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Since the publication of the first edition in 1970, Labour and Employment Law: Cases, Materials, and Commentary has become the standard resource for labour and employment law courses across Canada. Prepared by a national group of academics -- the Labour Law Casebook Group -- the book has continued to evolve with each new edition, reflecting the considerable changes that have occurred in Canadian workplaces and the laws governing them. A great many changes throughout the book respond to the numerous developments in labour and employment law since 2011. The most high-profile of these has been the set of Charter decisions that extend the protection of freedom of association to include the right to choose an independent bargaining agent and the right to strike, and which rely significantly on international labour standards in doing so. Additionally, this new edition responds to the growing importance of international and transnational law with a completely revised chapter; focuses on the gig economy and the proliferation of contracting networks that have fissured workplace relations; provides examples of caselaw and policy discussions grappling with the reach of legal responsibility to workers in these new relationships; and deepens the treatment of the rights of dependent contractors at common law and under labour and employment legislation. New cases and other source material have been added, and material that appeared in previous editions has been updated. The result is a comprehensive and thoroughly contemporary volume that benefits from over forty-five years of use in law schools across the country, while at the same time taking advantage of cutting-edge scholarship in assessing issues of contemporary concern.

Law societies in Canada have long been granted the privilege of self-regulation by the state – a privilege that comes with a statutory duty to govern in the public interest. There exists an access to justice crisis in this country. More must be done to address unmet legal needs. There is nothing new in this, but law societies across Canada are reluctant to implement at least one ready solution. Ontario introduced paralegal regulation over ten years ago with the promise that it would increase access to justice. Evidence suggests that it has done so. Yet no other Canadian jurisdiction is prepared to regulate paralegals as independent providers of legal services. Law societies’ continued resistance to the regulation of paralegals is contrary to the public interest. This paper argues that to alleviate the access to justice crisis, it is time to regulate paralegals.

Canadian aid to Palestine will continue to do little good if the Canadian government continues to ignore Israel’s role in destroying the Palestinian economy and violating basic human rights.

In its 2008 decision in R v Kapp, the Supreme Court of Canada gave broad effect to the Canadian Charter of Rights and Freedom's ameliorative program provision, section 15(2). The Supreme Court's decision signalled that a government respondent's declaration that a program is “ameliorative” may shield it from further scrutiny under section 15(1). This Women's Court of Canada judgment takes the opportunity to reformulate the approach to section 15(2). Although the Charter provides express protection of ameliorative programs, such programs have sometimes been challenged by members of advantaged groups claiming “reverse discrimination.” We argue that such “equality regressive claims” should be caught by section 15(2). However, for challenges to “under-inclusive” programs, deference to the government on the development of ameliorative programs may perpetuate disadvantage experienced by excluded disadvantaged groups and should not be similarly shielded. This decision develops a contextual approach to section 15(2) that ensures that it does not become a loophole through which government respondents can avoid fulsome Charter scrutiny of claims of under-inclusivity. We outline a test that not only encourages government to take affirmative action but is also narrow enough to subject genuine equality claims to section 15(1) review.

Free speech may protect offensive speech, but we degrade this central right when we see it as simply the right to offend, regardless of the impact on others.

In contemporary copyright law, there is an ongoing debate around the nature and scope of the rights users should have to copyright works, exacerbated by ongoing technological developments. Within that debate, this article queries the value of looking at the remedies users may have against copyright holders restricting their legitimate uses of works, as a means to further elucidate the nature and scope of user rights. While there is some value in looking at remedies to situate copyright user rights, an access to justice perspective to rights and remedies suggests that such approach may be too limiting with respect to the position of potential claimants in a legal system. On that basis, this paper identifies structural deficiencies of copyright user rights and proposes an analytical framework towards achieving greater “justice for users” both in the realm of public law and private law.

Transportation is the lifeline that connects persons with disabilities with the community, and facilitates greater opportunities for work, social inclusion and overall independence. Adequate accessible transportation has long been a concern of persons with disabilities, yet there is a dearth of sustained research on the legal and societal implications of transportation inequality for persons with disabilities. This article contributes to the research on both transportation inequality and equality theory by providing an empirical and theoretical analysis of the human rights tribunal decisions on transportation equality in Canada. In doing so, it examines the issues from the perspective of the voices of persons with disabilities by focusing on the substance of their legal claims. Ultimately, the author argues that narrow interpretations of prevailing law and doctrine have resulted in missed opportunities for achieving transportation equality on the ground for persons with disabilities. These opportunities may be captured by the application of a new theory of equality that addresses disability discrimination through the lens of what the author terms the ‘universality of the human condition’.

Colour, as a ground of discrimination, is usually equated with or subsumed under the ground of race. We argue that colour does and should have a discrete role in human rights and equality cases because it highlights certain hierarchies and forms of marginalization unaddressed by the ground of race. To support this argument, we first explore the concepts of “race” and “colour” and their relationship to one another, as well as the harms done by discrimination based on colour. Then, after a brief review of the use of race and colour in international and domestic instruments, we examine American anti-discrimination employment cases to learn from that country’s experience with separating the race and colour grounds of discrimination. We then turn to the emerging Canadian jurisprudence recognizing a distinct role for the colour ground and examine the possible consequences of that recognition.

In this third chapter of the book, The Right to Say No, Marital Rape and Law Reform in Canada, Ghana, Kenya and Malawi, (Hart, 2017) we provide a big-picture perspective on the long and bumpy road taken by many of the world’s countries in moving towards legal recognition that sexual assault can occur in a marital relationship and in the provision of a criminal law remedy for this form of gendered violence. We begin the chapter by articulating our arguments about why engaging the power of criminal remedies is necessary to the struggle to end sexual violence against women in marriage, particularly with reference to criminal law’s importance in expressing fundamental social norms. Section II moves to a critical review of the historical origins and ideological justifications underpinning the marital rape exemption in diverse societies. We show how similar themes occur across very different social regimes.

During the first Industrial Revolution, the patent system developed in an era of democratized invention. Individual inventors dominated patent filings and helped create a narrative surrounding the transformative impact of the patent system on the lives of inventors and society. Existing scholarship often overlooks the role of patent agents, those individuals who assisted inventors in securing patent rights, during this era. Industrial Revolution era patent agency was broad and indiscrete compared to its current form, which was largely a product of the needs of individual inventors and a pre-professionalization view of the discipline. As corporatization slowly replaced the individual inventor and professionalization began to dominate many occupational fields, the professional patent agent materialized. However, the emergence of disruptive technologies in our new Fourth Industrial Revolution may be reversing both of these trends, with the re-emergence of democratized invention and challenging the discretization of many fields of professional service.

This article challenges traditional approaches to gender difference in prescriptive negotiation analysis. Historically, dispute resolution scholars and practitioners analyzing the determinants of gender have either assumed or concluded that women and men negotiate differently, with so-called “women’s ways” being seen as less effective than “men’s ways” at achieving principled negotiation results. This position has led scholars to offer prescriptive negotiation advice that maps onto two forms of difference feminism: liberal feminist negotiation (translatable as “fix the woman”) and cultural feminist negotiation (translatable as “fix the system around the woman”). This article critiques difference feminist theory for its practical and political implications in principled negotiation. These criticisms suggest that difference feminist theory limits the range of negotiation tools accessible to everyone by reinscribing sex and gender stereotypes, and only allows room for feminist interventions based in minoritizing discourses of female/feminine bargaining identity at the expense of universalizing discourses of human activity. The article then offers an alternative based in postmodern feminism, “protean negotiation,” that aspires to dissolve fixed gender identities for the practical and political benefit of both women and men. This article concludes by suggesting that a form of the classic Negotiator’s Dilemma is reflected in the progressive politics of gender in negotiation where cultural feminism and postmodern feminism suggest a tension between ideological commitments to “identity” and “activity” respectively. These intuitions give rise to a struggle called the “Feminist Negotiator’s Dilemma,” and there may be no way to resolve it. The task for progressive politics should be to accept these competing imperatives and to negotiate their contradictions if feminists are to effectively understand, let alone resist, the limitations of gender difference in negotiation theory and practice.

This is an introduction to selected articles published in vol. 35 of The Windsor Yearbook of Access to Justice (2018) further to the Symposium: "Copyright User Rights and Access to Justice" hosted by Windsor Law on May 18-19 2017. It gives a brief overview of the concept of copyright user rights and access to justice, as well as of the main themes discussed in the articles and at the Symposium, including access to knowledge and human rights.

The #MeToo movement has exposed inequalities in the legal system that disadvantage women. Restorative justice could help in certain sexual violence cases.

Racial bias likely played a role in the Gerald Stanley case. This article explains how racial dynamics and process failures enabled systemic racism to play a part in Stanley’s acquittal.

This dissertation delves into the legal and labour history of Hashemite Iraq (c. 1921-1958) to explore the role international law and its institutions played in Iraqs state formation, as well as, the imperial control of the semi-peripheral region of the Middle East. By highlighting the historical specificity of the semi-periphery in international legal history, it shows how Iraq was a laboratory for experimentation with the concept of sovereignty. A unique doctrine of semi-peripheral sovereignty was skillfully developed by the Permanent Mandates Commission of the League of Nations in Geneva and embedded in the 1930 Anglo-Iraq Treaty to ensure Iraqs independence in 1932 maintained geopolitical and imperial interests that were specific to the region, especially the extraction, production and transportation of Iraqi oil to the Mediterranean. The material effects of this international legal doctrine on the everyday lives of working class Iraqis is traced by looking at how it intersected with British imperial law, land law, the transnational law of oil concessions and pipeline agreements, criminal law and emergency law. The spaces and semi-colonial enclaves of capitalist production and trade of the oil fields in Kirkuk, the railways in Baghdad and the Port of Basra, and their corresponding governing structures are then detailed in micro-histories with the aim of analyzing the manner in which the oil, port and railway workers organized against the semi-colonial and imperial legality that was imposed upon them. The dissertation ends with an analysis of the massive 1948 Wathba uprising against the revision of the 1930 Anglo-Iraq Treaty. The Wathba, successfully prevented the re-imposition of imperialism in Iraq, and would turn into the seed of the July Revolution in 1958. It is situated here within the wider history of decolonization in the Third World to advance a novel methodological approach of the conjuncture to understand anti-colonial and labour agency in relation to international legal history. This study illustrates that undertaking a conjunctural analysis illuminates how the agency of the ordinary peoples of the Third World influenced international legal transformation. The doctrine of semi-peripheral sovereignty and all juridical forms of semi-colonialism would be unequivocally rejected through the Iraqi contribution to the drafting of the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples. This dissertation therefore reveals the unique constitutive relationship between international law, imperialism, and capitalism in the semi-peripheral Middle East, while maintaining the importance of integrating the history of class formation, agency and labour into international legal history. The material effects of this international legal doctrine on the everyday lives of working class Iraqis is traced by looking at how it intersected with British imperial law, land law, the transnational law of oil concessions and pipeline agreements, criminal law and emergency law. The spaces and semi-colonial enclaves of capitalist production and trade of the oil fields in Kirkuk, the railways in Baghdad and the Port of Basra, and its corresponding governing structures are then detailed in micro-histories with the aim of analyzing the manner in which the oil, port and railway workers organized against the semi-colonial and imperial legality that was imposed upon them. The dissertation ends with an analysis of the massive 1948 Wathba uprising against the revision of the 1930 Anglo-Iraq Treaty. The Wathba, successfully prevented the re-imposition of imperialism in Iraq, and would turn into the seed of the July Revolution in 1958. It is situated here within the wider history of decolonization in the Third World to advance a novel methodological approach of the conjuncture in relation to understanding anti-colonial and labour agency in international legal history. This dissertation illustrates that undertaking a conjunctural analysis illuminates how the agency of the ordinary peoples of the Third World influenced international legal transformation. The doctrine of semi-peripheral sovereignty and all juridical forms of semi-colonialism would be unequivocally rejected through the Iraqi contribution to the drafting of the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples. This dissertation therefore reveals the unique constitutive relationship between international law, imperialism, and capitalism in the semi-peripheral Middle East, while maintaining the importance of integrating the history of class formation, agency and labour into international legal history.

This article proposes a theoretical foundation for measuring legal service value. It aims to support efforts to compare the value of offerings from different law firms, as well as alternative legal service providers. The value of any legal service depends on (i) its effectiveness, (ii) its affordability, (iii) the experience it creates for its clients, and (iv) third party effects (the impact the service-provider has on people other than the client). These four elements of value can be quantified through various metrics applied to firms or entities that provide a given service. Output metrics evaluate either the actual real-world impact of a legal service service, or the written and oral work products of the firm. Internal metrics check for processes or structures within a firm that demonstrably support high value outputs. Input metrics focus on the attributes and credentials of the individuals who provide the service.This article concludes that measuring legal service value is challenging, and may be dangerous if done poorly. Nevertheless, the rewards justify the challenge. Higher quality legal professionalism, more effective and less burdensome regulation, and consumer empowerment are among the payoffs if we can find better ways to measure legal service value.

In this study, the author analyzes, comparatively, the administrative governance functions of legislation that provides accessibility standards in six jurisdictions that also offer legal protection from discrimination to people with disabilities: Australia, the United Kingdom, the United States and the Canadian provinces of Ontario, Manitoba and Nova Scotia. The following governance functions were examined: a) creating accessibility standards, b) enforcing accessibility standards, c) enforcing decisions, d) encouraging compliance, e) raising public awareness (and promoting systemic culture change) and f) public education. The study was conducted with a view to understanding how human rights laws, principles and values can be used to further and strengthen disability access laws on the ground. The federal government has proposed to introduce legislation that will likely establish a framework for the development of accessibility standards within Canada’s federal legislative jurisdiction. This follows on the heels of accessibility legislation being enacted in Ontario (2005), Manitoba (2013) and, most recently, Nova Scotia (2017). Public consultations in 2016-17 for the proposed federal accessibility legislation identified confusion about the practical differences between human rights laws and accessibility laws, and the need for more clarity about how these two laws interact. This study was commissioned to examine the interplay between human rights legislation and accessibility legislation in Canada and internationally. Based on the research findings, several recommendations are made regarding the complete set of governance functions examined. These recommendations include: incorporating a mechanism for public enforcement within the enforcement of accessibility standards, incorporating human rights supports and technical expertise within the development of standards, strengthening the statutory language to ensure an inclusive equality approach, avoiding confusion between reactive and proactive approaches to accessibility legislation by keeping the two systems distinct, and, establishing a Commissioner to take leadership in promoting awareness and systemic culture change, in encouraging compliance and in public education both across the federal government and with the general public. Finally, throughout this report, the author argues that all administrative governance functions in the proposed federal accessibility legislation should be guided by and promote an inclusive equality approach. Inclusive equality is a theoretical framework put forward by the UN that focuses on recognizing the intersectionality of individuals with disabilities in their experiences of disability discrimination. Power relations, access to justice, and the socio-historical context surrounding legal efforts to realize equality by people with disabilities within a reactive regulatory (complaints-based and adjudicative) system should also be considered through this lens.The views expressed in this document are those of the author and not those of Employment and Social Development Canada (Government of Canada) (ESDC).

In most religious accommodation cases, an individual or group seeks to be exempted from a law that restricts their religious practice. The accommodation claim, though, has a slightly different form in conscientious objection cases. In these cases, an individual asks to be exempted not from a law that restricts his/her religious practice, but instead from a law that requires him/her to perform an act that he/she regards as immoral. In many of these cases the claimant asks to be excused from performing an act that is not itself “immoral” but that supports or facilitates (what she/he sees as) the immoral action of others, and so makes him/her complicit in this immorality.