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This article is about two ideologies. Welfare-consequentialism holds that government should adopt the policies that can rationally be expected to maximise aggregate welfare. Populism holds that society is divided into a pure people and a corrupt elite, and asserts that public policy should express the general will of the people. The responses of world governments to the coronavirus pandemic have clearly illustrated the contrast between these ideologies, and the danger that populist government poses to human wellbeing. The article argues that welfare-consequentialism offers a vaccine for populism. First, it rebuts populism’s claims about who government is for and what it should do. Second, the pessimism and distrust that make people crave populism can be satiated by successful welfare-consequentialist government. Finally, welfare-consequentialism’s sunny narrative of progress can be just as compelling to people as populism’s dark story has proven to be.

Welfarism is the idea that government should always try to make individuals' lives go better, for them, than they otherwise would, overall. The goal of this paper is to demonstrate welfarism's compatibility with, and potential to support, the ambitions of person-centered justice. Welfarism is a normative theory applicable to public policy generally, but one which has distinct consequences in the realm of law and legal systems. They are considered just to the extent that they generate the best possible expected welfare consequences for all of the individuals who are affected by them. Welfarism is radically person-centred because it requires lawmakers to treat each individual affected by their work as a distinct locus of value, including those who have been subordinated or ignored.

Tribunals have great potential to improve access to justice in Canada, and the goal of this article is to better understand this potential. It begins by defining "tribunals" and "access to justice," the key concepts of this article. Because tribunals and trial courts are functional alternatives for the resolution of many legal disputes, the article first reviews the merits of triallevel courts in this regard. It then turns to tribunals, reviewing some objective evidence of tribunal excellence in creating access to justice. Four key attributes of tribunals make them advantageous alternatives to trial-level courts for the accessible and just resolution of many types of legal dispute. First, tribunals are specialized instead of having general jurisdiction. Second, tribunals apply teamwork to dispute-resolution, instead of assigning all responsibility to individual adjudicators. Third, healthy forms of accountability are easier to establish in tribunals than they are in courts. This includes accountability of individual members to the tribunal and accountability of the tribunal to the legislature that created it. Finally, tribunals can be designed for maximal performance in creating access to justice, by contrast to courts which, for good reasons, resist design or reform efforts coming from outside themselves. The final Part of the article argues that tribunals can advance access to justice not only by taking on dispute-resolution work that courts would otherwise do, but also by offering authoritative legal vindication of rights that would otherwise be abandoned, or resolved in a completely privatized way. The tribunal promise of accessible adjudication can also be expected to improve the quality of settlements, in terms of upholding parties' substantive legal rights.

Michael Trebilcock's superb new book was published on March 8th, 2022. Just the week before, something happened that shows just how important this monograph is. Just across the street from Trebilcock's office at the University of Toronto Faculty of Law is Queen's Park, the seat of the Ontario Legislature. On February 28th, the Government introduced Bill 88 there. The Bill was entitled The Working for Workers Act, and mostly pertained to employment standards for digital workers. However, tucked at the end of the Bill was legislation on a completely different topic. Schedule 5 would have abolished the College of Traditional Chinese Medicine Practitioners of Ontario. Since 2006, this entity had regulated practitioners of traditional Chinese medicine and acupuncture in the province. No consultation or warning preceded the surprising move to eliminate the College. Practitioners of Chinese Medicine, and the College itself, apparently learned about this plan on the same day as the rest of the province. It took the press and the Opposition a few days to notice what had been proposed. Questioned in the Legislature a few days later, Minister of Health Christine Elliot stated that abolishing the regulator would "allow more individuals to get back into the business of practising traditional Chinese medicine." The College's examinations and disciplinary proceedings would be replaced by an optional registration regime, under a regulator also charged with overseeing personal support workers. The licenses issued by the College to people who had passed the exams would henceforth have no legal significance. Premier Doug Ford, in a press conference later that day, blamed the College’s decision to administer licensing exams in English or French only, given that many aspiring practitioners were only fluent in Mandarin or Cantonese.

Is litigating the best interests of a child a contradiction in terms? This portfolio dissertation asks this question with regard to child custody and access disputes, in which separated parents contest for the rights and responsibilities of parenthood. It is axiomatic that children's interests are doctrinally supreme when their parents litigate about them, but do civil procedure and settlement practices in these cases also put children first? The dissertation responds to this research query using quantitative and qualitative empirical methodology. It draws both on a statistical analysis of reported cases and on the author's interviews of family law professionals in Toronto and New York City. The empirical findings are contextualized in a review of the relevant doctrine and scholarship from the legal and mental health disciplines. The first two articles make positive and normative claims about custody and access litigation in developed common-law jurisdictions; the remaining three focus on the settlement-seeking procedures which family courts apply to these cases. The Conclusion to the Portfolio draws from the articles to argue that, while litigating the best interest of a child is not a contradiction in terms in every custody or access case, the contours of the existing system are more reflective of adult interests and resource constraints than they are of children's interests. A family court is necessarily a civil justice system in the common law tradition, and can therefore only ever be a weak and inefficient servant of children's interests. However, the Portfolio does call for a cost-neutral procedural reform in the shape of a "grand bargain" between judges and parents. If parents yield power to judges within the adjudicative courtroom, and if judges in turn yield power to parents within the settlement-seeking conference room, the system will be brought more in line with its noble aspiration to pursue the best interests of the children involved.

When parents separate and cannot agree about parenting arrangements for their children, a state-authorized neutral party must resolve the dispute. Two groups of neutral professionals perform this function in many western jurisdictions. The first group is judges, who are entrusted with the ultimate decision-making authority. The second group is custody and access assessors, who are generally psychologists, psychiatrists, or social workers. This thesis compares the processes by which these two groups of professionals make the decisions, and analyzes the interface between them. It then presents the results of empirical research about the extent to which Ontario judges accept custody and access recommendations from social worker assessors employed by Ontario's Office of the Children's Lawyer. The central finding was that the judges and assessors agreed only about half of the time. Possible explanations for this finding are explored, and its significance is analyzed in the context of the existing literature.

Review of Michael Trebilcock, Paradoxes of Professional Regulation: In Search of Regulatory Principles. Canadian Business Law Journal, Vol. 67, page 247. This review considers the regulation of professions through an examination of Michael Trebilcock's new book. The key themes include risk arising from service-provision, alternatives such as licensing and registration, and the political economy of occupational regulation. Trebilcock's book combines the virtues of "thinking like a lawyer" and "thinking like an economist."

Tribunals constitute a vitally important part of Canada’s justice system, but their place in the Canadian state is fragile and their essential function is misunderstood. This article explains the need for pro-functional tribunal law, which would position tribunals to consistently deliver on their potential. Differentiating tribunals dedicated to resolving legal disputes from non-tribunal agencies that do other work is the key. Differentiation would advance goals related to specialization, the separation of powers, and democracy in Canada. It would allow tribunals to escape the taint of partiality to government. It would also set the stage for a professionalization and depoliticization of tribunal appointment practices, securing tribunals and their users from the type of dysfunction that has recently plagued Ontario’s tribunals. The final Part of the paper argues that the Canada’s legislatures, rather than its appellate courts, are the most promising venue for the adoption of pro-functional tribunal law.

Each year, over 100,000 Ontarians seek justice from Tribunals Ontario. This group of people —the size of a small city— includes tenants, landlords, motor vehicle accident victims seeking insurance benefits, people denied disability benefits, and those who believe that their fundamental human rights have been infringed. This group of 100,000 is significantly larger than the […]

Four of Ontario’s highest-volume adjudicative tribunals became seriously dysfunctional in late 2018. Systemic delays of months or years arose, basic procedural rights were abandoned, and substantive miscarriages of justice became common in the fields of residential tenancy, human rights, and entitlement to benefits. This article describes these symptoms, before seeking to diagnose the underlying problem. The proximate cause of the dysfunction was the approach to tribunal appointments taken by the executive branch of Ontario’s government. Members appointed by the previous government were “de-appointed” en masse, and meritorious replacements were not found promptly. Some of these problems began prior to 2018. Shortcomings in the other two branches of Ontario’s government also contributed to the dysfunctionality. The Ontario Legislature’s statute governing adjudicative tribunals, and its committee overseeing appointments, lacked the powers and resources that would be necessary to safeguard them from executive neglect. Meanwhile, Ontario’s courts are not an accessible and proportionate forum to backstop adjudicative tribunals. Moreover, a review of the case law shows that they lack doctrinal tools to hold the Government responsible for systemic delay and counterproductive appointment practices.

How much does it cost individual Canadians to seek civil justice? This article compiles empirical data about the monetary, temporal, and psychological costs confronting individual justice-seekers in this country. The article suggests that analysis of private costs can improve access to justice in two ways. First, it can help public sector policy-makers to reduce these costs. Second, it can help lawyers and entrepreneurs to identify new, affordable ways to reduce the costs that are most onerous to individuals with different types of civil legal need.

Judicial Review' means a court reviewing a decision made by an administrative tribunal. When judicial review occurs, should the tribunal be allowed to send a lawyer to court to defend its decision? I think it generally should, and this article explains why.

‘Abysmal’ was the word used to describe the accessibility of Canadian civil justice in a recent major report. Access to justice is simultaneously a social problem, a professional obligation for the legal profession, and a market opportunity for law firms. Are there any signs of significant progress on any of these fronts? This short Correspondent's report will review recent Canadian efforts to connect people of modest means with the expert legal services they urgently need.

In common law Northern Europe and in Australasia, a wave of reform has been transforming legal services regulation since roughly 1980. Old structures and approaches, based on the principles of professionalism and lawyer independence, are being replaced in these jurisdictions by new ones that prioritize competition and consumer interests. In the United States this has conspicuously not happened, leaving intact a regulatory approach whose broad outlines have changed little in the past 100 years.

High prices and lack of innovation have placed expert legal services beyond the reach of too many Americans and Canadians. Is legal services regulation exacerbating common law North America’s access to justice problem? Does regulatory maintenance of a unified legal profession, and insulation of that profession from non-lawyer influence, make it more difficult for people here to meet their legal needs? This article argues that, although regulatory liberalization is not a magic bullet for the accessibility of justice, there is strong evidence of a link between regulation and access. North American lawyer regulators need to understand, and work to reduce, the effects of their policies on the accessibility of justice.

This paper considers the different types of challenges that technological innovation poses to the Legal Services Act 2007’s regulatory framework, and whether the framework is capable of supporting technological innovation that benefits consumers while also addressing the risks it poses to them.The paper makes some recommendations about how the current regime could be adapted to better address these challenges, but its overall conclusion is that the LSA regime remains capable, for the time being, of responding to them.

When an intimate relationship breaks down and one of the people involved seeks money from the other, should it make any difference to the law whether or not they were formally married? This article argues that it should make a difference, at least when spousal support is being sought and the parties were never parents together. Winner of the 2008 Falconer Memorial Student Essay Competition in Family Law.

Research paper prepared for the Law Commission of Ontario.