Law

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Open Access
A Comparative Study of Judicial Safeguards in Relation to Investor-State Dispute Settlement
(2020-05-11) Kristkova, Pavla; Van Harten, Gus
ISDS is a relatively young and dynamic regime. It faces challenges for which other adjudicative systems, after centuries of development, have found solutions. In ISDS, fair rules and procedures are essential since ISDS is an adjudicative regime said to be based on the rule of law. The importance of complex and carefully crafted rules and procedural safeguards is underscored by the impact of ISDS on a wide array of parties and interests and by its encroachment on the powers of sovereign states affecting their populations. Yet ISDS is criticized as unfair and open to unacceptable appearances of bias due to a lack of institutional safeguards. In this thesis, I assess whether these criticisms are compelling. Considering their prevalence in the debates about ISDS, I focus on issues of neutrality and fairness and, in particular, on two core values: (1) adjudicative independence and impartiality; and (2) the right of standing. I do so by examining institutional measures adopted to safeguard these values. These include: a) methods of appointment and case assignment; b) protections of the independence of individual adjudicators in the form of tenure and financial security; and c) guaranteed standing for parties with a legal interest. The goal of the thesis is to evaluate institutional safeguards of these values in ISDS through the method of a comparative study of adjudicative bodies in various contexts and to map the spectrum of safeguards used by other forums based on their common comparisons and similarities with ISDS. The results of the research highlight that, although ISDS has been lauded for its perceived neutrality and as a system superior to domestic courts, it is the regime with the weakest safeguards among all comparators, while domestic courts employ the strongest institutional safeguards. The central conclusion is that ISDS has systemic flaws and failures because it lacks mechanisms to safeguard the examined values, thus substantiating the relevant concerns about the institutional design of ISDS. To safeguard these essential values, it appears unavoidable that ISDS must be rejected in its current form.
Open Access
A Corporative Theory of Corporate Law and Governance
(2020-05-11) Bevans, Phillip Granville; Zumbansen, Peer C.
ABSTRACT This book investigates how a corporation, as a legal entity with certain specific attributes, but lacking human form, can take action in the real world of human activity. It contends that a corporation must take such action through, and by means of, an organization, both inside and outside its corporate legal limits, consisting of real individual persons and groups of persons. The corporation thus presents itself both as a legal entity assuming the legal form of a corporation and as a social entity taking the form of an organization. One form overlays the other. Those with whom it has legal relations, its legal counterparties, are also, in respect of its organization, participants in that organization. This theory of, or perspective on, the corporation and its governance is explicated here as corporative. The corporation comes into being, is situated, participates, and is embedded, in a complex sociopolitical-economic environment, which includes its legal counterparties and organizational participants. In addition to shareholders, they include employees, customers, suppliers, creditors, local, regional, and national communities, polities and governments, and non-governmental and other organizations, including those whose objectives include the environment, sustainability, governance, and social responsibility. Despite arguments from advocates of shareholder primacy and maximizing shareholder value, neither the corporation nor any of its participants, including shareholders, have any single objective. Instead, such participants have a variety of objectives which may be consistent to varying degrees with those of each other and with those of the corporation. However, the prosperity and well-being of corporations and their organizational participants, and the groups and other organizations of which organizational participants are members, at a macro-level, are, in many ways, interdependent. Today, prompted by various concerns (including the environment, sustainability, technology, changes in employment and other economic engagement patterns, and increasing income disparities), corporations, industry groups and NGOs, like governments, educational institutions, and other organizations, are facing challenges to the continued viability of contemporary capitalism and of its paradigmatic vehicle, the corporation. Addressing these challenges requires that corporations be considered in the context of the complex socio-political-economic environment in which they are situated and of which they partake. Drawing on analysis of corporate statutes and other relevant law, and historical, social, political, economic, organizational, business, and other theory, information and analysis, this work elucidates the corporative theory of, or perspective on, the corporation. It outlines how this might be applied in analyzing the corporation and its governance from a legal perspective. It illustrates how organizational participants may, and do, influence the behaviour of the relevant corporations; and how corporations may, and do, influence the behaviour of organizational participants. This contributes to understanding how such relationships may be employed, not only to save capitalism and the corporation, but to advance common interests in human prosperity, happiness, meaning, and even simple sustenance.
Open Access
A Critical Approach to the Regulation of a Public Corporation's Purchase of Its Own Shares on the Open Market: Lessons from The Transatlantic Comparison
(2022-12-14) Cohaz, Alper; Williams, Cynthia A.
Open market repurchases (OMRs)—by far the most common form of share repurchases—have reached record levels following the dramatic increase in number since the adoption of the safe harbor rule in the US. This dramatic increase has been largely attributed to purported benefits of OMRs that matter especially within the Anglo-American economic and corporate model. However, these benefits fail to fully explain such increase. This failure suggests that illegitimate purposes, which could easily be concealed beneath purported benefits, might have also contributed to the increase in the number of OMRs and resulted in their excessive use. This suggestion is supported by the ineffectiveness of the safe harbor rule applicable to OMRs in the US that paves the way for the exploitation of OMRs by corporate actors having inside or superior information. On the other hand, any and all share repurchases used to be strictly regulated in the EU. However, some EU Member States and later the EU itself relaxed legal capital rules including the rule on share repurchases and adopted a safe harbor rule on OMRs that is essentially similar to that in the US. This substantial legal convergence has also been followed by an increase in the number of OMRs in the EU. Notwithstanding that the increase in the EU has been more rapid than that in the US, the number of OMRs in the EU has been much lower than in the US. The less frequent use of OMRs supports the claim that corporations substantially persist in the Continental European model. In this model, the purported benefits of OMRs have been less significant and the potential of abuse of OMRs have been less probable than in the US. Such persistence has also been partly reflected on the OMR regulation in the EU that prescribes a less ineffective framework than that in the US through a few but crucial regulatory technical differences. Hence, this dissertation compares and contrasts rules and practices relating to OMRs on both sides of the Atlantic and comes up with a series of regulatory proposals to maintain the purported benefits while curbing the number and eliminating the potential drawbacks arising from the abuse of OMRs, particularly in the US but also in the EU and elsewhere. These proposals include two main easy-to-implement regulatory policy proposals, namely the enhancement of current disclosure requirements and the increase of oversight mechanism on OMRs, and a number of complementary proposals that include recommendations for various market actors to reduce the excessive use of OMRs.
Open Access
A Soft Competition Among Arbitral Institutions: The institutional oligopoly of mixed arbitration.
(2024-03-16) Schaugg, Lukas; Van Harten, Gus
Arbitral institutions play a vital role beyond merely facilitating international arbitration between private parties and states; they actively shape international legal norms and influence global governance. Despite their strategic and policy-shaping role, scholarship on arbitral institutions remains limited mostly to doctrinal analyses of their procedural functions. Addressing this gap, this thesis presents a comparative case study, exploring the influence of four dominant arbitral institutions and their leading experts on the development and evolution of mixed arbitration. The study combines insider research and work in the archives of inter- and non-governmental organizations, states, and influential individuals. It also draws on numerous leaked diplomatic cables. The thesis finds that the institutional market for treaty-based mixed arbitration constitutes an oligopoly of four institutions. Rather than from free market competition, this oligopoly emerged from a combination of factors, including brokering by international bureaucrats and arbitration experts during critical junctures, followed by subsequent path-dependent developments. This dynamic is historically embedded in the emergence of administered forms of contract-based mixed arbitration, which set the scene for the arrival of ICSID and the proliferation of treaty-based cases. While ICSID’s arrival marks a significant milestone, other institutions thrived in lesser but still vital ways, leveraging factors such as the timing of state accessions to the ICSID Convention, geopolitical dynamics during the Cold War, the introduction of the UNCITRAL Arbitration Rules, new treaty provisions offering a forum choice, and lobbying by influential experts who possessed ‘the right visibility at the right time’. The study contributes to several strands of scholarship, including on the political economy of the investment treaty regime, the growing judicialization of international law, and the role of non-state actors in international relations. It also represents the first comparative case study of non-doctrinal aspects of arbitral institutions with a focus on mixed arbitration.
Open Access
Aandaakonan inaakonigewin: Considering an Anishinaabe meaning to the Canadian law on consultation and accommodation
(2021-11-15) Guido, Veronica Ann; Drake, Karen
Indigenous laws are resurging throughout Turtle Island and have vital roles to play in the creation and application of laws, governance structures, and decision-making. However, for this to happen, the understanding of the law which is predominant and dictates legal processes must change, specifically when such laws apply to Indigenous land and peoples. This will allow Indigenous legal orders – including Anishinaabe legal norms such as mutual aid, kinship, giftedness and doodem – to flourish. This thesis explores Anishinaabe law resurgence by asking: how can decision-making about land, natural resources, and Aboriginal rights through the duty to consult and accommodate be altered so to be understood and applied through Anishinaabe law? By exploring the legal principles and theories that form both the colonial and Anishinaabe legal orders, this thesis considers one way Anishinaabe legal orders could understand the duty to consult and accommodate.
Open Access
Accepting the Unacceptable: Trinity Western University, Religious Freedom, and the Meaning of Liberal Constitutionalism
(2022-08-08) Boissonneault, Robert Stephen; Berger, Benjamin L.
This thesis proposes an answer to the question of when, and under what conditions, a state operating within the framework of liberal constitutionalism may legitimately condition receipt of public benefits on the recipient's conformity with liberal values—a question that is implicitly asked, but never directly answered, by the decision of the Supreme Court of Canada in Law Society of British Columbia v Trinity Western University. How this question is answered has significant implications for the law of religious freedom in Canada. This thesis posits a conceptual distinction between two types of public benefit: public licences and public mandates. This distinction is animated by the principles of 1) tolerance and 2) respect for individual self-actualisation, which together form the core of liberal constitutionalism. This thesis argues that only access to public mandates may be made contingent on conformity with liberal values.
Open Access
Access to Environmental Justice: NGO Environmental Advocacy on Mining-Related Environmental Issues in Mongolia
(2021-03-08) Enkhbaatar, Ulziilkham; Van Wagner, Estair
In this thesis, I apply the theory of environmental justice to determine how NGOs use substantive and procedural environmental rights to advocate for mining-affected nomadic communities in Mongolia. Environmental NGOs often possess legal and scientific expertise pertinent to resolving and mitigating environmental risks and demanding justice for environmental damages on behalf of the mining-affected local communities. Based on the environmental justice theories, I have constructed a theoretical framework to examine how NGOs access and implement environmental justice tools, both domestically and internationally. Using a multi-methods research approach, including documentary analysis and qualitative interviews with NGO experts and lawyers, I was able to uncover the experiences, difficulties, and challenges faced by NGOs as they seek favorable environmental outcomes. My findings demonstrate that domestic and international environmental justice tools provided opportunities to NGOs to litigate, advocate, negotiate, and mediate the disputes between marginalized mining-affected nomadic communities and their much-larger opponents, mining companies.
Open Access
Adjudicating Human Rights in Transitional Contexts: A Nigerian Case-Study, 1999-2009
(2014-07-09) Ugochukwu, Basil Emeka; Okafor, Obiora C.
While transitional justice and democracy literature bristles with the expectation that human rights conditions would improve with the progression from the “darkness” of a dictatorship to the “light” of democratic rule, Nigeria’s transition to civil rule in 1999 would seem to provide a sobering contra-reality. Democracy does not seem to have produced a better human rights environment in the post-transition Nigerian context. This dissertation answers the question why the restoration of civil rule in Nigeria has not translated to results in human rights practices that come close to matching the expectations of its citizens and the predictions of transitional justice literature? It investigates, however, only the extent to which human rights violations correlates with the lack of effective judicial protection of those rights between 1999 and 2009. The methodology is mostly interdisciplinary. The discussion is organized around doctrinal legal reasoning and case-law analysis. First analyzed were cases decided prior to 1999 to show the slippery provenance and inadequacy of the current rights-based adjudication standards. Cases decided since 1999 were then evaluated to measure the claim that the judiciary is failing in its duty as guardians of human rights post-transition. To that extent, the dissertation has not limited itself to a single theoretical model. It was found that some of the biggest problems afflicting human rights adjudication in Nigeria are historically defined. A major challenge is the apparent lack of a clear standard for reviewing laws and actions against the constitutional requirement that they be reasonably justifiable in a democratic society. This creates a culture where human rights cases are approached on an ad hoc case-by-case basis such that contradictory decisions are possible from cases with similar facts. Dealing with this challenge is not helped by the country’s legal history and the doctrines of the British legal system that a colonial relationship fostered after independence. The current approach is still orientated towards British administrative law principles which did not demand the standard of intense scrutiny required for the effective protection of human rights norms. The dissertation therefore recommends a reformed system of legal education with strong comparative approaches to change this orientation.
Open Access
Administrative Convenience or Deliberate Reform? The Impacts of the Colonial Judicial Legacy of the Pre-Colonial Justice System in South-Western Nigeria
(2023-12-08) Adeyeye, Adewale Adekunle; Akande, Rabiat
In pre-colonial times, the ethnic groups that independently existed in the territory now called Nigeria had organized systems of government. However, the sweeping force of nineteenth-century colonialism erased most of these pre-colonial governments’ institutions and replaced them with the British system. Notably, in South-Western Nigeria (Yorubaland), historical evidence revealed the existence of a constitutional monarchy with organized branches of government. Especially, the pre-colonial judicial branch/justice system of the Yoruba monarchy was radically altered by colonialism. Using the interdisciplinary methodology, this research answered questions related to the structures and procedures of the pre-colonial justice system in South-Western Nigeria and how it is indelibly impacted by colonialism. In its systematic, and expository narration, this research found an inseparable nexus between lawfare and force as instruments of colonial distortion of the pre-colonial justice system of South-Western Nigeria. Thus, this work augments an aspect of the almost neglected field of African/Nigerian legal history.
Open Access
Artificially Intelligent Copyright: Rethinking Copyright Boundaries
(2019-07-02) Gaon, Aviv Hertzel; D'Agostino, Giuseppina
My dissertation explores the legal boundaries of copyright law in the wake of artificial intelligence (AI) technology. In building the theoretical foundations for my dissertation, I go through several key phases. First, I highlight important historical events and milestones in AI. I further develop the philosophical debate on AI legal personhood and deliberate whether we are approaching a singularity the next stage of AI evolution. I also explore the concept of AI as it matured through the years. In the second part, I theorize how AI can be regarded as an author under IP normative standards. Part of accepting the argument that AI deserve copyright is a willingness to change the perception that only human creations are worthy of copyright protection. I also seek an answer to two sub-questions the who and the what. The who considers the normative standards of authorship in the ongoing struggle between an authors right and the public domain. The what raise the originality debate and discusses the standard of creation. In the third part, I outline the many candidates for AI authorship the programmer, the user, the AI and an alternative legal framework for AIs ownership like the public domain or author-in-law. Finally, I discuss the outcomes of each model and provide my conclusions.
Open Access
Assessing Canada's Copyright Law in the Digital Context: Digital Locks, Open Licenses, and the Limits of Legislative Change
(2020-05-11) Ogoroh, Justice Ifeonukwu; Craig, Carys J.
This dissertation examines Canadas copyright law reform in the information age. The overarching theme of my research underscores the importance of considering the purpose(s) of copyright law and the public interest while navigating the copyright law reform process. Additionally, I advocate that in regulating the influence of technology in the copyright system, the default approach should aim to objectively balance the interests of stakeholders to the extent possible. Ultimately, recognizing that stakeholders will continue to develop pragmatic responses to the changing landscape through private contracting and technological measures, I suggest that embracing regulatory pluralism is the most promising path towards achieving balanced copyright in the digital age. I develop these arguments over six chapters.
Open Access
Attracting Foreign Investments for Green Energy Projects in Subsaharn Africa: Climate Change Policy & Innovation in International Legal Compliance
(2019-11-22) Lewis, Leslyn Ann; Mgbeoji, Ikechi M C
Sub-Saharan Africa must confront the dual problem of development coupled with the complexities surrounding climate change. The regions stagnated growth has been historically attributed to many factors, but the predominant thought from an international law perspective is that if the region modernizes its legal and regulatory structures this will engender the confidence of foreign investors. With this acknowledgement came the demand on developing nations to modernize local legal and regulatory systems initially focusing on globally harmonized intellectual property rights and then more recently their energy regulatory infrastructures and processes to attract foreign investments. Several international organizations and institutions including the WTO, World Bank and the UN have recommended energy policies to hasten sustainable development in the sub-Saharan region. The recommended policies have been implemented by many sub-Saharan African nations with little change in attracting foreign investors to fund these projects. Despite international commitments, sub-Saharan African nations have not been the beneficiaries of these initiatives, while countries like China, India and Mexico have received an influx of foreign investments within the green energy sector. Two main issues arise from the lack of foreign investments. First, do flexibilities need to be built into international trade and climate change Agreements to encourage developing countries down a sustainable development path? The second issue is whether there are local and regional factors that affect a countrys ability to attract foreign direct investments (FDI), particularly those focused at climate change abatement projects? Sub-Saharan African countries like Ghana, West Africa have implemented new energy policies like the Feed-In Tariff (FIT) model, but still have not enjoyed increase foreign investments in renewable energy projects. Will the energy sector mimic the pharmaceutical sector where promises of investments were made if countries harmonized their laws, but failed to deliver rewards for these modernization initiatives? Or are there lessons to be learnt regarding local practices, policies and structures that must be modified in order to attract foreign investments. This thesis will examine the local factors beyond modernization efforts within the energy sector that may negatively impact on foreign investors willingness to undertake green energy projects within the region within the context of international trade and climate change Agreements. It will use Ghana as a case study to explore some of the issues and regional concerns that explain the reluctance of foreign investors to initiate green energy projects.
Open Access
Best Laid Birth Plans: a relational analysis of the legal rights of birthing people in Canada
(2024-03-16) Stevenson, Julianne Michelle; Mykitiuk, Roxanne
While it is trite law in Canada that patients have the right to make their own medical decisions, news reports, regulatory complaints, and civil claims indicate that this right is failing to translate to delivery rooms. This thesis examines the gaps between the legal rights of birthing people in Canada as they exist “on the books” and the way those rights are experienced, using the critical theory of Law in Action. Building on feminist critiques of the traditional liberal conception of autonomy, this thesis conceptualizes childbirth as an experience deeply embedded in relations to others and concludes that to close the gaps between legal rights and lived experiences, we must craft law and policy in a manner that accounts for the broader relational context in which childbirth occurs.
Open Access
Beyond the Habitual: Legal Argument Upon the Use of Force and During the Conduct of Hostilities
(2019-07-02) Hughes, David Michael; Drummond, Susan
This dissertation moves beyond traditional assessments of legal compliance. It offers a more complete understanding of how international law functions upon the use of force and during the conduct of hostilities. The dissertation consists of four case studies each presented and published as standalone articles that provide fuller descriptions of international laws efficacy within fraught international contexts. By moving beyond the common evaluative standard of compliance, this dissertation presents a pluralistic conception of international laws function and purpose. Accordingly, the first case study presents an account of the way that international humanitarian law is used to manage prolonged occupation. The second case study shows how the traditional language of legal legitimacy is being supplemented by states that now complement claims of legal compliance with assertions of investigative willingness. The third case study engages with the notion of lawfare and suggests that this term as become a means of limiting access to international justice. The fourth and final case study provides a communicative theory that describes the microprocesses that states employ when they use international law to argue and to advance military and diplomatic objectives. Collectively, these case studies understand international law as a multifunctional tool. They provide accounts of how international law functions, how it compels, how it facilitates, and how it is altered. Through a series of rhetorical moves the state identifies the forms of international law with which they adhere, it devalues or deflects certain obligations by accentuating others, it establishes and develops conceptions of international law with which it wishes to further, and it presents the resulting engagements as illustrative of a commitment to the international legal process and global order. This dissertation asks not whether states comply with international law but how they comply.
Open Access
British Empire, Land Tenure and the Search for an Ideal Proprietor: 1868-1875
(2022-08-08) Aulakh, Preetmohinder Singh; Girard, Philip V.
Between 1868 and 1875, several land tenure laws (Punjab Tenancy Act of 1868; Landlord and Tenant (Ireland) Act of 1870; and Prince Edward Island Tenants Compensation Act, 1872 and Land Purchase Act, 1875) were enacted across the British Empire. These laws established some form of security of tenure for the actual cultivators of land by recognizing co-proprietorship of tenants and landlords and/or by transferring proprietorship from landlords to tenants. This study examines how proponents of the rights of cultivators overcame long-standing resistance to any encroachment of landlords property rights in these socio-politically diverse and geographically dispersed colonies. Comparative analyses of the historical land tenure arrangements in the three colonies and the contestations around the specific laws reveal two crucial mechanisms which facilitated the institutionalization of peasant-proprietorship. First, there was a fortuitous ideological alignment between important governing agents in the three colonies. Sympathy for the peasants of John Lawrence (Governor-General of India) and his followers in Punjab after the 1857 Rebellion, the desire of William Gladstone and his Liberal government to pacify Ireland in 1868 through a resolution of the centuries-old land question, and the singular focus of the Prince Edward Island legislature by the late 1860s to establish the rights of tenants and convert the leasehold to freehold tenures on the island, reinforced each other in promoting the rights of tenants. Second, these efforts were crucially augmented by the redirection of the debate about how far land tenures being considered across the Empire would impact the sanctity of English principles to one where these existing principles were deemed to be anomalous and thus not applicable to the colonies. The extrication of land tenure considerations in the colonies from the institutionalized practices in England allowed for inter-colony analogies and precedents to support the proprietary rights of the peasant cultivators. The use of inter-colony analogies not only overcame resistance from the influential aristocratic classes and their supporters across the Empire during the period of the current study but also became the normative tool in expanding peasant-proprietorship well into the twentieth century for successive British governments of all political stripes.
Open Access
Canada’s Cultural Property Export Controls: An Analysis of the Colonial and Heritage Discourses that Animate the Cultural Property Export and Import Act
(2023-12-08) Davis, Madeline Anne; Buchanan, Ruth M.
This thesis critiques Canada’s Cultural Property Export and Import Act (CPEIA) and its framing as a legal instrument intended to protect and preserve Canada’s cultural heritage. It focuses on the export provisions of the Act and the related experts and administrative bodies who oversee disputes under those provisions. I argue that colonial and capitalist heritage and property discourses are the foundation that underpins the CPEIA and as a result, the legislation both expressly and implicitly privileges colonial and capitalist ideas about heritage and property ownership. The legislation, on its face and through the limited examples of available application, leaves little room for alternative ideas about the meaning of “heritage” and its association with culture. Relying on Laurajane Smith and Fiona Macmillan’s work on the Authorized Heritage Discourse, I provide an updated historical account of the CPEIA and Canada’s perceptions of cultural property as a settler state in light of new opportunities to engage with the application of the legislation following recent decision from the Federal Court of Appeal and the Canadian Cultural Property Export Review Board.
Open Access
Changing Our Tune: A Music-Based Approach to Teaching, Learning, and Resolving Conflict
(2015-08-28) Ippolito, Linda Marie; Emond, D. Paul
The need for change within the legal profession and legal education is critical. To remain relevant and responsive to twenty-first century challenges and complexities the next generation of professionals must be creative, imaginative, and innovative thinkers. Emotional and social intelligence, the ability to collaboratively problem-solve, negotiate, and mediate complex conflict are essential skills needed for success particularly in increasingly settlement-oriented environments. Studies and reports have noted, however, that practitioners are lacking these key skills. How can these new perspectives and essential skills be taught and developed? This mixed methods research study involved five professional musicians and thirty-eight first year law school students. Data from musicians regarding effective collaborative music-making and most valued capacities for achieving optimal outcomes informed the design of a comparative teaching study that explored the effects of introducing a music-based metaphor and pedagogical approach to teaching, learning, and resolving conflict. The study provided insights into whether and how the musical ensemble metaphor might assist in shifting adversarial combative and competitive frames toward more collaborative, settlement-oriented mindsets and whether and how music-infused pedagogy might assist in developing enhanced skills and practice behaviours that lead to more desirable outcomes. Results from this initial study suggest that non-musicians in non-musical environments are able to learn from musical metaphors and concepts related to ensemble music-making and that such learning – cognitive, affective, and behavioural – translates into changed and more effective behaviour in practice. In simulated scenarios students exposed to the musical metaphor and other music-based learning appeared to outperform their colleagues not exposed to similar music-based learning. Engagement with music appears to reconnect people to their creative potential and lead them to see the efficacy of employing creative thinking in professional environments where analytical and critical thinking have generally been over-emphasized. There are indications that experiences with collaborative approaches to conflict have the potential to shift traditional norms and behaviours. This study and its results are of interest to those in the field of law, conflict resolution, those exploring arts-based teaching and learning in other professions, such as leadership and organizational behaviour, to music educators, and educators at all levels generally.
Open Access
Charter Damages: Private Law in the Unique Public Law Remedy
(2018-11-21) Adourian, Peter Krikor; Cameron, Jamie
In 2010, the Supreme Court of Canadas decision in Vancouver (City) v Ward created a framework for a Charter damages claim. In two subsequent decisions, the Court deviated from Ward by relying extensively on private law principles to award public law damages. In doing so, the Court has created increasingly troubling results. I review the history of Charter damages and the Courts relevant Charter and private law damages jurisprudence, with a particular focus on factors like fault thresholds, immunities, and direct liability of government. I find that Ward provides an appropriate and just remedy in accordance with a purposive approach to Charter remedies, the interest-balancing approach in the Charter text and jurisprudence, and the well-established objectives of Charter remedies. Understanding Charter damages in this way limits the role for private law principles. The future development of Charter damages doctrine ought to be guided by Charter principles first.
Open Access
Class Roots: The Genesis of the Ontario Class Proceedings Act, 1966 - 1993
(2017-07-27) Chiodo, Suzanne Erica; Girard, Philip V.
Nearly 25 years since its passage, the Ontario Class Proceedings Act has become one of the most frequently debated procedural mechanisms of its kind. The CPA came about following the release of the Attorney Generals Advisory Committee (AGAC) Report in 1990. None of the current narratives explain how this Report pulled together so many divergent interests where previous attempts had failed. My thesis answers this question with reference to the historical sources and the legal, political and social changes that took place throughout this period. This thesis also highlights the unique nature of the AGAC consultation process, which saw the negotiation of a consensus between the parties and the subsequent drafting of legislation. Although this process was effective, however, it led to compromises and a lack of democratic oversight that continue to affect the CPA and its goals of access to justice to this day.
Open Access
A Comparative Study of Patent Infringement Remedies Related to Non-Practicing Entities in the Courts of Canada, the United Kingdom, and the United States
(2014-07-09) Nikolic, Aleksandar; Mgbeoji, Ikechi M. C.
This work examines the scope of non-practicing entity behavior and whether the debate on remedies can lead to changes that encourage the goals behind a patent system. Innovation is often the stated goal but the significance of innovation commercialization is often ignored. Furthermore, there has been an increase in business models that involve alternate means of monetizing patents, not all of which were contemplated in the purpose of the patent system. Using the goals of the patent system as a backdrop, this work provides an overview of the impact of remedies available to courts in Canada, the United Kingdom, and the United States on patent systems. The courts have the tools in each jurisdiction to grant remedies appropriate to the infringement. However, systemic limitations in each patent system often prevent the courts from reviewing disputes.