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The constantly developing norm of access to justice is moving to occupy a central place in the administrative justice system,  prompting a need to rethink the values that should serve to animate the system. This article offers a framework for the administrative justice system in Canada, one that firmly and explicitly entrenches the value of access to administrative justice within it. It reflects on the requirements to achieve access for a significant population of its users – namely, equality-deserving communities. The author looks at the historical reasons why access to justice has been a concern for equality-deserving communities, and introduces the concept of social equity from the discipline of public administration as a tool to assist in addressing some of the structural and systemic access-to-administrative-justice challenges experienced. The author rearticulates the foundational values of administrative law in Canada to incorporate access to administrative justice as a distinct value, one that engages with access-to-justice barriers relating to structural and systemic inequality. In doing so, she details five core principles that underpin the new value of access to administrative justice and cites examples of recent tribunal reform projects in Canada that illustrate promising innovations in that direction. Finally, the author describes briefly the ways in which institutional design and tribunal culture can contribute to enhancing the value of access to administrative justice within the broad, on-the-ground context of different administrative actors. Overall, this article presents an analysis of the dynamic interaction between marginalized populations and the administrative state in order to move forward judicial and other contemporary discussions about access to administrative justice and how it should be defined.

This article analyzes interview data from nine Black criminalized individuals and nine defence lawyers (five white, three Black, and one Arab) about the utility of heightened race visibility in sentencing proceedings. The data reveals a schism between these groups, reflecting different responses to what I refer to as “the paradox of visibility.” For Black people, this paradox occurs when an emphasis on race may simultaneously have a deleterious and ameliorating impact on sentencing. Defence lawyers and judges laud the ameliorative potential of race visibility, which obscures the genuine concern shared by criminalized Black individuals about how they believe their Blackness betrays them in the criminal sentencing context. In this regard, the article explores ethical concerns arising from this paradox. It also argues that race-based strategies at sentencing are not a no-cost or low-cost proposition. Indeed, from the criminalized research participants’ point of view, the cost is not only the risk that an emphasis on race may result in a higher sentence, including longer and harsher custodial sentences, but also an affront to their dignity. In contrast, the defence lawyers strongly supported increased racial visibility to combat what they saw as judicial and prosecutorial intransigence to grapple with race in sentencing proceedings. These perspectives are critical for sentencing judges tasked with sentencing Black individuals and for lawyers who are developing and deploying legal strategies to assist their Black clients.

To what extent can statements made by an applicant, intrinsic to a patent specification, be accepted as facts? Is this question context-dependent, or is there a hard-line rule that applies across the board? Should it matter what patent law issue is involved: patentable subject matter; obviousness; claim construction? Perhaps most importantly, why does this question matter? What is at stake? This piece argues that there should be a judicial apprehension towards recognizing the blanket proposition that applicant statements within a patent specification can be accepted as matter of fact supporting a determination regarding common general knowledge. Specifically, there should be a judicial apprehension towards endorsing the acceptance of statements made within a patent specification as factual determinations regarding the state of the art or common general knowledge of a hypothetical skilled artisan, when such assertions lack reference to any factual source that is extrinsic to the patent document. Broadly, this piece argues that the law/fact distinction should be drawn along the corresponding intrinsic/extrinsic distinction.

The Supreme Court has chosen to exclude from intervention the voices of those directly impacted. This exclusion rehearses Canada’s longer history of excluding sex workers.

Using insights from Critical Race Theory (“CRT”), this article illustrates how Canada’s proportionality-driven criminal sentencing structure (re)produces, invigorates, and sustains pernicious race-based discourses. Indeed, the concept of proportionality can reinforce archaic norms and notions about Black bodies’ status, belonging, identity, and worth. Moreover, the demands of proportionality, with its fixation on calibrating blame, can distort and pathologize Black lives in a perverse attempt at sentence mitigation, resulting in what I refer to as the paradox of visibility. The article uses an analysis of Impact of Race and Culture Assessments (IRCAs) reports to explore paradoxical race visibility. This allows us to better comprehend and redefine the impact of incorporating race awareness into the criminal sentencing process, which can have positive and negative consequences. Indeed, introducing race at the sentencing phase is a challenging and perhaps even a paradoxical manoeuvre—but one that may also be logical insofar as we operate within the cruel illogic of white supremacy.

A decade after the Toronto G20 summit, two mass class actions brought against the Toronto Police Service (TPS) by people caught up in kettles and/or imprisoned at a temporary detention center have been settled. After a detour to the Supreme Court of Canada – the TPS unsuccessfully attempted to have the lawsuits dismissed – a settlement which includes $16.5 million in financial compensation, expungement of arrest records, and “a public police acknowledgement regarding the mass arrests and the conditions in which protesters were detained” has been reached. The settlement still needs to be approved by Ontario’s superior court in October 2020, but there is no doubt that it is a victory – a rare example of police being held at least somewhat accountable in the aftermath of social movement repression. Beyond the TPS’s “acknowledging” of their misdeeds, however, it is worth thinking through the potential impact of this settlement – and especially the specifics of the TPS’s “commitment to detailed changes regarding policing of future public demonstrations” – on street protest and broader organizing in Toronto.

This article documents and explores the history of the e-scooter ban in Toronto, Ontario, Canada as a pathway to examining broader issues concerning the eradication of accessibility barriers in public spaces for pedestrians with disabilities and respectful uses of consultation to develop disability-inclusive regulations. The use of e-scooters poses a particular dilemma to accessibility for persons with disabilities. On the one hand, the concept of disability contemplates attitudinal and environmental barriers, as noted, for example, in the Preamble of the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD). Attitudinal and environmental barriers have traditionally stemmed from interests that are inherently opposed to the collective interests of disabled persons. Examples include attitudes that project stigma against persons with disabilities or a focus on seeking to preserve historical features of the built environment for their aesthetics, without consideration for their accessibility or functionality for disabled persons. They have also generally originated in periods of historical marginalization or exclusion of persons with disabilities. By contrast, e-scooter debates and connected debates regarding the regulation of micromobility vehicles, contain at least one dimension that could very well be shared with persons with disabilities—that is, the preservation of the environment. E-scooters are also a phenomenon of contemporary disability exclusion: policies concerning environmental sustainability, including those promoting e-scooters, are being developed contemporaneously with growing international and national legal recognition of disability rights. These factors render arguments over appropriate regulation of the use of public spaces more complex as, within those arguments, one sees two competing positive policy directions that need to be addressed: the rights of pedestrians with disabilities and environmental sustainability. This article concludes with theoretical and practical suggestions for strengthening regulatory policymaking to address these and other complex intersectional issues of accessibility policy design.

This article provides guidance concerning alternative dispute resolution (ADR) options for ownership disputes of inventions conceived within universities. Focusing on an interest-based approach to mediation, this article begins by summarizing the key principles of interest-based mediation. The objective of the interest-based approach to dispute resolution is to explore options for a negotiated resolution that satisfies the interests of all parties. For a negotiated resolution to be the best option for all parties to the dispute, it must present a resolution more favourable than each party’s best alternative to a negotiated resolution (“BATNA”). A BATNA revolves around the outcomes a legal resolution (i.e., litigation) might provide compared to possible negotiated resolutions. Accordingly, a substantial portion of this article focuses on summarizing some of the legal issues at play in most invention ownership disputes. The article then turns to the university context. One of the central objectives of this article is to highlight how the contemporary university is a unique segment of today’s society, in that it is an eclectic mix of economic, social and legal values. The contemporary university rests on neither end of the economic spectrum. It is neither a marketplace driven solely by free market relationships, nor is it a social institution motivated by public interest only. Approaching university policymaking, and specifically, invention ownership policy, entirely from either end of this spectrum is bound to result in disputes. Accordingly, the paper argues that those interested in seeking creative avenues for mitigating against and resolving ownership disputes of inventions must remain sensitive to this reality. Keywords: patent, mediation

The fight for Palestinian freedom—as well as for Canadian democracy—will be long and arduous. And it will require our collective resistance to evolving tactics of censorship. The TMU law students, and all the students setting up encampments around the world (including in Israel), have had an immense impact.

As much attention is turned to regulating AI systems to minimize the risk of harm, including the one caused by discriminatory biased outputs, a better understanding of commercial practices that may or may not violate anti-discrimination law is critical. This article investigates the instances in which algorithmic price personalization, i.e., setting prices based on consumers’ personal information with the objective of getting as closely as possible to their maximum willingness to pay (APP), may contravene anti-discrimination law. It analyses cases whereby APP could constitute prima facie discrimination, while acknowledging the difficulty to detect this commercial practice. We discuss why certain commercial practice differentiations, even on prohibited grounds, do not necessarily lead to prima facie discrimination, offering a more nuanced account of the application of anti-discrimination law to APP. However once prima facie discrimination is established, we argue that APP will not be easily exempted under a bona fide requirement, given APP’s lack of a legitimate business purpose under the stringent test of anti-discrimination law and given its quasi-constitutional status. An additional contribution of this article is to bridge traditional anti-discrimination law with emerging AI governance regulation, resorting to the gaps identified in anti-discrimination law to show how AI governance regulation could enhance anti-discrimination law and improve compliance.

Canadian universities’ requests for court orders and police enforcement to clear Palestine solidarity encampments raise questions about the legal status of encampments and the use of injunctions.

The Olympics are just around the corner, and this summer in Paris, officials are planning a suite of security tools bolstered by AI — from spotting abandoned packages to predicting the movement of crowds. But as AI security rolls out for major public events, and at our borders, how do we balance safety, security, and privacy and guard against this becoming the new normal?

The Canadian government has a long history of regulation, exploitation, and violence against lesbian, gay, bisexual, trans, queer, and two-spirit (LGBTQ2) people. One of the most painful chapters in this history is the “LGBT Purge,” a term that refers to the expulsion of LGBTQ2 service members and employees from the Canadian Armed Forces, Royal Canadian Mounted Police, and federal public service between 1955 and 1992. The LGBT Purge was the subject of a class action lawsuit filed in 2017 that resulted in a settlement agreement in 2018. On a parallel track to the settlement, Prime Minister Justin Trudeau issued a formal apology for the government’s history of state-sponsored discrimination against LGBTQ2 people in 2017. In this article, I consider these events from a legal historical and queer theoretical perspective. I focus on the potential of the settlement to promote reconciliation with LGBTQ2 people, contextualizing the settlement in light of neoliberal and homonationalist pressures on the class members to settle the past and forgive legacies of homophobic violence that continue to be felt today. Praiseworthy as the settlement terms might be, I conclude by arguing that forgiving the government’s history of discrimination against LGBTQ2 people is an historical impossibility.

The current focus on the overhyped future existential threats of AI, for example, distracts us from the harms already being perpetuated by AI systems, like discrimination, environmental damage, loss of

Class counsel fees and their relationship to class member compensation are among the most important – and most controversial – statistics used to evaluate the normative outcomes of the class action mechanism. The perception that class attorneys reap windfall rewards while the class ‘gets nothing’ is persistent among class action critics. The ratio of legal fees to settlement funds captures the critical trade-off between counsels’ entrepreneurial incentives to pursue lucrative claims and the agency challenges endemic to these proceedings. The authors’ analysis uses new data and novel econometric methods to explore the nature of class action fee ratios in Ontario for both economics and legal audiences. To start, we calculate “all-in” fee ratios -- lawyer fees plus disbursements divided by settlement amounts in Ontario -- of 25.0% on average and at the median. Next, we show that judges are sensitive to windfall gains and sweetheart deals, problems associated with large awards, and adjust fees based on settlement size. These data and estimates contribute to a better understanding of judicial economy and access to justice in practice, the principal arguments in favour of class proceedings.

The most controversial of the recent amendments to Ontario’s Class Proceedings Act is the addition of two requirements to the certification test: to meet the preferable procedure criterion, s. 5(1.1) requires that common issues in the litigation must now “predominate” over individual issues, and a class action must be “superior” to all other forms of resolution. The importance of the interpretation of Ontario’s new certification test to the continued viability of class actions in the province merits a thorough and rigorous analysis of s. 5(1.1). The language of predominance and superiority is strikingly similar to requirements that have long applied to US class actions for monetary damages. As courts in Ontario begin to grapple with the new predominance and superiority requirements, however, the authors caution against turning to American jurisprudence for guidance. Several important structural differences between the Ontario and American class action regimes, as well as different constitutional considerations and a variety of approaches within US case law diminish its utility. Instead, the authors examine the history and language of the amendments to propose an interpretation of the predominance and superiority requirements that is informed by Canada’s own procedural and constitutional framework and that avoids the pitfalls of legal transplants.

Price is often the single most important term in consumer transactions. As the personalization of e-commerce continues to intensify, the law and policy implications of algorithmic personalized pricing i.e., to set prices based on consumers’ personal data with the objective of getting as closely as possible to their maximum willingness to pay (APP), should be top of mind for regulators. This article looks at the legality of APP from a personal data protection law perspective, by first presenting the general legal framework applicable to this commercial practice under competition and consumer law. There is value in analysing the legality of APP through how these bodies of law interact with one and the other. This article questions the legality of APP under personal data protection law, by its inability to effectively meet the substantive requirements of valid consent and reasonable purpose. Findings of illegality of APP under personal data protection law may in turn further inform the lawfulness of APP under competition and consumer law.

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.