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This article examines two key administrative law decisions of the 2008-2009 Supreme Court of Canada term. Canada (Citizenship and Immigration) v. Khosa 2009 SCC 12 [Khosa] and Canada (Privacy Commissioner) v. Blood Tribe Department of Health 2008 SCC 44 [Blood Tribe]. Following on the footsteps of Dunsmuir, the landmark decision of 2008 that eliminated the patent unreasonableness standard, members of the Supreme Court of Canada in Khosa debated the proper interpretation of judicial review legislation. Specifically, the central issue in Khosa was whether subsection 18.1 (4)(d) of the Federal Courts Act provides a legislated standard of review that is equivalent to patent unreasonableness. While on one level, the debate of the Court focused on how to recognize and interpret legislated standards of review, its underlying theoretical premise engaged fundamental questions about deference, expertise, rule of law and how judicial review of administrative action may be appropriately placed within the broader spectrum of curial oversight.

There are two possible forms of evidence in a custody or access (visitation) case which is determined through adjudication. First, the judge may hear from the adult parties and the witnesses whom they choose to call. Second, the judge may hear "children's evidence," which comes either directly from the child, or from a neutral professional with child-related expertise. To determine the prevalence of children's evidence in Canadian custody and access litigation, the author conducted a quantitative survey of 181 reported decisions from 2009. The central finding was that only 45% mentioned any form of children's evidence. Among the various varieties of children's evidence, assessments (also known as child custody evaluations) were much more common than legal representation of children or direct evidence from children. The paper concludes by contrasting the primacy of the child in custody and access doctrine with the reality that the children involved appear to be effectively silent in the majority of the adjudicated cases.

In this paper, the aim is to assess the procedure of the recent Sri Lankan Presidential Commission of Inquiry and to provide a substantive legal critique of the conflict of interest that troubled the Commission. Divided in four sections, the article provides a general introduction on the recent Commission of Inquiry and its observing body, the act in which it is grounded, the Presidential Warrant that created it, the visible conflict of interests regarding the Attorney General’s Office in serious violations of human rights and the alleged bias in the proceedings of the Commission, especially in the case about the killing of 17 aid workers of an international non-governmental organization and the killing of five students. In conclusion, a case for the existence of the apparent bias will be made, not because of the ‘actual and legal’ role of the Sri Lankan Attorney General, but because of the practical realities of Sri Lanka.

Among the casualties in the ‘war on terror’ is the presumption of innocence. It is now known that four Canadians who were the subject of investigation by the RCMP and CSIS were detained and tortured in Syria on the basis of information that originated in and was shared by Canada. None has ever been charged with a crime. On their return home, all four men called for a process that would expose the truth about the role of Canadian agencies in what happened to them, and ultimately help them clear their names and rebuild their lives. To date, in varying degrees, all four men continue to wait for that 'process'. In this paper, I examine the access to justice mechanisms available to persons who are wrongfully accused of being involved in terrorist activities. Utilizing the case study of one of the four men, Abdullah Almalki, I explore the various processes available to him: (i) a complaint to the relevant domestic complaints bodies, the Security Intelligence Review Committee and the Commission for Public Complaints Against the RCMP; (ii) a commission of inquiry; and (iii) a civil tort claim. Due in large part to the role national security confidentiality plays in these mechanisms, all three models are found to be ineffective for those seeking accountability in the national security context.

Law and Religious Pluralism in Canada seeks to elucidate the complex and often uneasy relationship between law and religion in democracies committed both to equal citizenship and religious pluralism. Leading socio-legal scholars consider the role of religious values in public decision making, government support for religious practices, and the restriction and accommodation by government of minority religious practices. They examine such current issues as the legal recognition of sharia arbitration, the re-definition of civil marriage, and the accommodation of religious practice in the public sphere.

This paper is based on my LL.M thesis, which I successfully defended on June 10, 2009.

This chapter is an excerpt from a study in which an ethnographic methodology was used to explore the concept of "tribunal independence" within access to information and privacy commissions in Canada. This chapter sets out the theory behind the ethnographic method and discusses how it was applied. As not much qualitative empirical research has been done in Canadian administrative law, the paper offers a contribution to the literature and methodologies in the field.

This paper emphasizes the importance of cultural competence for tort law by analyzing the Federal Court’s decision in Haj Khalil v. Canada. Given that this symposium in honour of Rose Voyvodic’s life and work is entitled “Re-Imagining Access to Justice,” this paper asks “how do the principles of cultural competence allow us to think about the facts of the Haj Khalil differently. In particular, what would a cause in fact analysis look like if it were informed by the principles of cultural competence?” My analysis proceeds by “reading the silences” or focusing on the unstated assumptions and unexplored elements of Haj Khalil’s story to bring into focus factors relevant to factual causation which remain largely unexplored or undervalued by the Federal Court. An examination of the facts that framed Haj Khalil`s claim against immigration officials through a culturally competent lens would open the possibility of a different understanding of causation as it arises on the facts of the case. While Canadian courts have emphasized the importance of social context for fair judgment, they have not fully come to grips with the implications of social context for judicial decision-making. This is particularly the case within negligence law which remains vexed by the need to maintain an objective standard while simultaneously recognizing the importance of context and circumstance to particular claims.Cet article souligne l’importance de la compétence culturelle pour le droit de la responsabilité civile délictuelle en analysant le jugement Haj Khalil c. Canada de la Cour Fédérale. Vu que ce symposium en honneur de la vie et de l’oeuvre de Rose Voyvodic est intitulé « Re-Imagining Access to Justice», cet article pose la question «comment les principes de compétence culturelle nous permettent-ils de concevoir différemment les faits de Haj Khalil. En particulier, comment se présenterait la causalité si l’analyse des faits était éclairée par les principes de compétence culturelle?» Mon analyse s’effectue en «interprétant les silences» ou en portant l’attention sur les suppositions inexprimées et les éléments inexplorés du récit de Haj Khalil afin de mettre au point des facteurs pertinents à la causalité factuelle qui restent en grande partie inexplorés ou sous-évalués par la Cour Fédérale. Un examen des faits sur la base desquels était formulée la réclamation de Haj Khalil contre les officiers de l’immigration dans une optique faisant preuve de compétence culturelle ouvrirait la possibilité d’une compréhension différente de la causalité telle qu’elle se présente basée sur les faits en l’espèce. Quoique les cours canadiennes aient souligné l’importance du contexte social pour des jugements équitables, elles ne sont pas complètement venues aux prises avec les implications du contexte social pour la prise de décision juridique. C’est particulièrement le cas pour le droit de la négligence qui demeure embêté par le besoin de maintenir une norme objective tout en reconnaissant l’importance du contexte et des circonstances d’une réclamation particulière.

Even if they did not procure or otherwise contribute to the torture of nationals abroad, Canadian officials owe Canadian nationals a positive duty to prevent torture overseas. This duty is non-delegable in nature.

Tort law can only deliver justice if decision-makers exercise cultural competence; one cannot see the true suffering of the other by looking through a uni-cultural lens. A uni-cultural lens blurs the differences between people’s lived experiences and obscures the decision-maker’s capacity to understand the suffering of others, thereby silencing that suffering. This silencing in turn undermines the aims of tort law. This paper emphasizes the importance of cultural competence for tort law by analyzing the Federal Court’s 2007 decision in Haj Khalil v. Canada. The Federal Court held that immigration officials did not owe a duty of care to Haj Khalil and could not be held accountable for the unreasonable delay in processing her application for permanent residency. It also ruled that the delay could not have caused her losses. I conclude that an examination of the facts that framed Haj Khalil`s claim against immigration officials through a culturally competent lens would open the possibility of a different understanding of causation as it arises on the facts of the case.

This paper emphasizes the importance of cultural competence for tort law by analyzing the Federal Court’s decision in Haj Khalil v. Canada. Given that this symposium in honour of Rose Voyvodic’s life and work is entitled "Re-Imagining Access to Justice," this paper asks "how do the principles of cultural competence allow us to think about the facts of the Haj Khalil differently. In particular, what would a cause in fact analysis look like if it were informed by the principles of cultural competence?" My analysis proceeds by "reading the silences" or focusing on the unstated assumptions and unexplored elements of Haj Khalil’s story to bring into focus factors relevant to factual causation which remain largely unexplored or undervalued by the Federal Court. An examination of the facts that framed Haj Khalil`s claim against immigration officials through a culturally competent lens would open the possibility of a different understanding of causation as it arises on the facts of the case. While Canadian courts have emphasized the importance of social context for fair judgment, they have not fully come to grips with the implications of social context for judicial decision-making. This is particularly the case within negligence law which remains vexed by the need to maintain an objective standard while simultaneously recognizing the importance of context and circumstance to particular claims.

It is just a little over thirty years since the Supreme Court of Canada took Canada’s assessment of personal injury damages on a different tack in the trilogy. In hindsight, the view then taken on damages for non-pecuniary loss was prescient, for it foreshadowed movements now taken legislatively in the United States and Australia, and has parallels in the English Court of Appeal decision in Heil v. Rankin. The Supreme Court did not tackle the issue of lump sum verses periodic payment/reassessment in the trilogy, although it did express its views on this issue many years later. For obvious constitutional and jurisprudential reasons touching on the appropriate limits of judicial activism, and, one suspects, out of personal belief, the Supreme Court did not question the underlying premise of providing compensation for personal injury as a result of tortious conduct. The success of the Supreme Court’s intervention is perhaps best revealed by the fact that apart from some minor skirmishes over automobile insurance, there has never been any real clamour in Canada for tort reform, or an insurance crisis similar to the experience in the United States and Australia.

This article, dealing with the topic of academic governance, is based on the experiences and reflections of a previous chair of a university senate. Grounded in recognition of the ever-increasing turbulence and complexity of the context of universities, it reveals some of the gaps and what gets silenced in the process and explores the paradoxical and inherently political nature of governance. Building on the current literature, the article attempts to extend and differentiate our conceptualization of governance and leadership as critical functions for university performance. In particular, governance is conceived of as the reframing, challenging, and questioning of the leadership vision and interpretation of reality and focuses on both external as well as internal trends over the long term and in ways that maximize responsiveness and strategic opportunities.

Moments of protest and rebellion have always challenged systems of power and authority, but particularly since the rise of the liberal democratic state, laws and legal institutions have mediated the tensions and contradictions between individuals, social movements, and the existing order. In the Canadian context, the ongoing history of law and social protest has been shaped by the evolution of a legal framework inherited from England but continually altered by the demands of settlement and nation building, and more recently, by constitutional rights guarantees. While criminalization of dissent, particularly of street demonstrations and other forms of collective action, remains a key issue in studies of the relationship between law and protest, law has also become a tool of resistance in itself, either in conjunction with or instead of other forms of mobilization.

In the summer of 1993, Clayoquot Sound, a mostly wilderness area of ancient temperate rainforest on Vancouver Island in British Columbia (BC), became the site of the largest civil disobedience campaign in Canadian history. Almost 900 people were arrested during four months of protests over the fate of Clayoquot Sound's rare ecology, resulting in a series of mass trials unique in Canadian law (Hatch 1994). Although there had been intermittent protests over logging and other resource development in the area for over two decades, particularly by the Nuu-chah-nulth First Nation and local environmentalists, a decision by the government of BC in April 1993 to allow clearcut logging in 62 percent of Clayoquot Sound catalyzed the rapid emergence of a preservation movement with both domestic and international dimensions.

This dissertation explores the relationship between social capital and an organizational capability during the earliest phases of emergence. Using an experimental methodology based on a virtual crisis simulation, this research examines the influence of social capital emergence on the evolution of capability performance in real time. Results illustrate the cross-sectional, autoregressive, and cross-lagged change in social capital and capability performance over three measurement intervals, suggesting the presence of a co-evolving relationship between the two constructs. This dissertation contributes valuable insight to the management literature by examining the micro-foundations of organizational capability emergence; demonstrating that the social, relational, and structural context of work is central, especially in its ability to shape collaborative practice and contribute to the collective ability to meet organizational needs. This study demonstrates how the process of social capital emergence occurs, and explains how it relates to the triggering of capability evolution. As a result, this dissertation has generated greater insight into how organizational capabilities grow and evolve, and how social capital contributes to these processes. By better understanding the role that social capital networks play in the emergence and evolution of organizational capabilities, we add some measure of control and predictability to capability evolution allowing organizations to take action to encourage, stabilize, or discourage capability change via specific intervention mechanisms, and