Search

This review essay considers the universality of dilemmas and tensions that arise in class action litigation, wherever practised. It does so by exploring the evolution of the Australian class action in its doctrinal, political and historical dimensions, as recounted in Michael Legg and James Metzger’s edited collection of papers, The Australian Class Action: A 30-Year Perspective. While the book is rooted in the Australian experience, it lays bare common themes across jurisdictions, such as the unique role of the judge in a class action, the challenges to effective representation, and concerns about the commodification of litigation.

While much of Canada’s early commitment to religious freedom was simply a pragmatic compromise to ensure social peace and political stability, the Supreme Court of Canada in a series of judgments that pre-dated the Charter sought to articulate a principled account of religious freedom as an “original freedom” that is an important “mode[] of self-expression” and “the primary condition[] of the community life”. This understanding of religious freedom shaped the Supreme Court of Canada’s initial reading of freedom of conscience and religion protected by s. 2 (a) of the Canadian Charter of Rights and Freedoms. However, the story of religious freedom in Canada is not simply that of a linear progression from the pragmatic tolerance of religious minorities to the principled protection of the individual’s religious freedom. In its subsequent s 2 (a) decisions, the Court began to read freedom of religion as a form of equality right that requires the state to remain neutral in religious matters. The state must not prefer the practices of one religious group over those of another and it must not restrict the religious practices of a group unless it has a substantial public reason to do so. Underlying the Court’s commitment to religious freedom is a recognition of the deep connection between the individual and her/his spiritual commitments and religious community and a desire to avoid the marginalization of minority religious groups. Concerns about inclusion and social peace that lay behind the extension of religious tolerance in Canada’s early history continue to be important in the contemporary justification and interpretation of religious freedom. The Court’s commitment to state neutrality in religious matters requires it to distinguish between the private sphere of individual or group spiritual life and the sphere of public secular life. However, the line between these two spheres is contestable, moveable, and porous.

An article from Windsor Yearbook of Access to Justice / Recueil annuel de Windsor d'accès à la justice, on Érudit.

Migrant farmworkers are a ubiquitous but invisibilised, expropriated and exploited component of the global agricultural economy. Their conditions took centre-stage during the COVID-19 pandemic. Fear of production disruption in the migrant labour-intensive sectors led to foreign workers being deemed ‘essential’ in many countries, and exceptional procedures and regulations were instituted that further increased their exploitation, illnesses and deaths. However, the pandemic has not merely exposed the long-established structures of racialised exploitation and expropriation in the domain of farm work. Although it exacerbated the precariousness of the living and working conditions defining the reality of migrant farm workers, there is evidence that the pandemic also strengthened farmworkers' individual and collective consciousness, along with forms of organisation and resistance. The symposium ‘Migrant Farmworkers: Resisting and Organizing before, during and after COVID-19’ explores two dimensions reflected in migrant farmworkers' realities during the pandemic. First, the contributions look at the general conditions defining power structures and material outcomes within the political economy of agriculture before and during the pandemic. Second, they explore the conditions under which resistance and solidarity emerged to question established structures of exploitation.

Article 24(1) of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) provides a commitment to the full development of human potential and of the student’s sense of dignity and self-worth, as well as a commitment to develop the student’s personality, talents, and creativity, along with their mental and physical abilities, to their fullest potential. Article 24(5) builds on this commitment by guaranteeing persons with disabilities access to general tertiary (or post-secondary) education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others. Yet, on the ground, within educational institutions, disabled post-secondary students continue to face barriers to education every day.In Canada, the right to post-secondary education for persons with disabilities is protected through various domestic human rights instruments and supplemented by the CRPD. At the same time, obstacles for disabled students exist at different stages of the experience of post-secondary education. This article uses a case study to identify the barriers experienced by students with disabilities on the ground despite the long-standing legal frameworks that ensure post-secondary education for persons with disabilities in Canada. It further examines how law and policy may be improved to ensure access to post-secondary education for students with disabilities. This article begins with a discussion of the legal frameworks that exist in Canada to protect the right to post-secondary education. Part II provides an overview of the types of barriers that students with a variety of disabilities have faced during the course of completing post-secondary studies. The barriers are identified through an analysis of decisions of Canadian human rights tribunals and courts rendered between 2014 and 2021.These barriers to pursuing post-secondary education are identified in relation to the admissions process, in-program learning, and the pursuit of remedies. In Part III, I draw from an analysis of these contemporary decisions to argue that the right to post-secondary education for disabled students in Canada would be strengthened if more inspiration were drawn from Article 24 of the CRPD and instituted a human capabilities approach.

In the absence of rules permitting lawyers to charge a contingency fee, complex, expensive litigation on behalf of litigants with small value claims requires external funding. Even where contingency fees are permitted, as is the case in all Canadian jurisdictions and in a handful of EU member states, the possibility of adverse costs and varying levels of risk tolerance and financial capacity among law firms still leave a gap for external funding. Legal expense insurance has had limited success. While the commercial Third Party Litigation Funding (TPLF) industry continues to grow in many EU collective redress regimes, its not-for-profit cousin has received far less attention. Yet, the latest EU Directive envisions the possibility of public funding “to ensure that the costs of the proceedings related to representative actions do not prevent qualified entities from effectively exercising their right to seek [injunctive and redress] measures.” In this brief paper, I aim to contribute to discussions about TPLF in Europe by highlighting a viable alternative to commercial funding entities: not-for-profit litigation funders. In Canada, two such public funders have existed for decades. In the first part of this paper, I explain the purpose of Ontario's Class Proceedings Fund and its historical impetus. I then describe the structure and functioning of the Fund. In the third part of the paper, I explore some of the satellite litigation that has involved the Fund. Finally, I discuss both its successes and its limitations. In the end, the Fund serves both as inspiration and cautionary tale for potential not-for-profit funding entities in EU Member States.

Which individuals should count in a welfare-consequentialist analysis of public policy? Some answers to this question are parochial, and others are more inclusive. The most inclusive possible answer is ‘everybody to count for one.’ In other words, all individuals who are capable of having welfare – including foreigners, the unborn, and non-human animals – should be weighed equally. This article argues that ‘who should count’ is a question that requires a two-level answer. On the first level, a specification of welfare-consequentialism serves as an ethical ideal, a claim about the attributes that the ideal policy would have. ‘Everybody to count for one’ might succeed on this level. However, on the second level is the welfare-consequentialist analysis procedure used by human analysts to give advice on real policy questions. For epistemic reasons, the analysis procedure should be more parochial than ‘everybody to count for one.’

Governments have implemented different interventions and response models to combat the spread of COVID-19. The necessary intensity and frequency of control measures require us to project the number of infected cases. Three short-term forecasting models were proposed to predict the total number of infected cases in Canada for a number of days ahead. The proposed models were evaluated on how their performance degrades with increased forecast horizon, and improves with increased historical data by which to estimate them. For the data analyzed, our results show that 7 to 10 weeks of historical data points are enough to produce good fits for a two-weeks predictive model of infected case numbers with a NRMSE of 1% to 2%. The preferred model is an important quick-deployment tool to support data-informed short-term pandemic related decision-making at all levels of governance.

Editors' Note: Inaugural Issue

When can a trier of fact take into account the absence of a complainant's motive to lie in assessing credibility in sexual assault cases. How much weight can be attributed to that absence? Resolution of these questions has led to a surprisingly sizable number of appellate cases. R v Gerrard 2022 SCC 13 is now the leading case on the issue. It confirms somewhat cryptically that the absence of evidence of a motive to fabricate can be considered in assessing credibility. Clarity on the issue is still needed. In particular, what consitutes "proved absence" and/or evidence of an absence of motive. This piece argues that courts need to start afresh. If we better understand what courts are trying to get at by referencing the issue of motive as being "proved"and, we apply the everyday rules of evidence, we can escape from this confusing trap of trying to fit the issue into a particular box. When the cases talk about proved absence (or presence) of motive, the phrase should be interpreted to mean that there is a sufficient and compelling evidentiary basis or foundation to allow for the conclusion or inference to be drawn. After setting out how the ordinary rules of evidence and policy support this principled approach to the issue, the article offers some model instructions on the issue.

This paper brings forward Justice Pal's dissenting opinion at the Tokyo Tribunal to add to Third World Approaches to International Law (TWAIL) literature on international criminal law and the rules of evidence and procedure. It is part of a TWAIL effort to scrutinize the everyday practices of international prosecutions through procedural and evidentiary rules. By locating and situating Justice Pal's reasoning within the broader academic literature on dissents in international criminal law, it is possible to illustrate how and why Justice Pal's views were obscured as a relevant dissent. From this vantage point, this paper pursues Justice Pal's legacy as it relates to the rules of evidence and procedure in the International Criminal Tribunal for the Former Yugoslavia and International Criminal Tribunal for Rwanda. It traces the evolution of the judicial power to draft and amend these rules, and examines the impact of these decisions on the everyday functions of the tribunals and how truth is determined.

Feminist law and policymakers have been inspired by collectively generated experiences of emotion that help to shape what counts as justice and injustice in campus sexual violence cases. Focusing on events surrounding the Dalhousie University Faculty of Dentistry in 2014–2015, this article explains how emotional incitements in the case contributed to an infrastructure that supported formal and specifically carceral responses to campus sexual violence. Correspondingly, this article explains why alternative modes of legal and political formation that challenged the premises of the formal law, including restorative justice, were misread by some commentators as a form of “weak justice” and therefore outside the bounds of feminist action. The central claim of the article is not that particular emotional reactions are right or wrong, but that feminist law and policymakers should reflect on and assess their political force. Considering the ways that emotions are mobilized reveals the benefits and drawbacks of engaging with law in ways that feel emotionally gratifying and therefore politically necessary, but which can lead to harmful consequences that contradict feminist goals.