Your search

Sylvia McAdam, 2015 20-1 Justice as Healing, 2015 CanLIIDocs 257

As has long been recognized, the contract of employment depends on the commodification of labour power. Notwithstanding debates amongst political theorists and trade union activists about whether individuals should be viewed as self-owners, and whether it is possible to sell one’s capabilities without selling one’s self, the law does treat labour power as a commodity. There has been little research on the ways in which the law does so, however, for the simple reason that self-ownership of one’s laboring capacities is often taken as fact, as the starting premise for analysis, and treated as a necessary pre-condition for individual self-realization through contract. Moreover, proprietary and contractual forms of regulating work are often presented as diametrically opposed: a proprietary method of labour regulation is said to create a relationship of slavery, while contract is presented as an institution of choice. This paper argues that an analysis of labour power as property, and its relationship to contract, emphasizes that both contract and property are enmeshed in the legal regulation of waged employment. Examining the ways in which the courts have given shape to individuals' proprietary rights over their labour power, and have set the terms for its exchange, demonstrates that the limitations on employer's rights of control are not inherent to the contractual form. Instead, they often depend on wider social processes, such as production and labour processes, collective bargaining, and statutory regulation. Examining proprietary rights over labour power provides another window onto the malleability of the contractual form, and the degree to which political choices are made by courts and legislators in determining the terms of the employment contract. This paper therefore investigates the relationship between contract, and labour power as property. To do so the historical evolution of contractual limitations on employers’ rights of control will be canvassed, and the ways in which these limitations are now fraying. In particular, the development of the managerial prerogative from a property to a contract-based interest is described, and the ways in which concepts of working-time have operated, in theory, to separate in law the commodification of labour power from the commodification of self. Finally, the paper concludes by examining the ways in which these limiting mechanisms are beginning to disappear, as collective bargaining protections dissipate and the statutory protections are rolled back.

The inventive concept in patent law, central to the Supreme Court’s test for whether a patent is invalid because of obviousness, lacks clarity. This article discusses that lack of clarity with reference to the vague and inconsistent treatment of the inventive concept in the jurisprudence of the Federal Court, Federal Court of Appeal and Supreme Court of Canada. In particular, this article discusses two unanswered questions: whether the inventive concept is a necessary part of the obviousness inquiry and what the inventive concept actually means. In answering the second question, this article explores three discrete stages in the evolution of the inventive concept: (1) the genesis of the inventive concept in Canadian jurisprudence in Apotex Plavix; (2) a notable dialogue regarding the interpretation of the inventive concept between the Federal Court and Federal Court of Appeal in Apotex Combigan; and (3) the persisting confusion surrounding the current meaning of the inventive concept. This article concludes by urging appellate courts to provide clearer guidance with respect to the significance and meaning of the inventive concept.

Drawing on the fields of human rights and public health, this research explores the covert administration of medication: the concealment of medication in food or drink so that it will be consumed undetected. Adopting a rights-based approach, it explores multiple understandings of the impact of the practice on inpatients' rights-experiences. Relying on critical approaches, it also explores the practice's underlying socio-political-legal structures. The common themes of policies, protocols or guidelines that govern its practice in Ontario are identified. Focus groups and individual interviews were held with three groups of stakeholders (nurses, legal experts and psychiatrists), relying on fictional clinical scenarios. Few policies, protocols or guidelines govern the practice in Ontario's psychiatric settings. The practice impairs access to knowledge by patients and substitute decision-makers. It also precludes healthcare practitioners' access to information about side effects and underlying reasons for medication refusal. It may interfere with therapeutic relationships and patients' meaningful recovery as they transfer from hospital without knowledge of the fact of the covert medication. It may be characterized as autonomy restoring since patients may become capable of making treatment decisions after having received the medication surreptitiously. Covert medication reflects an inflexible approach to capacity determination; it is distinguishable from approaches that imagine capacity as able to be fostered with support. It is primarily concerned with the management of "risky" inpatients in the short-term. The practice relies on a faith that medication will be effective, deferring to medical decision-making. While covert medication is understood to have "something to do" with rights, there is confusion about how those rights play out on the ground. Institutional silences underlie and reinforce the practice. This research will support the development of effective, safe and appropriate approaches to treatment non-adherence that maximize patient dignity. Most pressing, this research concludes that the covert administration of medication warrants an overt discussion.

Expropriation – the non-consensual taking of privately-owned property by the state in exchange for the payment of compensation – is a widely-used tool of land use planning in Canada as it is in many other states. While in principle all privately-held properties are equally susceptible to expropriation in Canada, legal frameworks on expropriation fail to guard against the possibility that less-wealthy neighbourhoods become more susceptible to expropriation than more wealthy ones (the 99% versus the 1% to put it in the terms used by the Occupy movement of the early part of this decade). The paper examines existing legal frameworks as well as a number of historical expropriation projects in Canada to depict how and why this may come to pass. It does so with a comparative eye turned towards the United States. The paper concludes with several recommendations for strengthening expropriation law frameworks in Canada to ensure that the property of the less-wealthy is as well protected as those properties in higher-income neighbourhoods. La expropiación –la adopción no consentida de una propiedad privada a manos del estado, a cambio de una compensación económica– es una herramienta ampliamente utilizada en la planificación urbanística, tanto en Canadá como en muchos otros estados. Aunque en principio, todas las propiedades en manos privadas tienen la misma posibilidad de ser expropiadas en Canadá, los marcos jurídicos en materia de expropiación fallan a la hora de proteger a los barrios con menos recursos para que no sean más susceptibles a la expropiación que los más ricos (el 99% frente al 1%, según los datos utilizados por el movimiento Occupy durante la primera parte de esta década). Este artículo analiza los marcos legales y una serie de proyectos de expropiación históricos en Canadá para describir cómo y por qué puede llegar a ocurrir esto. Se realiza una comparación con la situación en Estados Unidos. El artículo concluye con una serie de recomendaciones para fortalecer los marcos de la ley de expropiación en Canadá, y asegurar que las propiedades de los menos ricos están protegidas de la misma manera que las propiedades en los barrios más acomodados. DOWNLOAD THIS PAPER FROM SSRN: http://ssrn.com/abstract=2572207

The experience of many university students studying public international law is, ""This is fascinating, but what can I do with it?"" While this book in no way detracts from the more intangible reasons to study international law, it is practically focused and explores the options available to law graduates beyond traditional or domestic law career paths. The range of possible careers is vast - from human rights to investment law and from the courtroom or boardroom to the refugee camp - and the book offers a step-by-step approach to considering whether and how to pursue a career in one of these

In 1988, defence lawyers in Ottawa were instructed to “whack” the complainant in sexual assault cases. These were their marching orders:

This chapter presents a theoretical perspective on the roles of law in the evolution of planning systems. Three main roles of law in planning are distinguished: law can enable, delimit and codify planning. How these roles play out and relate to each other in the evolution of a planning system, will differ by community. In four scenario’s we discern key points regarding the relation between the roles of law in evolving spatial governance. Understanding the different roles of law in planning, and their interplay in the evolution of the planning system, adds to the scientific and societal debates on planning and law, where hitherto polarizing discourses (planning vs law) dominated the discussion. More broadly, our perspective on the enabling, codifying and delimiting functions of law in planning sheds a new light on the potential and limitation of both law and planning to shape the future of communities.

This paper is based on a presentation I gave at the Access Conference in Toronto, Ontario on September 10th, 2015. Both the presentation and this paper are explorations in three parts. The first part is a short history lesson on the use of paper cards by scholars and librarians, which led to the introduction of the “Scholar’s Box.” The second part asks the question: Can we consider Zotero as the Scholar’s Box of the digital age when it cannot capture important metadata such as linked open data? It is recognized that this is not just a shortcoming of Zotero: research is surprisingly still very difficult to share between scholars, libraries, and writing tools. This is due to an inability to capture the “invisible text” when we copy and paste citations from one application to another. The third part establishes that the digital card is now the dominant design pattern of web and mobile, and notes that these systems are largely restricted to proprietary platforms, which restricts the movement of cards between systems. This paper then suggests how we might transform the historical Scholar’s Box, by using HTML5 index cards from Cardstack.io as a means to bring new forms of sharing on the web, and, in doing so, reconnect the scholar to the library. Cet article est basé sur un exposé que j’ai donné à Access Conference à Toronto le 10 septembre 2015. L’exposé et cet article sont des explorations en trois parties. La première partie est une leçon d’histoire courte sur l’usage des cartes en papier par les spécialistes et les bibliothécaires, qui a mené à l’introduction du “Scholar’s Box”. La seconde partie pose la question: Est-ce que nous pouvons considérer Zotero comme le “Scholar’s Box” de l’âge numérique, même s’il ne peut pas capturer des métadonnées importantes telles que les données liées ouvertes? On reconnaît que ce n’est pas seulement une lacune de Zotero: étonnement, la recherche est toujours très difficile à partager entre spécialistes, bibliothèques, et outils d’aide à la rédaction. Ceci est dû à l’incapacité de capturer le “texte invisible” quand on copie et colle des citations d’une application à une autre. La troisième partie établit que la carte numérique est maintenant le motif dominant sur le Web et sur le mobile, et constate que ces systèmes sont largement limités aux plateformes propriétaires, ce qui limite le mouvement des cartes entre les systèmes. Cet article suggère comment on pourrait transformer le “Scholar’s Box” historique en utilisant les cartes d’index HTML5 de Cardstack.io comme moyen d’apporter de nouveaux moyens de partager sur le Web, et ce faisant, reconnecter le spécialiste à la bibliothèque.

For self-defence actions to be lawful, they must be directed at military targets. The absolute prohibition on non-military targeting under the jus in bello is well known, but the jus ad bellum also limits the target selection of states conducting defensive operations. Restrictions on targeting form a key aspect of the customary international law criteria of necessity and proportionality. In most situations, the jus in bello will be the starting point for the definition of a military targeting rule. Yet it has been argued that there may be circumstances when the jus ad bellum and the jus in bello do not temporally or substantively overlap in situations of self-defence. In order to address any possible gaps in civilian protection, and to bring conceptual clarity to one particular dimension of the relationship between the two regimes, this article explores the independent sources of a military targeting rule. The aim is not to displace the jus in bello as the ‘lead’ regime on how targeting decisions must be made, or to undermine the traditional separation between the two ‘war law’ regimes. Rather, conceptual light is shed on a sometimes assumed, but generally neglected dimension of the jus ad bellum’s necessity and proportionality criteria that may, in limited circumstances, have significance for our understanding of human protection during war.