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In the ubiquitous Hollick decision, the Supreme Court of Canada offered what has become the definitive articulation of the evidentiary burden to be met for an action to be certified as a class proceeding: The plaintiff must show, “some basis in fact,” for each of the certification criteria, other than the criterion that the pleadings disclose a cause of action. Several 2010 certification decisions from three different provinces illustrate the continuing judicial tinkering with the standard of proof to be met on certification. In this brief article, I analyze these three recent decisions, reconcile them with established principles of the law of evidence, and highlight the rapidly widening difference in approaches between Canadian and U.S. certification jurisprudence, including the pending Wal-Mart decision.

In recent years, the Canadian courts have been confronted with a number of cases in which freedom of religion and sexual orientation equality appeared to clash. Specifically, the courts have had to decide whether religiously motivated anti-gay expression violated a provincial human rights code restriction on hateful expression (Owens v. Saskatchewan 2006). They have also had to rule on whether a human rights code ban on discrimination in the provision of services to the public was breached when a business owner refused to provide services to a gay advocacy group (Ontario v. Brillinger 2002). And, in two judgements, Trinity Western University v. British Columbia College of Teachers (2001) and Chamberlain v. Surrey School district No. 36 (2002), the Supreme Court of Canada dealt with the competing claims of sexual orientation equality and religious freedom in the public schools.

This article examines the judicial treatment of complaints of discrimination from workers with mental health issues. Equality protections promise full inclusion in social, work and community life. The principle of inclusion is understood in three inter-related parts: inclusion in the workforce, inclusion in decision-making and, in the most broad and prospective sense, inclusion in Canadian society. The current framework of equality protections has not effectively addressed these core values of inclusion for workers with mental health issues. The workplace continues to be a site of discrimination and harassment. Barriers prevent workers with mental health issues from getting or keeping employment, discourage their participation in decision-making, and entrench the devaluation, isolation and exclusion of persons with mental health issues. Accommodative measures must be alive.

In the early morning hours of September 6, 2008, S.B., a twenty-seven-year old African Canadian, experienced the depths of depravity at the hands of five officers with the Ottawa Police Service. She was arrested unlawfully for effectively questioning why she had been stopped by the police, taken to the police station where she was assaulted and strip searched in the presence of a number of male officers, one of whom cut off her shirt and bra with a pair of scissors, and then left half-naked in a cell for over three hours. When she left the police station, she found herself charged with assaulting a police officer. The case was reviewed on a number of occasions by senior prosecutors who believed that the prosecution of S.B. was in the public interest. Two years after the incident, a trial judge stayed the charge concluding that it was a "travesty" and that what happened to her was an "indignity to a human being."

This paper explores Canadian law societies’ involvement in human rights protection and promotion abroad. The authors identify strategies for provincial law societies to contribute overseas, and point out the challenges with adopting such an international focus.

The Special Court for Sierra Leone has been noted for becoming the first international court to convict accused of the crimes of sexual slavery, the use of child soldiers, 'forced marriage', and intentionally directing attacks against peacekeepers. This article analyzes how prosecutions of some of these supposedly 'new' crimes were found not to be in violation of the principle of legality, nullum crimen sine lege. In particular, this article will focus on the crimes of 'forced marriage', intentionally directing attacks against peacekeepers, and sexual slavery: the judgments in the RUF case (Prosecutor v. Sesay, Kallon and Gbao) and the AFRC case (Prosecutor v. Brima, Kamara and Kanu) together reveal two different processes through which the law has proven able to evolve and adapt to accommodate so-called 'new' crimes without violating the principle of legality.

Copyright laws throughout the world are copyright holder centric and present a very fragmented source to comprehend the rights of users, and in particular of consumers owning copies of copyrighted works. Although in recent years, a growing number of commentators have worked towards defining the place of users in copyright law, little attention has been devoted to the nature and justifications of copy ownership of copyrighted works. This paper applies property and copyright theory to define and justify the existence of copy ownership of copyrighted works. It seeks to carve out in clearer terms the place of copy ownership legally and normatively, to offer a counterbalance to a predominant copyright holder centric approach to copyright law. Part One of this paper lays the theoretical framework of property and copyright theory. Part Two applies the theoretical framework to define the nature of the copy of a copyrighted works as well as its justifications. It explores the ramifications of copyright acting as a property-limitation rule to copy ownership, and how copy ownership can also act as a property-limitation rule of copyright.

This paper was written on the occasion of the 40th anniversary of the Annual Workshop on Commercial and Consumer Law and as a contribution to a collection of retrospective essays in the 50th volume of the Canadian Business Law Journal. In the paper, I reflect briefly on the impact of collective action on consumer access to courts, and the promised guarantee of effective justice. In the first part of the paper, I summarize the results of an empirical study which asked class action lawyers to identify the categories of cases being litigated, including those that come within the rubric of "consumer protection actions." I then examine two of the more significant advances in consumer rights litigation, namely, the development of the waiver of tort doctrine and the widespread rejection of mandatory arbitration clauses in consumer contracts. In the final part of the paper, I discuss two challenges to achieving substantive justice for consumers that have recently become more pronounced: increasing reliance on cy près distribution of settlements, and the effect of adverse costs awards on representative plaintiffs.

The Internal Inquiry into the Actions of Canadian officials in relation to Abdullah Almalki, Ahmad Abou-Elmatti and Muayyed Nureddin is a particularly pronounced example of the use of secrecy that has defined Canada in the wake of 9/11. Despite having the authority to hold some portions of the Inquiry in public, the Iacobucci Inquiry was conducted almost exclusively in camera and ex parte. The result was an inquiry that was unlike previous commissions called under the federal Inquiries Act.

Law can be the site through which women's dignity and equality can be expressed and pursued. Speaking the language of rights translates one's needs from private interests to public claims through words and concepts that the community – local, national and/or international – have already validated. Law can therefore offer a medium to confront the injustices and unfairness built into other systems of political, social and economic ordering. Women's rights advocates have won significant victories through law and have generated gains for women's dignity and equality. However, law can also be a place where women's rights are not only silenced but where social, economic and political power structures are replicated and work against women's rights.

The remedies that administrative tribunals can administer is an under studied area. Often, empowering legislation simply extoils an administrative tribunal to do what is ''fair and just''. In this paper, I argue that when confronted with open-textured remedial provisions, tribunals may often benefit from drawing by analogy from developed common law principles used to quantify monetary and non-monetary relief.

With this brief introduction to a special issue of the Osgoode Hall Law School Comparative Law and Political Economy Research Paper Series, we hope to evoke some of the discussions and background preparation that invigorated the 2010 Osgoode Graduate Law Students' Association conference.

As part of an international group of scholars who came together in December 2007 to discuss and debate the use of class actions worldwide, the authors prepared a report on the role of class proceedings in Canada. The original report followed a format designed by the conference organizers and traced the procedural particularities and historical pedigree of class actions in Canada, as well as the general policy rationales and arguments that continue to attend them. Condensed versions of the country reports, including this Canadian report, were published in March 2009.

On May 25 - 26, 2010, Université Laval, the University of Windsor Faculty of Law and the University of Louisville Brandeis School of Law, hosted the Sixth Administrative Law Discussion Forum in Quebec City, Canada.The forum provided an opportunity for thoughtful exchange among administrative law academics on contemporary issues that cut across national borders. The discussions reflected in this collection of papers touch on a variety of major administrative law themes. In addition, they examine local aspects of problems that transcend regional and national borders, and show connections and preoccupations between jurisdictions and indeed between countries.

In December 2009, the Ontario Legislative Assembly enacted the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 (ATAGAA). This new legislation offers a unique approach to ensuring that adjudicative tribunals in the province are transparent, accountable and efficient in their operations while preserving their decision-making independence. The statute presents an approach that the author has termed "collaborative governance" as it aims to bring the executive branch of government and the tribunals together in reaching effective and accountable means of internal governance. The author argues, however, that the approach taken by the statute does not address many of the contemporary concerns about accountability that are experienced by tribunals on the ground. She argues further that the legislation is inconsistent in its underlying commitment to the concept of accountability as it does not take into account the importance of accountability on the part of the executive to tribunals. Finally, the approach taken by the legislation must be channelled properly to avoid disintegrating from a collaborative governance approach to one of command and control.

Hate mongers have found it strategically useful to present themselves as defenders of free speech. The shift from advocate of hate to defender of free speech fits well with the hate monger's self-understanding as a victim of state oppression and a defender of Western values against multiculturalism. More often, though, the opposition to hate speech regulation has a principled basis. There are many committed civil libertarians who regard hate speech as odious but are nevertheless prepared to defend the right of others to engage in it. Their opposition to the restriction of hate speech rests on a commitment to individual liberty sand a concern about the reach of state power. While I think the "civil libertarian" position is mistaken, it is not without merit. What is perplexing though is the extraordinary energy that these advocates of free speech put into the fight against hate speech regulation. They seem convinced that the integrity of the free speech edifice depends on holding the line here. Yet they seem indifferent to the more significant ways in which freedom of expression is being eroded in Western democracies. Whether by design or not, the obsessive opposition to hate speech regulation diverts our attention away from more fundamental free speech issues concerning the character and structure of public disclosure, and more particularly the domination of public disclosure by commercial messages and the advertising form. But, of course, these are not issues that can be addressed by the courts, except in indirect ways, and that may partly explain the lack of attention they receive.

Increased access to justice is a key objective of class proceedings. Yet there is no consensus on what the term means in the class action context. This paper engages the access to justice paradigm by exploring the settlement approval phase of a class action. In Part A, the author offers a robust definition of access to justice that includes considerations of substantive justice. In Part B, the prevailing approach to the assessment of the fairness of a settlement is critiqued. Two common criteria in the fairness analysis, the presumption of fairness and a lack of objectors, are argued to be unreliable determinants of a just result. In Part C, the author evaluates a particular form of settlement - a cy pres distribution of settlement proceeds to charities. Such settlements, the author concludes, illustrate why current standards for settlement approval must be revisited in order to promote more meaningful access to justice.

If custody and access disputes are a deck of cards, the trump suit is the best interests of the child. When separating parents litigate about how and with whom their child should live, findings about what’s best for the child are meant to sweep away the parents’ interests and rights-claims. This principle is uncontroversial, but applying it is difficult. What parenting arrangements are best for children, and how successful is the legal system in putting these arrangements in place?

“Whose Best Interests?” compares the law of custody and access disputes with the procedure used to resolve them, and argues that there is a fundamental contradiction between these two things. The former focuses on the interests of the children involved to the exclusion of all else. The latter, however, is essentially designed to protect the best interests of the adult parties to the dispute. The article concludes by considering two alternative reforms which might resolve this contradiction.

The study of the law of remedies has found a place in the curriculum of many common law law schools. This has generated debate on whether the law of remedies exists as a distinct body of law governed by its own systematic structures and principles, and which can comfortably take its place beside other substantive private law subjects. The author argues that it can, and then suggests a number of important areas of law in which debate on appropriate remedial response is central to the articulation of the particular interest which has been violated. The author suggests that there is much useful work to engage the energies of scholars of the law of remedies.