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Class counsel fees and their relationship to class member compensation are among the most important—and most controversial—statistics used to evaluate the normative outcomes of the class action mechanism. The perception that class attorneys reap windfall rewards while the class ‘gets nothing’ is persistent among class action critics. The ratio of legal fees to settlement funds captures the critical trade-off between counsels’ entrepreneurial incentives to pursue lucrative claims and the agency challenges endemic to these proceedings. In the most comprehensive analysis of Canadian class actions to date, the authors use new data and novel econometric methods to explore the nature of class action fee ratios in Ontario for both economics and legal audiences. To start, we calculate “all-in” fee ratios—lawyer fees plus disbursements divided by settlement amounts in Ontario—of 25.0% on average and at the median. Next, we show that judges are sensitive to windfall gains and sweetheart deals, problems associated with large awards, and adjust fees based on settlement size. These data and estimates contribute to a better understanding of judicial economy and access to justice in practice, the principal arguments in favour of class proceedings.

This article delves into the recent efforts of Asian migrant massage and sex workers in the Town of Newmarket, Ontario, and their struggle against a recently amended Personal Wellness Establishments (PWE) By-law. It starts with a historical overview of municipal licensing schemes and legislated migration controls in Canada, used to justify increased surveillance, control movement, and deny Asian women entry into Canada, before illustrating the enduring impacts on Asian migrant workers today. It concludes by emphasizing that migrant sex workers, often depicted as voiceless and nonconsenting victims, take leadership and have agency in defining their own struggles and authoring possibilities to resist.

Welfarism is the idea that government should always try to make individuals’ lives go better, for them, than they otherwise would, overall. The goal of this paper is to demonstrate welfarism’s compatibility with, and potential to support, the ambitions of person-centred justice. Welfarism is a normative theory applicable to public policy generally, but one which has distinct consequences in the realm of law and legal systems. They are considered just to the extent that they generate the best possible expected welfare consequences for all of the individuals who are affected by them. Welfarism is radically person-centred because it requires lawmakers to treat each individual affected by their work as a distinct locus of value, including those who have been subordinated or ignored., RésuméLe welfarisme est l’idée selon laquelle le gouvernement devrait toujours essayer d’améliorer la vie des individus, et ce, d’une manière à ce que la qualité de vie des individus soit supérieure à ce qu’elle l’aurait été sans ladite intervention gouvernementale. Dans cette voie, l’objectif de cet article est de démontrer la compatibilité du welfarisme avec les ambitions d’une justice centrée sur la personne et son potentiel pour soutenir cette forme de justice. Le welfarisme est une théorie normative applicable aux politiques publiques en général, mais qui entraîne toutefois des conséquences distinctes dans le domaine du droit et des systèmes juridiques. Les lois sont alors considérées comme justes si elles génèrent les meilleures conséquences possibles en termes de bien-être pour tous les individus qui sont affectés par celles-ci. Le welfarisme est radicalement centré sur la personne, car il exige que les législateurs traitent chaque individu affecté par leur travail comme un lieu de valeur distinct, y compris celles et ceux qui ont été subordonnés ou ignorés.

Guest column: Make 'The Gordie' — with cycling/ pedestrian path — a bridge to building better cycling infrastructure in the City of Windsor.

The constantly developing norm of access to justice is moving to occupy a central place in the administrative justice system,  prompting a need to rethink the values that should serve to animate the system. This article offers a framework for the administrative justice system in Canada, one that firmly and explicitly entrenches the value of access to administrative justice within it. It reflects on the requirements to achieve access for a significant population of its users – namely, equality-deserving communities. The author looks at the historical reasons why access to justice has been a concern for equality-deserving communities, and introduces the concept of social equity from the discipline of public administration as a tool to assist in addressing some of the structural and systemic access-to-administrative-justice challenges experienced. The author rearticulates the foundational values of administrative law in Canada to incorporate access to administrative justice as a distinct value, one that engages with access-to-justice barriers relating to structural and systemic inequality. In doing so, she details five core principles that underpin the new value of access to administrative justice and cites examples of recent tribunal reform projects in Canada that illustrate promising innovations in that direction. Finally, the author describes briefly the ways in which institutional design and tribunal culture can contribute to enhancing the value of access to administrative justice within the broad, on-the-ground context of different administrative actors. Overall, this article presents an analysis of the dynamic interaction between marginalized populations and the administrative state in order to move forward judicial and other contemporary discussions about access to administrative justice and how it should be defined.

This article analyzes interview data from nine Black criminalized individuals and nine defence lawyers (five white, three Black, and one Arab) about the utility of heightened race visibility in sentencing proceedings. The data reveals a schism between these groups, reflecting different responses to what I refer to as “the paradox of visibility.” For Black people, this paradox occurs when an emphasis on race may simultaneously have a deleterious and ameliorating impact on sentencing. Defence lawyers and judges laud the ameliorative potential of race visibility, which obscures the genuine concern shared by criminalized Black individuals about how they believe their Blackness betrays them in the criminal sentencing context. In this regard, the article explores ethical concerns arising from this paradox. It also argues that race-based strategies at sentencing are not a no-cost or low-cost proposition. Indeed, from the criminalized research participants’ point of view, the cost is not only the risk that an emphasis on race may result in a higher sentence, including longer and harsher custodial sentences, but also an affront to their dignity. In contrast, the defence lawyers strongly supported increased racial visibility to combat what they saw as judicial and prosecutorial intransigence to grapple with race in sentencing proceedings. These perspectives are critical for sentencing judges tasked with sentencing Black individuals and for lawyers who are developing and deploying legal strategies to assist their Black clients.

To what extent can statements made by an applicant, intrinsic to a patent specification, be accepted as facts? Is this question context-dependent, or is there a hard-line rule that applies across the board? Should it matter what patent law issue is involved: patentable subject matter; obviousness; claim construction? Perhaps most importantly, why does this question matter? What is at stake? This piece argues that there should be a judicial apprehension towards recognizing the blanket proposition that applicant statements within a patent specification can be accepted as matter of fact supporting a determination regarding common general knowledge. Specifically, there should be a judicial apprehension towards endorsing the acceptance of statements made within a patent specification as factual determinations regarding the state of the art or common general knowledge of a hypothetical skilled artisan, when such assertions lack reference to any factual source that is extrinsic to the patent document. Broadly, this piece argues that the law/fact distinction should be drawn along the corresponding intrinsic/extrinsic distinction.

The Supreme Court has chosen to exclude from intervention the voices of those directly impacted. This exclusion rehearses Canada’s longer history of excluding sex workers.

In their early decisions under the Charter of Rights and Freedoms, the Canadian courts described religious freedom as a liberty that protects the individual from state coercion in religious matters. According to the courts, the individual has both the right to practice their religion without state interference and the right not to be compelled by the state to perform a particular religions practice. However, in later judgments the courts have also, or instead, described religious freedom as a form of equality right that requires the state to remain neutral in religious matters – to not favour the practices and beliefs of one religious community over those of another. Underlying the courts’ judgments is a complex conception of religious commitment in which religion is viewed as both a personal commitment to a set of beliefs about truth and right and as a cultural identity. The challenge for the courts has been to fit this complex conception of religious commitment into a constitutional framework that relies on a distinction between individual choices or commitments that should be protected as a matter of liberty, and individual or shared attributes that should be respected as a matter of equality. The constitutional framework imposes this distinction between judgment and identity on the rich and complex experience of religious commitment.

        As much attention is turned to regulating AI systems to minimize the risk of harm, including the one caused by discriminatory biased outputs, a better understanding of how commercial practices may contravene anti-discrimination law is critical. This article investigates the instances in which algorithmic price personalization, (i.e., setting prices based on consumers’ personal information with the objective of getting as close as possible to their maximum willingness to pay (APP)), may violate anti-discrimination law. It analyses cases whereby APP could constitute prima facie discrimination, while acknowledging the difficulty to detect this commercial practice. It discusses why certain commercial practice differentiations, even on prohibited grounds, do not necessarily lead to prima facie discrimination, offering a more nuanced account of the application of anti-discrimination law to APP. However once prima facie discrimination is established, APP will not be easily exempted under a bona fide requirement, given APP’s lack of a legitimate business purpose under the stringent test of anti-discrimination law, consistent with its quasi-constitutional status. This article bridges traditional anti-discrimination law with emerging AI governance regulation. Pointing to identified gaps in anti-discrimination law, it analyses how AI governance regulation could enhance anti-discrimination law and improve compliance.

Using insights from Critical Race Theory (“CRT”), this article illustrates how Canada’s proportionality-driven criminal sentencing structure (re)produces, invigorates, and sustains pernicious race-based discourses. Indeed, the concept of proportionality can reinforce archaic norms and notions about Black bodies’ status, belonging, identity, and worth. Moreover, the demands of proportionality, with its fixation on calibrating blame, can distort and pathologize Black lives in a perverse attempt at sentence mitigation, resulting in what I refer to as the paradox of visibility. The article uses an analysis of Impact of Race and Culture Assessments (IRCAs) reports to explore paradoxical race visibility. This allows us to better comprehend and redefine the impact of incorporating race awareness into the criminal sentencing process, which can have positive and negative consequences. Indeed, introducing race at the sentencing phase is a challenging and perhaps even a paradoxical manoeuvre—but one that may also be logical insofar as we operate within the cruel illogic of white supremacy.

A decade after the Toronto G20 summit, two mass class actions brought against the Toronto Police Service (TPS) by people caught up in kettles and/or imprisoned at a temporary detention center have been settled. After a detour to the Supreme Court of Canada – the TPS unsuccessfully attempted to have the lawsuits dismissed – a settlement which includes $16.5 million in financial compensation, expungement of arrest records, and “a public police acknowledgement regarding the mass arrests and the conditions in which protesters were detained” has been reached. The settlement still needs to be approved by Ontario’s superior court in October 2020, but there is no doubt that it is a victory – a rare example of police being held at least somewhat accountable in the aftermath of social movement repression. Beyond the TPS’s “acknowledging” of their misdeeds, however, it is worth thinking through the potential impact of this settlement – and especially the specifics of the TPS’s “commitment to detailed changes regarding policing of future public demonstrations” – on street protest and broader organizing in Toronto.

Until recently, parties to a contract did not owe any obligations of good faith towards each other in Canadian common law jurisdictions. There was no obligation of good faith in the negotiation process, none in the performance of contractual obligations, and only limited such obligations in contract termination.[1] There was, for example, no obligation not […]

This article documents and explores the history of the e-scooter ban in Toronto, Ontario, Canada as a pathway to examining broader issues concerning the eradication of accessibility barriers in public spaces for pedestrians with disabilities and respectful uses of consultation to develop disability-inclusive regulations. The use of e-scooters poses a particular dilemma to accessibility for persons with disabilities. On the one hand, the concept of disability contemplates attitudinal and environmental barriers, as noted, for example, in the Preamble of the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD). Attitudinal and environmental barriers have traditionally stemmed from interests that are inherently opposed to the collective interests of disabled persons. Examples include attitudes that project stigma against persons with disabilities or a focus on seeking to preserve historical features of the built environment for their aesthetics, without consideration for their accessibility or functionality for disabled persons. They have also generally originated in periods of historical marginalization or exclusion of persons with disabilities. By contrast, e-scooter debates and connected debates regarding the regulation of micromobility vehicles, contain at least one dimension that could very well be shared with persons with disabilities—that is, the preservation of the environment. E-scooters are also a phenomenon of contemporary disability exclusion: policies concerning environmental sustainability, including those promoting e-scooters, are being developed contemporaneously with growing international and national legal recognition of disability rights. These factors render arguments over appropriate regulation of the use of public spaces more complex as, within those arguments, one sees two competing positive policy directions that need to be addressed: the rights of pedestrians with disabilities and environmental sustainability. This article concludes with theoretical and practical suggestions for strengthening regulatory policymaking to address these and other complex intersectional issues of accessibility policy design.