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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.

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.

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.

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.

This article traces the evolution of the feminist “sex wars” in contemporary debates about campus sexual violence reform in Canada and the United States – what Emily Bazelon calls the “return of the sex wars” at American colleges and universities. The "return of the sex wars" has been characterized by many of the same unproductive hostilities and painful acrimony as the original fight between feminist sex radicals and anti-pornography feminists over three decades ago. This article focuses on a particularly controversial issue in these debates: the role of consensual dispute resolution (i.e., negotiation, mediation, and restorative justice) in addressing campus sexual violence. Employing a two-person counter conversational methodology, the article stages a negotiation between two feminists with competing and representative views on this issue. Feminist concerns about consensual dispute resolution raise challenging questions about the rise of informal justice and its implications for the rule of law in campus sexual violence cases. The article concludes by arguing that the intense polarization and politicization of the "return of the sex wars" has led to a hollowing out of the feminist critical discourse in this area, which has prevented some feminists from engaging with consensual dispute resolution as a potentially viable and redemptive means of sexual regulation on campus.

Climate justice activists are increasingly looking to litigation to produce the policy changes that have eluded them in the political process. Without a codified right to a clean environment, litigants in jurisdictions like Canada must use a human rights framework to advance their cause. Recent successes in Charter class actions suggest that it is now possible to pursue constitutional damages for climate change harms. As Canadian advocates join with their international counterparts in deploying a litigation strategy, Canada’s robust class action procedure may be a useful addition in the pursuit of collective climate justice. This paper proceeds in four parts. First and by way of background, I summarize the types and extent of climate change litigation in Canada and internationally. Second, I discuss Canadian class actions advancing constitutional claims, which have recently surged after two decades of limited use. In part III, I argue that a climate change action founded on a breach of s. 7 of the Charter would meet the test for certification of a class action. Finally, in part IV I discuss the comparative advantages and disadvantages of using the class action mechanism to combat climate injustice.

Semi-colonialism is a perplexing concept in international legal scholarship that has more often than not been conflated with colonialism proper. To remedy this analytic confusion, I propose a shift from a focus on the ideological aspects of the imperialism of international law to the semi colonial practices of informal domination on the ground. To do this, I revisit the understudied concept of the ‘protectorate’ in international law, and analyze its geopolitical uses. The geopolitical dimensions of protection illustrate the importance of geopolitics in the history of international law. After examining the connections between geopolitics and international law, the second part of the article looks into the origins of the strategic region of the ‘Middle East,’ focusing on the history of the protected states of the Trucial treaty system in the Persian Gulf. Finally, I turn to the ‘Question of Oman’ at the United Nations (1957-1965) to illustrate how the practices of informal domination operated through semi-colonial techniques of veiling imperial domination, the legal obfuscation of power relations, the legitimization of unilateral treaty breaking and geopolitical maneuvering with international legal arguments.

Critical race theory (CRT) is a helpful theoretical lens to understand the origins and practices of five ethno-racial legal clinics in the province of Ontario. Both the development of a distinctly Canadian CRT scholarship and the day-to-day work of ethno-racial legal clinics would be mutually enriched by a much closer and robust union between scholarship and praxis. In particular, the praxis of Ontarian ethno-racial legal clinics is put into conversation with Amna A. Akbar’s vision in “Toward a Radical Imagination of the Law,” which outlines a profoundly transformative standard of CRT that broadens the analysis of racial power to look at how the law, capitalism, and the state may operate in tandem to produce intersectional inequality. Based on the theoretical tenets of CRT, this article traces the development of ethno-racial legal clinics and their unique praxis and, using the insight of “looking to the bottom” as an epistemological approach to law, demonstrates that ethno-racial community legal clinics provide a useful vehicle to understand structural racism. CRT can therefore offer a robust theoretical framework to support the cause of advancing racial justice through legal practice. Ethno-racial legal clinics embrace a democratic approach to the law that has the potential to transform traditional forms of legal representation by engaging in systemic advocacy and community outreach and aligning advocacy efforts with social movements to help build community power and facilitate broader social change. However, they also face institutional pressures that pull their practice of the law back towards traditional models—pressures that they must delicately navigate in their day-to-day work.

The paper sheds light on India's ruling Bharatiya Janata Party’s (BJP) insidious use of legitimate state power through administrative regulation, constitutionalism, citizenship determination, adoption of international law and neoliberal economic policies, to further its ‘Hindutva’ ideology. This reflection focuses on two aspects. First, we show how, by implementing the National Registry of Citizens (NRC) along with other national documentation regimes, the government is using facially neutral administrative regulations to construct the ‘documented’ Indian citizen. This ‘citizen’ is made to fit with Hindutva ideals by disenfranchising Muslims and threatening the de facto and de jure citizenship of nondominant caste Hindus and other groups that challenge the ideology. While these state actions may seem distinct, they resemble traditional colonial practices that the BJP is skilfully adopting to advance its discriminatory political ends. Second, we show that, with the CAA, the BJP is perversely using the humanitarian principles of refugee law to construct neighbouring Muslim states as savage, and whose victims have to be protected by the Hindutva state. Thus, India is replicating the practices of liberal, democratic states of the Global North that continue to use logics of coloniality, exceptionalism and racism to maintain systemic inequities and embed oppressions.

While collective redress mechanisms continue to develop in much of Europe and in pockets around the world, the oldest class action regimes are undergoing reform. This contribution explores the state of reform in the first and second generation class action jurisdictions: the United States, Australia, Israel and Canada. Their respective class action procedures are outlined in Sect. 2. Section 3 discusses the reform initiatives of the past two years in each of the four countries. In Sect. 4, common areas of concern as well as areas of divergence are explored. Comparing and contrasting these reform efforts illustrates the evolution of class actions in these countries and provides useful insights for those studying and contributing to the development of newer collective redress systems.

In her book Copyright and Collective Authorship — Locating the Authors of Collaborative Work, Dr. Daniela Simone identifies root causes of the deficiencies in the law’s treatment of (joint) authorship, and provides an admirable roadmap and analytical framework to orient the judiciary and all others concerned about ascertaining who should be the authors of collective works. Simone’s analytical framework and prescriptions rely on four case studies that involve large amounts of collaboration: Wikipedia, Australian indigenous art, scientific collaborations and film. Throughout the book, I was struck by Simone’s commitment to integrity, ethics and fairness in her treatment of contributors of creative processes, pointing to power imbalances, misguided practicality and efficiency rationales, and how those factors may have the law turn its back away from otherwise deserving authorial contributions.

Robots are an increasingly common feature in North American public spaces. From regulations permitting broader drone use in public airspace and autonomous vehicle testing on public roads, to delivery robots roaming sidewalks in major US cities, to the announcement of Sidewalk Toronto — a plan to convert waterfront space in one of North America’s largest cities into a robotics-filled smart community — the laws regulating North American public spaces are opening up to robots. In many of these examples, the growing presence of robots in public space is associated with opportunities to improve human lives through intelligent urban design, environmental efficiency, and greater transportation accessibility. However, the introduction of robots into public space has also raised concerns about, for example: the commercialization of these spaces by the companies that deploy robots; increasing surveillance that will negatively impact physical and data privacy; or the potential marginalization or exclusion of some members of society in favor of those who can pay to access, use, or support the new technologies available in these spaces. Laws that permit, regulate, or prohibit robotic systems in public spaces will in many ways determine how this new technology impacts public space and the people who inhabit that space. This begs the questions: how should regulators approach the task of regulating robots in public spaces? And should any special considerations apply to the regulation of robots because of the public nature of the spaces they occupy? This paper argues that the laws that regulate robots deployed in public space will affect the public nature of that space, potentially to the benefit of some human inhabitants of the space over others. For these reasons, special considerations should apply to the regulation of robots that will operate in public space. In particular, the entry of a robotic system into a public space should never be prioritized over communal access to and use of that space by people. And, where a robotic system serves to make a space more accessible, lawmakers should avoid permitting differential access to that space through the regulation of that robotic system.

Forthcoming, Dalhousie Law Journal.A lawyer should be a loyal ally for each client, and should never exploit a client for personal gain. Legal services regulation should prevent such exploitation. It should also create certainty, and foster trust in every lawyer-client alliance.When it comes to time-based legal fees, Canadian legal services regulation is not yet doing its job. Throughout Canada, rules say that legal fees must be “fair and reasonable,” and “disclosed in a timely fashion.”1 These fine sentiments are supported by long lists of factors to be considered when a legal fee is called into question and then assessed retrospectively. That is, more or less, all that the codes of conduct have to say about time-based legal fees.What we lack are clear rules and efficient procedures to determine what specific billing and disclosure practices are -- and are not -- “fair,” “reasonable,” and “timely.” The status quo gives unethical lawyers room to take advantage of inexperienced clients in niches such as family law, estate law, and employment law, in which time-based billing is common.2 It also subjects ethical lawyers, and their clients, to unnecessary distrust and disputes regarding fees. Reconciling the obvious need to charge and collect fees with the ethical obligation to practice “honourably and with integrity” raises complicated ethical issues,3 for which regulators should offer more concrete guidance. Without fixing prices or curtailing flexibility in billing arrangements, regulatory reform can create a much fairer field for agreements between lawyers and clients about time-based fees.Part 1 of this article considers first the beginning, then the middle, and finally the end of a typical retainer involving time-based billing and an inexperienced client. At each of these three junctures, we find ethical ambiguity creating both opportunities for exploitation and conflicts of interest. The vagueness of the rules requires a lawyer to unilaterally make decisions that increase or decrease the client’s bill. This creates a conflict between the lawyer’s financial self-interest, and their fiduciary obligation to put the client’s interest first. Part 2 argues for more detailed regulation of time-based legal fees, in order to prevent exploitation, create certainty, and eliminate fee-related conflicts of interest that undermine trust in the lawyer-client relationship. Wherever possible, the best practices for time-based billing already used by ethical and conscientious lawyers should be enshrined in regulation. Drawing on regulatory theory, I argue that a move from the current vague standard to more precise rules would create certainty, without significantly constraining flexibility. Part 3 turns from the rules to the procedure that is meant to enforce them. I argue that the court-based process for identifying and remedying unethical billing is inaccessible, inconsistent, and vulnerable to strategic abuse by both lawyers and clients. Making law societies fully responsible for regulating legal fees would make the system more holistic, accessible, and consistent.

A number of doctors in Ontario have challenged the policy of the provincial College of Physicians and Surgeons that requires its members to provide a patient with an “effective referral” to another doctor if they were unwilling or unable on moral grounds to offer a particular medical service, such as an abortion or medical assistance in dying. The doctors argue that if they were to give an effective referral, they would be complicit in acts that in their view were immoral. I will argue that the significant issue in this case and other conscientious objection cases, is not, as the courts have said, the reasonable balance between the individual’s religious interests or commitments and the interests or rights of others in the community, but is instead whether the individual’s religiously-based objection should be viewed as an expression of personal religious conscience that should be accommodated, provided this can be done without noticeable harm to others, or as a religiously-grounded civic position or action that falls outside the scope of religious freedom and may be subject to legal regulation. The commitment to religious freedom requires that a distinction be made — a line drawn — between civic and spiritual beliefs or actions. An individual’s spiritual practices are both excluded and insulated from political decision-making. However, their beliefs concerning civic issues, such as the rights and interests of others and the just arrangement of social relations, even if grounded in a religious system, must be subject to the give-and-take of ordinary politics. In determining whether a particular (conscientious) objection should be viewed as a personal or spiritual matter or instead as a civic or political position, two factors may be relevant. The first is whether the individual is being required to perform the particular act to which they object only because they hold a special position not held by others, notably some form of public appointment. The other factor is the relative remoteness-proximity of the act that the objector is required to perform from the act that they consider to be inherently immoral. The more remote the legally required action, the more likely we are to regard the refusal to perform it as a position about how others should behave or about the correctness of the law, rather than as an expression of personal conscience.

This paper analyzes the constitutionality of the Law Society of Ontario’s (now repealed) Statement of Principles requirement. First, this paper conducts a statutory analysis of the requirement. It explains how the requirement merely obligated that licensees acknowledge extant professional and human rights obligations, rather than creating novel obligations. Second, this paper conducts a theoretical analysis of the requirement. It applies a critical race theory lens to unveil the ways in which liberty claims relating to free speech obscured how significant resistance to the requirement’s modest obligation was galvanized by opposition to diversity and denial of systemic racism. Third, this paper conducts a constitutional analysis of the requirement. It explains why the requirement did not violate freedom of conscience or freedom of expression. In contrast with prior scholarship, this paper argues that the Statement of Principles requirement failed every stage of the legal test that designates state activity as compelled speech. Specifically, the requirement failed to compel an expression with non-trivial meaning (Step 1) and failed to control free expression in Canada, when such control is properly construed through a purposive rather than colloquial lens (Step 2). This paper concludes by noting how the requirement’s self-drafted structure provided an innovative opportunity for licensees to reflect on their perhaps unwitting participation in systemic racism.

Robots are an increasingly common feature in North American public spaces. From regulations permitting broader drone use in public airspace and autonomous vehicle testing on public roads, to delivery robots roaming sidewalks in major U.S. cities, to the announcement of Sidewalk Toronto – a plan to convert waterfront space in one of North America’s largest cities into a robotics-filled smart community – the laws regulating North American public spaces are opening up to robots. In many of these examples, the growing presence of robots in public space is associated with opportunities to improve human lives through intelligent urban design, environmental efficiency, and greater transportation accessibility. However, the introduction of robots into public space has also raised concerns about, for example, the commercialization of these spaces by the companies that deploy robots; increasing surveillance that will negatively impact physical and data privacy; or the potential marginalization or exclusion of some members of society in favour of those who can pay to access, use, or support the new technologies available in these spaces. The laws that permit, regulate, or prohibit robotic systems in public spaces will in many ways determine how this new technology impacts public space and the people who inhabit that space. This begs the questions: how should regulators approach the task of regulating robots in public spaces? And should any special considerations apply to the regulation of robots because of the public nature of the spaces they occupy? This paper argues that the laws that regulate robots deployed in public space will affect the public nature of that space, potentially to the benefit of some human inhabitants of the space over others. For these reasons, special considerations should apply to the regulation of robots that will operate in public space. In particular, the entry of a robotic system into a public space should never be prioritized over communal access to and use of that space by people. And, where a robotic system serves to make a space more accessible, lawmakers should be cautious to avoid providing differential access to that space through the regulation of that robotic system.

This article examines the use of Facebook’s Libra as a substitute for fiat money. It considers Libra’s prospects for success in light of the fact that it purports to substitute trust in a technology for the traditional legal supports that bolster public trust in traditional fiat currencies. The legal doctrines that support fiat currencies do so for the purposes of recognizing the economic functions that money performs and are also meant to support public policies that promote monetary stability, protect consumers and help to enforce anti money laundering statutes. It is argued that Libra will result in unintended challenges for monetary authorities that will subject the world financial system to greater consumer transaction risks, increase systemic risks, and make it more difficult to combat money laundering efforts. The ultimate question is whether the public can place its trust in Facebook and its partners to manage a global currency, or is that trust better placed in the hands of central banks?

Price is an essential term at the heart of supplier-consumer transactions and relationships increasingly taking place in “micro-marketplace chambers,” where points of comparison with similar relevant products may be difficult to discern and time-consuming to make. This article critically reviews recent legal and economic academic literature, policy reports on algorithmic personalized pricing (i.e. setting prices according to consumers’ personal characteristics to target their willingness to pay), as well as recent developments in privacy regulation, competition law, and policy discourse, to derive the guiding norms that should inform the regulation of this practice, predominantly from a consumer protection perspective. Looking more closely at algorithmic personalized pricing through prevailing and conflicting norms of supplier freedom, competition, market efficiency, innovation, as well as equality, fairness, privacy, autonomy, and transparency, raises important concerns about certain forms of algorithmic personalized pricing. This article provides parameters to delineate when algorithmic personalized pricing should be banned as a form of unfair commercial practice. This ban would address the substantive issues that algorithmic personalized pricing raises. Resorting to mandatory disclosure requirements of algorithmic personalized pricing would address some of the concerns at a procedural level only, and for this reason is not the preferred regulatory approach. As such, our judgment on the (un)acceptability of algorithmic personalized pricing as a commercial practice is a litmus test for how we should regulate the indiscriminate extraction and use of consumer personal data in the future.