemic social change, …

Catherine Lennon's Story: Lessons From Front Line Advocacy On The Human Right To Housing, Rob Robinson

Journal of Law and Social Policy

Discusses the United States housing crisis, where four and a half million families were foreclosed on between 2008 and 2013. Families who lacked universal or adequate health insurance, found the physical pain and suffering of a loved one was soon followed by the economic pain and suffering associated with the high costs of health care. The human reality of this suffering is reflected by the story of New York state resident Catherine Lennon. Ensuring the pay out to Bank of America was the law firm of Steven J. Baum, the notorious New York based foreclosure mill, which has since been …

To Dignity Through The Back Door: Tsilhqot’In And The Aboriginal Title Test, Andrée Boisselle

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

The decision of the Supreme Court in Tsilhqot’in clarified the content of the test for Aboriginal title. This article examines the reasoning of the Court to determine whether the judgment meaningfully contributes to re-equilibrating the conceptual framework of Canadian Aboriginal jurisprudence, still deeply skewed in favour of the Crown and of its asserted sovereignty. Beyond the case’s positive outcome for the Tsilhqot’in people, does the clarification of the test empower Indigenous peoples seeking the recognition of their title over their traditional territory? Regarding the role reserved by the Court to Indigenous legal traditions in its reasoning, the answer is no: …

Hart And Mack: New Restraints On Mr. Big And A New Approach To Unreliable Prosecution Evidence, Lisa Dufraimont

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

Taken together, the Supreme Court of Canada’s recent judgments in R. v. Hart and R. v. Mack represent a coherent approach to confessions arising from Mr. Big operations. The Court has now recognized that these operations carry risks of generating evidence that is both unreliable and prejudicial, and of becoming abusive. Hart and Mack erect some safeguards for the accused in the Mr. Big context. The judgments should encourage police to exercise restraint in using the technique and courts to be more vigilant in assessing the resulting confessions. Even outside the Mr. Big context, the judgments may be relied on …

The Obsolete Theory Of Crown Unity In Canada And Its Relevance To Indigenous Claims, Kent Mcneil

Articles & Book Chapters

This article examines the application of the theory of the unity of the Crown in Canada in the context of Indigenous peoples. It reveals a consistent retreat by the courts from acceptance of the theory in the late nineteenth century to rejection of it in the second half of the twentieth century. This evolution of the theory' relevance, it is argued, is consistent with Canada federal structure and eventual independence from the United Kingdom. However, in a startling reversal, the Supreme Court reverted to the theory in its 2014 judgment in Grassy Narrows First Nation v Ontario (Minister of Natural …

Succession And Transfer Of Businesses In Canada, Eric Tucker, Christopher Grisdale

Articles & Book Chapters

Canada is a liberal market economy and as such the freedom of owners of capital to transfer businesses is not heavily regulated and the rights of workers affected by those transfers are limited. Before discussing those rights some preliminary matters need to be addressed.

A Traditionalist's Take On Bankruptcy Intersections, Stephanie Ben-Ishai

Articles & Book Chapters

No abstract provided.

Book Review: The Emerging Personality Of The American Corporation, Cynthia A. Williams

Articles & Book Chapters

No abstract provided.

Exclusive Occupation And Joint Aboriginal Title, Kent Mcneil

Articles & Book Chapters

In Tsilhqot’in Nation v British Columbia, the Supreme Court of Canada for the first time issued a declaration of Aboriginal title. The area to which the declaration applies is part of the traditional territory of the Tsilhqot’in Nation, amounting to the land within the claim area that they were able to prove, to the satisfaction of Justice Vickers at trial, had been in their exclusive occupation at the time of Crown assertion of sovereignty in 1846.

The area claimed in the Tsilhqot’in Nation case was not subject to competing claims by other Aboriginal peoples. However, as is well known, …

Introduction: War Measures And The Repression Of Radicalism, 1914-1939, Barry Wright, Eric Tucker, Susan Binnie

Articles & Book Chapters

This fourth volume in the Canadian State Trials series, Security, Dissent, and the Limits of Toleration in War and Peace, 1914–1939, brings readers to the period of the First World War and the inter-war years. it follows an approach similar to that of others in the series. the central concern remains the legal responses of Canadian governments to real and perceived threats to the security of the state. the aim is to provide a representative and relatively comprehensive examination of Canadian experiences with these matters, placed in broader historical and comparative context.

Women Talking About Water: Feminist Subjectivities And Intersectional Understandings, Leila M. Harris, Jyoti Phartiyal, Dayna Nadine Scott, Megan Peloso

Articles & Book Chapters

In this study based on discussions held by women's groups across Canada on water challenges and interests, we recognized that in the current context in Canada, women are truly connected with peoples, humans or any other form of life. They recognize that water is socially embedded, integrating issues of social, ecological and intergenerational justice in relation to complex changes in riparian landscapes. Clearly their talk is from a gender perspective, but we also found movement beyond gender that nuanced cross-sectoral understanding, critical links between gender, class and ethnicity are frequently mentioned.

Reaffirmation Of Debt In Consumer Bankruptcy In Canada, Stephanie Ben-Ishai

Articles & Book Chapters

No abstract provided.

Payment Law: Legislative Competence In Canada, Benjamin Geva

Articles & Book Chapters

This article addresses the legislative competence in Canada in relation to regulatory and transactional aspects of payment of law. Setting out the parameters of "payment law", the article examines the federal legislative powers in relation to bills and notes as well as banking, in broader constitutional and historical context, and argues for federal jurisdiction. A possible legislative role for the provinces is also discussed.

Grounding Access To Justice Theory And Practice In The Experiences Of Women Abused By Their Intimate Partners, Janet Mosher

Articles & Book Chapters

For women seeking to extricate themselves from the web of entrapment woven together by the multiple threads that make up the coercive control repertoire of their abusive intimate partners, it is often difficult to avoid engagement with legal systems. Yet, the legal systems they encounter—criminal, family, child welfare, immigration among them—are frequently unwelcoming (if not hostile), controlling, demeaning, fragmented and contradictory. While there has been a recent explosion of interest in “access to justice,” little attention has been paid to how we might conceptualize access to justice in a manner that speaks meaningfully to the circumstances of women who experience …

Canada Tracks Disability Rights: A Drpi Model Of Systemic Monitoring, Roxanne Mykitiuk, Yvonne Peters

Articles & Book Chapters

This chapter surveys laws and policies in Canada that affect the rights of persons with disabilities. It does so as part of a broader project on international disability rights monitoring and is guided by DRPI's National Law and Policy Monitoring Template (2008). The template is based on the Convention on the Rights of Persons with Disabilities (CRPD) and other international instruments. The template's purpose is "to monitor human rights for people with disabilities at the systemic level, that is, at the level of existing laws, policies, and programs," and to "identify and draw attention to the most critical gaps and …

Constitutionalising The Senate: A Modest Democratic Proposal, Allan C. Hutchinson, Joel I. Colón-Ríos

Articles & Book Chapters

The Senate Reference did not provide an ideal situation for clarifying the nature and limits of the power of constitutional reform in Canada. The facts gave the Court no choice but to recognize the fundamental role that the Senate plays in the Canadian constitutional order, and therefore to place some of its main features outside the scope of section 44 of the Constitution Act, 1982, even if they ran contrary to basic democratic values. For example, in order to explain that the implementation of consultative elections would alter the constitution’s basic structure, the Court was forced to construe in a …

Comparative Matters: The Renaissance Of Comparative Constitutional Law, Benjamin Berger

Articles & Book Chapters

As the epigraph to one chapter in his impressive volume, Comparative Matters: The Renaissance of Comparative Constitutional Law, Ran Hirschl offers the following exchange between the archaeologist Howard Carter and his patron, Lord Carnarvon, on Carter's entry into Tutankhamun's tomb: “Can you see anything?” “Yes, wonderful things!” The epigraph might aptly frame the volume as a whole. Hirschl's ambition is to seize a pivotal moment in the development of comparative constitutional scholarship and to help those engaged in the field to see more and better. There is a tone of excitement and affection in the pages, born of the …

Notions Of Reproductive Harm In Canadian Law: Addressing Exposures To Household Chemicals As Reproductive Torts, Roxanne Mykitiuk, Alana Cattapan, Mark Pioro

Articles & Book Chapters

Mounting scientific evidence is suggesting that various synthetic chemicals are ubiquitous in the household and natural environment, and are affecting reproductive health in humans. Yet litigation in response to exposure to harmful chemicals has had limited success. This is in large part because causation is often difficult to prove, as exposure often occurs over long periods of time, and the sources of suspected chemical agents are ubiquitous and/or diffuse. In light of these challenges, there is a need to consider new legal strategies to confront these harms.

This article examines the potential for prenatal exposure to harmful chemicals to be …

Foreword For The Inaugural Issue Of The Canadian Journal Of Comparative And Contemporary Law (Cjccl), Lorne Sossin

Articles & Book Chapters

It is my privilege to offer this brief foreword for the inaugural issue of the Canadian Journal of Comparative and Contemporary Law (CJCCL), launched in 2013 by Thompson Rivers University Faculty of Law. 1 will offer a word or two about the Journal and then a word or two about its first issue, which grapples with the complex interrelationship between health law and human rights.

Some might see this as a perilous moment at which to launch a new law journal. We are by any measure at the crossroads of significant change in the dissemination of ideas about law and …

Land Use Priorities And The Law Of Nuisance, Dan Priel

Articles & Book Chapters

Rights-based approaches to tort law have been prominent in recent years in theoretical discussions of tort law. Much of this work has been either highly abstract or focused on a small number of torts like negligence or trespass. Allan Beever’s The Law of Private Nuisance attempts to extend this approach to the tort of private nuisance. Central to his account is the view that the law of nuisance is concerned with prioritising land uses, and that what the law calls ‘nuisance’ is really a case of one land use conflicting with another, higher-ranked one. This essay argues that despite claims …

Fiduciary Obligations And Aboriginal Peoples, Kent Mcneil

Articles & Book Chapters

No abstract provided.