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The overall objective in the court approval process for class counsel fees is to arrive at a fee that is fair and reasonable. Ontario's courts have developed a number of benchmarks in determining fairness and reasonableness, focusing on the success achieved for the class and the work performed by counsel. In a series of cases released in late 2013, however, one Superior Court judge has posited that success achieved and work performed are either unascertainable or useless factors, and has proposed instead that all counsel be awarded a one-third contingency fee in all class action settlements. In this article, I critique that approach, and argue that it is is inconsistent not only with class proceedings legislation, but also out of step with US trends and with case law regarding contingency fees more generally.

Common law countries accord courts considerable latitude to shape common law doctrine, and which has significant impact on private ordering of relationships particularly through the law of torts. In a previous article I sought to illustrate that there were already a number of cases in which minority claimants had sought additional compensation based upon a loss, which, because of a particular cultural practice held by the claimant, was more intensely felt than if a member of the dominant culture had experienced the loss. I suggested that it was quite appropriate to make these awards in furtherance of Canada’s commitment to multiculturalism. However, I also explored the ‘dark side’ of such actions; whether a defendant could argue that a claimant’s adherence to a particular cultural practice or belief would have negative repercussions on their future economic prospects and thus could justify a deduction or negative contingency being applied to any compensation awarded. I argued that courts should not reduce or apply negative contingencies based solely on a cultural practice or belief largely on the basis that to do so would further victimize an individual of an already marginalized group. Because cultural practices and beliefs are subject to constant change in personal conviction and observance over a person’s lifespan, we need to respect the element of personal autonomy entailed by the claimant, rather than to allow the defendant to impose some stereotypical view of what impact a particular cultural belief or practice may have had, or will have, on the claimant.

In R. v. A. (J.), a majority of the Supreme Court of Canada rejected the legal validity of advance consent: consent to sexual acts anticipated to occur during unconsciousness. This article, to the contrary, argues that the legal validity of advance consent should be accepted. First, this article argues that the Criminal Code and jurisprudence are consistent with the legal validity of advance consent. Second, this article argues that, in the circumstance of a sleeping partner, advance consent should be accepted based on policy considerations in relation to sexual autonomy and the administration of justice.

What explains the dramatic contrast between legal services regulation in the United States and anglophone Canada, on one hand, and England/Wales and Australia, on the other? In order to help explain these divergent regulatory choices, and to further comparative analysis, this Essay proposes a taxonomy of theories of legal services regulation drawn from these common-law jurisdictions. Although most jurisdictions employ a combination of approaches, as well as some hybrid methods, the Essay identifies the two dominant perspectives: (1) the professionalist-independent framework, predominate in anglophone North America, and (2) the consumerist-competitive framework found in the common law jurisdictions of Northern Europe and Australia. This theoretical divide, in turn, helps explain why the United States and Canada have largely adhered to a body of self-regulation focused upon aspirations of professionalism and professional independence. Australia and England/Wales, by contrast, have embarked upon market-oriented reform that purports to promote consumer protection and consumer interests. In describing this taxonomy, we recognise jurisdictions sometimes employ hybrid regulatory strategies that combine elements of the professionalist-independent and consumerist-competitive frameworks, such as gatekeeper rules promulgated by the State (as opposed to gatekeeper regulations promulgated by judges or the legal profession). We also acknowledge that regulatory approaches are dynamic and that regulators may very well shift perspectives over time. Nevertheless, organising the claims of commentators and regulators into categories will help to promote analysis and comparison of legal services regulations, as well as to improve the quality of decision-making by those who craft and enforce the rules. We identify, for example, the crucial distinction between how these two approaches construct an understanding of legal services clients. Consumerist-competitive systems identify clients as consumers (who are similar to consumers of other goods and services) and apply this perspective to the particular context of purchasing legal services. In contrast, professionalist-independent systems understand the experience of a legal services client as fundamentally different from that of other consumers and, accordingly, require a wholly distinct regulatory approach.

An introduction to a general discussion of the Canadian courts' approach to religious freedom, which argues among other things that despite their formal commitment to state neutrality in religious matters, the courts have applied this requirement selectively - sometimes treating religion as a cultural identity towards which the state should remain neutral and other times (when it touches upon or addresses civic matters) as a political or moral judgment by the individual that should be subject to the give-and-take of politics. Behind the courts' uneven application of the neutrality requirement lies a complex conception of religious commitment in which religion is viewed as both an aspect of the individual's identity and as a set of judgments made by the individual about truth and right. The challenge for the courts is to find a way to fit this complex conception of religious commitment into a constitutional framework that that relies on a distinction between individual choices or commitments that should be protected as a matter of individual liberty, and individual attributes or traits that that should be respected as a matter of equality.

A recent request for religious accommodation at York University has generated controversy not just about the merits of the particular claim but also about the general practice of religious accommodation under human rights codes and the Canadian Charter of Rights and Freedoms. The issue in this case exposes some of the tensions in our understanding of religious freedom and religious equality – and more particularly the requirement of religious accommodation. “Religion” (religious belief and practice) does not fit comfortably within the model of equality rights or anti-discrimination laws and seeing why this is so might help us to better understand the conflict in this case – the university’s decision to accommodate and the public reaction to that decision. The first difficulty is that religious adherence may be viewed as both an individual commitment and a collective identity. The second, and related, difficulty is that religious belief systems or traditions may be seen as both a set of practices and a set of beliefs about truth and right, which sometimes have public implications.

‘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.

There is a strong case to be made that racist, and other forms of bigoted, speech, even when it is not so extreme that it breaches general hate speech laws, should be prohibited on campus. A commitment to academic freedom supports the free and open exchange of ideas and information but also certain standards of communicative engagement – most notably the treatment of others in the academic community as interlocutors, as conversation partners who should be addressed and heard. Racial (and other) stereotypes and insults are inconsistent with the educational mission of the school and the idea of membership in an educational community. More generally, the injury of racist speech may be more acute in the closer environment and tighter community of the campus. However, the regulation of a broad category of racist speech raises a variety of challenges. In addressing the question of the fair and appropriate limits (or forms of regulation) of speech on campus, I will consider the case of Israel Apartheid Week [IAW], an event that takes place each year on several Canadian campuses, and more particularly whether IAW (and its claim that Israel is an apartheid state) is anti-Semitic and appropriately banned from campuses. The recent report of the Canadian Parliamentary Coalition to Combat Anti-Semitism [CPCCA] argues that IAW is anti-Semitic. However, the CPCCA claim appears to rest on the politically contestable view that the existence of Israel is vital to the continued existence of the Jewish people and that any criticism of actions taken by Israel to ensure its viability or any questioning of Israel’s religious ethnic identity constitutes an attack on the Jewish people. But these are politically contestable claims – about the link between nation and state, the treatment of religious-ethnic minorities, and the actions necessary ensure the viability of the state … The challenge to these claims must be treated as a legitimate part of political debate and cannot be excluded from campus.

Almost seventy years after the Universal Declaration of Human Rights, the birth of Israel, and the beginning of the Palestinian naqba (all in 1948) it is now clear that international law has fallen short of its promise to alleviate suffering, hold transgressors to account, and to encourage peace in the Middle East. Even John Humphrey, a drafter of the Universal Declaration of Human Rights, came to despair the efficacy of international law in Israel and Palestine. “He went there thinking that the proper application of the rule of law and respect for human rights could resolve the situation and came back thinking nothing could (since the debate was not a rational one)” (Hobbins 2006). Taking Humphrey’s despair over international law’s ability to guide behaviour in Israel and Palestine as its starting point and drawing on Stanley Cohen’s landmark book, States of Denial: Knowing about Atrocities and Suffering, this chapter argues that international law has fed into a process of denial maintenance in Israel, creating the backdrop against which Israeli leaders deny Palestinian suffering.

At the same time that Canadian public law jurisprudence has grappled with some very key cases on bias, a vibrant debate has also raged over the meaning and scope of the notion of impartiality within political and moral philosophy. Spurred by Rawls’ view of liberalism and culminating in deliberative democracy, this debate evolved over a span of more than four decades, yet, rarely, if at all, is this philosophical literature referred to in the public law jurisprudence dealing with impartiality. This paper inquires into whether the debates surrounding impartiality in political and moral philosophy and those in Canadian public law share common ground. In what ways might this literature and jurisprudence speak to one another? The author argues that knowledge of the two debates challenges us to reconsider the judicial methods by which decision-making impartiality is established. This is particularly so in administrative law. The author proposes a theory of grounded impartiality to be used in Canadian administrative law. The theory requires courts and administrative actors to pay close attention to factors such as administrative actor provenance, shared and local understandings, and the possibility for genuine discourse, to allow for more well-informed, meaningful, and transparent decision-making about allegations of bias. While these factors have been advocated by certain political and moral philosophers as an ideal means for assessing an individual’s claim to the good life, a parallel approach has faced ambivalent reception in Canadian administrative law impartiality jurisprudence.

This chapter provides a historical sketch of the events leading to the Georgia-Russia conflict of 2008, including South Ossetia’s de facto independence and gradual absorption by Russia. It then considers the legal status of South Ossetia under Soviet, Georgian and international law, and analyses the findings of the Independent International Fact-Finding Mission on the Conflict in Georgia. While the chapter concludes that South Ossetia’s right to self-determination does not, at this stage, include a right to secession, it argues that the emphasis now should be on restoring confidence between the parties and addressing humanitarian issues. This is a precondition for genuine negotiations over status within the international law framework on self-determination.

Many scholars have theorized that judicial review can provide a “friendly hand” to the elected branches by enforcing legislative bargains, taking on politically difficult decisions, clarifying vague or conflicting legislation, and/or buttressing federal power against state actors. Other scholars contend that empowering the judiciary to have an active role in policymaking has undesirable consequences – to these scholars, the judicialization of politics unwisely reframes the policy debate in legal terms, disempowers social movements by removing issues from traditional political contestation, and generates public and political backlash. This paper addresses these claims by examining an area where the courts, through either actively declining jurisdiction or passively acquiescing to executive power, have deliberately abstained from claiming a role in policymaking. We examine the negative space caused by such willful “un-juridification” by looking at American immigration policy.

English Abstract: Clinical work in law offers important opportunities for students to learn critical, reflective and politicized approaches to legal identity and practice. Such an approach is most meaningful when it is engaged by supervising lawyers and social workers in a clinical placement. The authors of this article, the Academic Clinic Director and Executive Director of two Windsor-based clinic programs, offer context, perspective and examples of how critical pedagogy (influenced by, but distinct from, critical legal studies) provides a roadmap for supervising lawyers and the programs in which they work. The paper briefly sets the context of the authors' teaching and practice. The authors then set out some of the interested parties in clinical legal education, including law schools, communities, students and clients. The paper concludes with ideas on how a clinical program might set out to strengthen critical pedagogy in the supervisory relationship.

The past decade has seen an upsurge in temporary foreign worker (“guest worker”) programs, which have been described as being “close to slavery” because they indenture the worker to work for a specific employer to maintain their visa status and limit access to permanent residence in the host country. The programs exemplify the dilemma between sovereignty and universalism. States claim to support universal labour rights but maintain absolute sovereignty over the legal status of foreign workers, providing limited, differentiated rights. The paper offers a normative argument, supported by empirical data from Canada, Hong Kong, United States, and Israel, that citizenship status continues to be paramount for accessing even universal (personhood-based) labour rights for these workers.

International criminal law, like all areas of law, must continue to evolve to reflect contemporary realities. This article demonstrates that the current subject matter jurisdiction of the International Criminal Court under the Rome Statute is very much an artefact of history, and it argues that the historical and reactive line that the statute draws between "core" international crimes and other serious international or transnational crimes is inadequate. In order to ensure that international criminal law continues to evolve in a reasoned and principled manner, states need to better articulate the criteria by which conduct is included within the category of "the most serious crimes of concern to the international community as a whole." Using a primarily inductive approach, the article considers a number of such criteria that have been considered over the years. It concludes that, when assessed in the context of their systematic and organized perpetration, many other serious international and transnational crimes raise some of the same concerns that underpin the current core international crimes, suggesting that it may be time for the international community to consider redrawing the line.

Commissioned by the Association of Family and Conciliation Courts, Ontario Chapter.

There has been a proliferation of writing about commercial litigation funding (“CLF”) over the past few years, in both the academic and popular press. Too often, the literature presents a narrative of extremes. Commentators are either wholly against CLF on the basis that it gives rise to unethical behaviour and the commodification of our civil justice system, or wholly in support of it on the basis that it promotes access to justice and levels the playing field. A conference held at the University of Windsor Law School in July, 2013 brought together leading scholars, judges and lawyers from the United States, Australia and Canada to engage in a nuanced discussion about CLF that mediated between these extreme polarities. The first conference of its kind in Canada, discussion was focused on four themes: regulation, access to justice, ethics and impacts on class actions. In this article, the conference organizers, Dean Camille Cameron and Professor Jasminka Kalajdzic, survey the principal issues in the debates around CLF, summarize the key points in the conference papers, and identify the basic principles that might inform the regulation of litigation funding in Canada and elsewhere.

In this article, I investigate the nature of exceptions to copyright infringement or users' rights. Are exceptions to copyright infringement rights or privileges? Are they mandatory? While copyright users' rights and interests have triggered interest and debate amongst scholars, relatively less attention has been given to defining their precise nature, and on the consequences of the main characteristics of exceptions to copyright infringement on copyright law and policy. I examine the interplay between the users' rights set out in the Copyright Act and how they can be altered or overridden by non-negotiated standard end-user agreements and TPMs. To this end, I refer to a sample of non-negotiated standard terms of use for the online distribution of books, musical recordings and films. I investigate the nature of exceptions to copyright infringement, including through Hohfeld's theory of jural correlatives. I look at the policy considerations behind these questions and conclude by reflecting on the damaging effects of the uncertain nature of users' rights on the coherence and, ultimately, the legitimacy of copyright law.

What does access to justice have to do with legal services regulation? Can we make it easier for people to defend their legal rights and pursue social justice by liberalizing rules about the provision of legal services? This brief paper will begin by reviewing the economic argument that legal services regulation impedes access to justice. Although this argument has strong appeal in theory, deregulatory reforms have not always delivered their accessibility benefits which the economic critique promises. Moreover, economic criticism of legal services regulation tends to assume that lawyers are simply market actors, as opposed to members of an independent profession whose maintenance has value to clients and to the public. The paper will therefore conclude by suggesting that empirical inquiry using a new legal realist (NLR) methodology can make a constructive contribution to this debate.

Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (GLP) by Paul Schiff Berman is a legal pluralist’s contribution to the study of local and global regulation. In a tour de force, Berman articulates clear and concise arguments in support of adopting a pluralist lens (coined as a cosmopolitan pluralist perspective). He magnificently traverses the multiple and complex bodies of literature that seek to understand the various inchoate regulatory regimes, actors, norms, and processes, to simply state that we must harness the benefits of the overlapping legal authorities. The overlapping legal authorities for Berman produce legal hybridity, which is a product of globalization(s).