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This paper reviews the concept of equity's maxims in Canada. Recently, the Supreme Court of Canada has cited a number of maxims of equity and attributed to them the position taken by Spry, that the maxims reflect an ethical quality and values that inform the exercise of equity's discretion. In this paper I trace the development of the concept of equity's maxims to determine whether they have any relevance to courts today. I contrast treatment in the USA and suggest that equity's maxims still have some residual use in defining equity's distinctive methodology.

Jurisdictions that have created class action regimes provide as one of their justifications the promotion of behavioural modification or deterrence of wrongdoers. Peculiar to some class action regimes is the phenomenon of cy-pres distributions, in which the class counsel and judge choose a form of distribution for class members. The justification for cy-pres distributions is to ensure that a defendant receives nothing back from the monetary award and is thereby required to internalize the true cost of wrongdoing, or to disgorge the profits of wrongdoing. The cy-pres remedy is seen as furthering the deterrence function of class actions. I argue that it is difficult to find empirical evidence to substantiate the claim of behavioural modification in class action litigation. However, if courts are serious about deterrence, then I suggest that reorienting the focus of cy-pres distributions to properly account for behavioural modification may provide a better chance of that outcome.

Throughout Commonwealth jurisdictions, courts, initially relying upon their inherent jurisdiction, have created what are called Anton Piller injunctions or orders. These orders are akin to a civil search warrant. They require, on pain of being held in contempt of court, the defendant to permit the plaintiff entry to the defendant’s premises so as to secure property or documents for which the plaintiff has been able to demonstrate that there is a high risk of loss or destruction if the plaintiff had commenced its action with the usual filing of statement of claim and notice of suit. The order has been described as the ‘nuclear weapon of civil procedure’. The order arose in much the same fashion as the development of Mareva injunctions, or what are now known as ‘asset preservation orders’. Viewed as being at the extremes of a court’s powers, the orders have generated a great number of procedural safeguards, both as to what a plaintiff must prove to obtain the order as well as in its execution once obtained.What follows is a brief overview of the development of Anton Piller orders in Canada, together with some of the problems and solutions engaged by this extraordinary order.

“…it is both impressive and effective to understand the culture in which you are doing business and demonstrating that understanding to clients. ‘There are cultural sensitivities even when you are dealing domestically,’ said Neena Gupta, a partner with Gowlings in Waterloo who heads up the firm's India Practice Group. Such cultural skills – speaking another language, being familiar with another culture, having lived outside Canada – while often acknowledged as softer skills are still seen as an enhancement to core legal skills. “We are conscious of the fact that a candidate with linguistic ability and global awareness does bring something to the table that others do not,” said Gupta. That something is very good for the business of law.”

Notwithstanding Pierre Trudeau's famous quote from 1967 that the "state has no business in the bedrooms of our nation", adults in Canada who engage in certain kinds of consensual sexual activity in private continue to face the stigma of criminalization and, in some cases, the very real possibility of imprisonment.This comment examines two such situations: (i) section 159 of the Criminal Code and anal intercourse; and (ii) the judicial nullification of consent in cases involving S/M and other sexual practices, like erotic asphyxiation, as evidenced most recently in the case of R. v. A.(J.) which is currently before the Supreme Court of Canada.

The law of entrapment has received very little scholarly attention in Canada despite the fact that its reliance on branding neighbourhoods and other locations as "high crime areas" and its low visibility encounters serve to engender discriminatory policing. This article relies on recent Charter decisions in other contexts to argue that an anti-racist lens is now required as part of the assessment of the bona fides of the investigation branch of the entrapment test from R v Barnes.

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 to the concrete and attitudinal barriers experienced by workers with mental health issues.

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. In Part One of this paper ((2010) 23 I.P.J. 83) I lay out the theoretical framework of property and copyright theory. In this Part Two, I apply the theoretical framework to define the nature of the copy of a copyrighted work, as well as its justifications. I also explore 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.

One of the main obstacles in criminal and civil proceedings involving intelligence and executive officials is the objection to disclosure of information and evidence on the basis of national security privilege. Known as the "state secrets privilege" in the United States and “public interest immunity” in England, this evidentiary rule has been invoked successfully in an increasing number of cases in the US and England. Indeed, the privilege has been identified as one of the most serious obstacles to effective human rights remedies. In this essay, I discuss the use of national security privilege in civil litigation in the three jurisdictions, focusing specifically on the role the privilege has played in blocking claims by purported torture survivors and other victims of anti-terrorism activities in the US and England. I also evaluate the potential impact of the privilege on a torture survivor’s civil claim, when such a case ultimately goes to trial in Canada. My conclusion, based on the approach courts have taken to the public interest balancing exercise, is that it will be very difficult for private litigants to obtain disclosure of information over which a claim of privilege has been made.

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.