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A clear legal test for equality is impossible, as it should be. Indeed were the test clear, it could not be for equality. It would have to be for something other than equality — in effect, for inequality. The abstract character of equality is not a new idea. In fact, the Supreme Court of Canada’s first decision under section 15 of the Canadian Charter of Rights and Freedoms recognized equality as “an elusive concept” that “lacks precise definition.” Why, then, do judges continue to demand such definition over thirty years later? The answer, at times, is politics.

A clear legal test for equality is impossible, as it should be. Indeed were the test clear, it could not be for equality. It would have to be for something other than equality — in effect, for inequality. The abstract character of equality is not a new idea. In fact, the Supreme Court of Canada’s first decision under section 15 of the Canadian Charter of Rights and Freedoms1 recognized equality as “an elusive concept” that “lacks precise definition.”2 Why, then, do judges continue to demand such definition over thirty years later? The answer, at times, is politics. 1 s 15(1), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].2 Andrews v Law Society of British Columbia, [1989] 1 SCR 143 at 164, 56 DLR (4th) 1 [Andrews].

This draft chapter is part of a larger research project exploring the question of patent quality from a human agency perspective. This chapter explores the changing relationship between agency, and specifically, 'professionalized' agency, and patent quality.

This paper explores from a Canadian perspective the awarding of damages for non-pecuniary losses that arise in commercial settings and asks the question whether there is any useful function performed by such awards. It is difficult to find cases that support such awards and thus if they are to be awarded, it will be advancing damages for non-pecuniary losses in a new direction. To justify such a movement, I suggest that the any development should be measured by two concepts: legitimacy - what is it that courts can legitimately do, and coherence - how does the award fit into a coherent and predictable legal system.I argue that from a purely compensation point of view, awarding compensation for a loss that is incommensurable does not make much sense. Only if the justification is vindication, deterrence or punishment is there merit in awarding more than compensation, but then, courts or legislatures should develop separate criteria to add quantification and to meet the standards of legitimacy and coherence.

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In York University v The Canadian Copyright Licensing Agency (2020), the Federal Court of Appeal was confronted with two issues at the heart of ongoing debates in Canadian copyright law. First, whether tariffs of copyright collective societies are mandatory. Second, and the main focus of this case comment, how should the fair dealing doctrine be interpreted with respect to the purpose of education. The Federal Court of Appeal upheld the Federal Court decision that York University Fair dealing Guidelines did not meet the fair dealing requirements in copyright law. This case comment highlights how the Federal Court and Federal Court of Appeal failed to consider important contextual elements of York University Guidelines that might have led to different conclusions. It provides some guidance on how fair dealing for the purpose of education should be interpreted. While fair dealing has been characterized as a “user right” by the Supreme Court of Canada in CCH Canadian Ltd v Law Society of Upper Canada (2004) and subsequent decisions, this case comment points to some of the shortcomings of fair dealing as a vehicle to promote greater access to educational materials. It concludes by highlighting the challenges that lie ahead on the application of fair dealing to educational institutions, and by broadening the debate of access to educational materials beyond the fair dealing doctrine.

The Public Knowledge Project's mission is enhancing the diffusion of scholarship through open-source software platforms.5 For many scholars and researchers, The Public Knowledge Project is probably best known for its Open Journal Systems (OJS) platform for the dissemination of scholarly journal articles.6 In the publication of The Intellectual Properties of Learning, Willinsky remained true to his principles; the work was released for free online, as well as in hard copy for purchase. Part One: Monastery and School In this section, we learn of the medieval monastic tradition of scholarship and learning that flourished in Europe and England from the early middle ages to the 11th century, starting with the Roman monk Jerome who first articulated a relationship between authors and their works. The author's treatment of Locke differs from conventional accounts of Lockean copyright in that he situates Locke's philosophy of property within the context of the intellectual properties of learning rather than within the entitlement to property in one's labour. In his treatment of the subject, Willinsky provides longitudinal depth and context for researchers working in areas of intellectual property history, especially in relation to copyright and the advancement of learning.

Sujith Xavier & Ntina Tzouvala introduce our series of reflections on ‘Teaching International Law: Between Critique and the Canon’.

The legal profession throughout most of Canada enjoys the privilege of self-regulation and a (purported) monopoly over legal practice. In Ontario, the Law Society must regulate so as to facilitate access to justice and protect the public interest. Critics argue that self-regulation is anti-competitive it allows the profession to control the market for legal services, increasing the cost of services and restricting access to them and serves professional interests over the public interest. The Ontario government introduced paralegal regulation to enhance access to justice. Regulation would increase consumer choice and the competence and affordability of non-lawyer legal service providers. The Law Society agreed to regulate paralegals in the public interest. After decades of discord between lawyers and non-lawyers, paralegal regulation was implemented in 2006. Many were opposed to lawyers regulating competitors. For some, it was akin to having the fox watch over the chickens. It also confounded self-regulation the legal profession now regulating itself and others. Paralegals are licensed to provide legal services directly to the public independent of lawyers but they are regulated by lawyers. The Law Society has declared paralegal regulation a success and itself the right choice of regulator. This dissertation explores whether paralegal regulation has increased access to justice, as the government promised and Law Society claims. It examines the history of the legal profession and Law Society in Ontario and the events leading to paralegal regulation. Using both market control and the cultural history of the legal profession as theoretical underpinnings, and through the lens of access to justice, this dissertation analyzes the Law Societys exercise of regulatory authority over paralegals and undertakes empirical research of paralegal representatives at the Workplace Safety and Insurance Appeals Tribunal. This dissertation concludes that paralegal regulation has done little to increase access to justice and that self-regulation and the Law Societys manner of regulating are barriers to increased access to justice.

A life-evaluation question asks a person to quantify his or her overall satisfaction with life, at the time when the question is asked. If public policy seeks to make individuals’ lives better, does it follow that changes in aggregate life-evaluations track policy success? This paper argues that life-evaluation is a practical and philosophically sound way to measure and predict welfare for the purpose of analyzing policy options. This is illustrated by the successful argument for expanding state-funded mental health services in the United Kingdom. However, life-evaluations sometimes fail to adequately measure individual welfare. Policy analysts therefore must sometimes inquire into the extent to which individuals’ preferences would be fulfilled, if different policies were to be adopted. This article proposes synthesizing life-evaluation and preference-fulfilment data about individual welfare, as a basis for welfare-consequentialist policy analysis.

The print edition The Law of Trusts, 3rd Edition, includes a PDF ebook. Look for your PIN code card inside the front cover. The Law of Trusts, 3rd Edition, edited by Mark R. Gillen and Faye Woodman, traces the development of resulting and constructive trusts to reflect a uniquely Canadian approach. Written by leading scholars in the field, this comprehensive casebook situates the law of trusts in context for its readers, yet extends beyond the normal scope to discuss specialized topics such as unjust enrichment, taxation, and succession planning. The third edition has been updated and expanded to include a new chapter on the Quebec trust. An overview of the taxation of trusts and beneficiaries has been added to make the subject matter more accessible, and an updated chapter on fiduciary obligations references the Galambos and Elder Advocates cases to reflect the clarified approach adopted by the SCC.

Tort law allows parties to seek remedies (typically in the form of monetary damages) for losses caused by a wrongdoer’s intentional conduct, failure to exercise reasonable care, and/or introduction of a specific risk into society. The scope of tort law makes it especially relevant for individuals who are harmed as a result of an artificial intelligence (AI)-system operated by another person, company, or government agent with whom the injured person has no pre-existing legal relationship (e.g. no contract or commercial relationship). This chapter examines the application of three primary areas of tort law to AI-systems. Plaintiffs might pursue intentional tort actions when an AI-system is used to intentionally carry out harmful conduct. While this is not likely to be the main source of litigation, intentional torts can provide remedies for harms that might not be available through other areas of law. Negligence and strict liability claims are likely to be more common legal mechanisms in the AI context. A plaintiff might have a more straightforward case in a strict liability claim against a wrongdoer, but these claims are only available in specific situations in Canada. A negligence claim will be the likely mechanism for most plaintiffs suffering losses from a defendant’s use of an AI-system. Negligence actions for AI-related injuries will present a number of complexities and challenges for plaintiffs. Even seemingly straightforward preliminary issues like identifying who to name as a defendant might raise barriers to accessing remedies through tort law. These challenges, and some potential opportunities, are outlined below.

Based on an empirical review of post-RDS caselaw, I argue that there is a demonstrable colour blindness within the existing jurisprudence on judicial impartiality. I illustrate this colour blind approach through two arguments. The first argument is based on the evidence needed to pierce the veil of judicial impartiality. A large number of the cases surveyed illustrate the propensity of decision makers to deny recusal arguments based on the cogency of the evidence. In these cases of colour blind decision making, the presented evidence was deemed insufficient to warrant piercing the veil of judicial impartiality. The second argument focuses on judges that adopt an antiracist perspective. When judges have relied on social science evidence to engage in contextual and antiracist judging, they have been policed and their decisions overturned by supervisory and appellate courts.