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Commissioned by the Association of Family and Conciliation Courts, Ontario Chapter.

There has been a proliferation of writing about commercial litigation funding (“CLF”) over the past few years, in both the academic and popular press. Too often, the literature presents a narrative of extremes. Commentators are either wholly against CLF on the basis that it gives rise to unethical behaviour and the commodification of our civil justice system, or wholly in support of it on the basis that it promotes access to justice and levels the playing field. A conference held at the University of Windsor Law School in July, 2013 brought together leading scholars, judges and lawyers from the United States, Australia and Canada to engage in a nuanced discussion about CLF that mediated between these extreme polarities. The first conference of its kind in Canada, discussion was focused on four themes: regulation, access to justice, ethics and impacts on class actions. In this article, the conference organizers, Dean Camille Cameron and Professor Jasminka Kalajdzic, survey the principal issues in the debates around CLF, summarize the key points in the conference papers, and identify the basic principles that might inform the regulation of litigation funding in Canada and elsewhere.

In this article, I investigate the nature of exceptions to copyright infringement or users' rights. Are exceptions to copyright infringement rights or privileges? Are they mandatory? While copyright users' rights and interests have triggered interest and debate amongst scholars, relatively less attention has been given to defining their precise nature, and on the consequences of the main characteristics of exceptions to copyright infringement on copyright law and policy. I examine the interplay between the users' rights set out in the Copyright Act and how they can be altered or overridden by non-negotiated standard end-user agreements and TPMs. To this end, I refer to a sample of non-negotiated standard terms of use for the online distribution of books, musical recordings and films. I investigate the nature of exceptions to copyright infringement, including through Hohfeld's theory of jural correlatives. I look at the policy considerations behind these questions and conclude by reflecting on the damaging effects of the uncertain nature of users' rights on the coherence and, ultimately, the legitimacy of copyright law.

What does access to justice have to do with legal services regulation? Can we make it easier for people to defend their legal rights and pursue social justice by liberalizing rules about the provision of legal services? This brief paper will begin by reviewing the economic argument that legal services regulation impedes access to justice. Although this argument has strong appeal in theory, deregulatory reforms have not always delivered their accessibility benefits which the economic critique promises. Moreover, economic criticism of legal services regulation tends to assume that lawyers are simply market actors, as opposed to members of an independent profession whose maintenance has value to clients and to the public. The paper will therefore conclude by suggesting that empirical inquiry using a new legal realist (NLR) methodology can make a constructive contribution to this debate.

Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (GLP) by Paul Schiff Berman is a legal pluralist’s contribution to the study of local and global regulation. In a tour de force, Berman articulates clear and concise arguments in support of adopting a pluralist lens (coined as a cosmopolitan pluralist perspective). He magnificently traverses the multiple and complex bodies of literature that seek to understand the various inchoate regulatory regimes, actors, norms, and processes, to simply state that we must harness the benefits of the overlapping legal authorities. The overlapping legal authorities for Berman produce legal hybridity, which is a product of globalization(s).

Mass harm exerts enormous pressure on civil justice systems to provide efficient but fair procedures for redress. In this context, settlement of mass disputes is easily understood as a common good. Yet settlements involving hundreds or thousands of claims, often across jurisdictions, raise concerns about the substantive fairness of the compromise reached by lawyers, and the ability of the court system to ensure meaningful oversight. Unburdening the judicial system from mass claims comes at a price; how much rough justice are we prepared to accept?

Ever since the decision of the Supreme Court of Canada in Semelhago v. Paramadevan , which changed the law on the availability of specific performance for breach of contract, property developers have found the door to that remedy effectively closed. The recent decision of the Supreme Court in Southcott Estates Inc. v. Toronto Catholic District School Board confirms that trajectory despite the valiant attempts by some developers to bring their cases within the rubric of the Semelhago decision. However, Southcott is not so much a case about specific performance, as it is a case about the obligation to mitigate, and how a defendant can prove that a plaintiff has failed to make reasonable efforts to mitigate. It is also a case where the plaintiff sought to plead that it was a ‘volume buyer’, the obverse of a ‘volume seller’, and whether this fact meant that it did not have to take the profit from a subsequent purchase into account as an act of mitigation.

Class actions have an established place in Canadian and Australian legal systems but still attract considerable debate in practice, politics and the academy. One debate concerns whether there is any legitimate justification for class actions beyond the procedural facilitation of grouped proceedings. ‘Access to justice’ and ‘judicial economy’ are the goals commonly said to justify class action provisions. On one view, these goals can be achieved through civil procedures that have compensation as their sole remedial goal. At the same time, many jurisdictions that have created class action regimes also provide as another justification, the promotion of behavioural modification and deterrence of wrongdoers. The principal way behaviour is modified and deterrence is achieved is by ensuring that the wrongdoer is forced to internalise all the costs of any harm that may have resulted from the wrongful act, and - depending on the particular facts of the case and whether the cause of action supports recovery of profits - to disgorge any profits earned from the wrongful conduct. Compensating victims may partially and concurrently achieve deterrence if all victims can be identified and the true nature of their loss quantified. However, in many claims where a class action may be the most advantageous mechanism to compensate victims, not all victims may be able to be identified or, because the amount of each class member’s claim is small, the cost of administering the claim may outweigh any benefit to individual class members.

High prices and lack of innovation have placed expert legal services beyond the reach of too many Americans and Canadians. Is legal services regulation exacerbating common law North America’s access to justice problem? Does regulatory maintenance of a unified legal profession, and insulation of that profession from non-lawyer influence, make it more difficult for people here to meet their legal needs? This article argues that, although regulatory liberalization is not a magic bullet for the accessibility of justice, there is strong evidence of a link between regulation and access. North American lawyer regulators need to understand, and work to reduce, the effects of their policies on the accessibility of justice.

‘Inquisitorial processes’ refers to the inquiry powers of administrative governance and this book examines the use of these powers in administrative law across seven jurisdictions. The book brings together recent developments in mixed inquisitorial-adversarial administrative decision-making in a hitherto neglected area of comparative administrative process and institutional design. Reaching important conclusions about their own jurisdictions and raising questions which may be explored in others, the book's chapters are comparative. The contributors to this collection, who are leaders in the field, explore the terminology and scope of the concept of inquisitorial process, justifications for the use of inquiry powers, the effectiveness of inquisitorial processes and the implications of the adoption of such powers. The book will set in motion continued dialogue about the inherent challenges of balancing policy goals, fairness, resources and institutional design within administrative law decision-making by offering theoretical, practical and empirical analyses.

This paper assesses the Supreme Court of Canada's elaboration of 'user rights' in two significant copyright law decisions rendered after its landmark ruling in CCH v. Law Society of Upper Canada.

Every week in Canada, a woman is killed by a current or former intimate partner. It is a serious systemic problem. To put it in perspective, the number of women killed by their intimate partners in 2011 was roughly comparable to the number of gang-related homicides. Many, if not most, of these cases involve intimate femicide, a term used to give effect to the gendered nature of the crime. R v. Angelis (2013) 99 CR (6th) 315 (Ont CA) appears to have been a case of intimate femicide. Unfortunately, the Court of Appeal did not construct the case in this fashion and, in ordering a new trial, failed to properly assess the relevance of the accused’s post-offense conduct on the critical issue of intent.

This essay will analyze William Twining’s work from a post-colonial perspective. It will be argued that Twining is constrained by the structural limitations inherent in his ‘general jurisprudence,’ reflected in three aspects of his analysis: firstly, Twining appears to disregard the imperialistic historical roots of the Western legal tradition. Secondly, Twining’s definition of globalization, which marginalizes the economic dimensions of globalization, fails to grasp the important historical role of capitalism in the emergence of globalization, and how this affects his very understanding of 'space' and 'proximity'. Finally, this essay will end with an examination of the relationship between the attainment of knowledge and power relations in the context of the Third World. It will be shown that Twining disregards how Western representations of non-Western legal traditions could eventually develop into a discourse that ultimately perpetuates new forms of domination.

Over the past several years, the regulation and accreditation of legal education in most common law jurisdictions is shifting significantly, with greater emphasis on ‘outcomes’ or ‘outputs’. In Canada, the Federation of Law Societies of Canada is entering more boldly into the approval and accreditation of law schools. In Australia, legal regulators are increasingly nationalizing their approach to legal education, and developing new ‘threshold learning outcomes’ for law schools. In the United States, the American Bar Association is shifting to a more outcomes-focused regulatory regime. The result of these accreditation processes is not entirely clear: however, most jurisdictions have set out their respective approaches in later-stage draft form, allowing an initial comparative view. While debate on regulation, accreditation and assessment in all three countries has been vigorous, a notable gap exists in discourse around the role of clinical legal education, particularly in Canada and Australia. This article then explores how clinical education fits either explicitly or implicitly in these accreditation schemes, focusing on the strengths and weaknesses of competency/outcome regulation from a clinical legal education perspective. Although there is potential for clinical legal education to be used as a ‘competency boot camp’, weakening the reflective, deep and integrative assessment approach that is the cornerstone of mature, ‘third wave’ clinical legal education, there is also potential for greater commitment to integration of clinical legal education into the law school curriculum more generally. This article then sets out the importance of curricular integration and self-assessment to realize the full potential of not only clinical legal education, but the aspirational vision of lawyering many hope to achieve.

Traditional lawyer self-regulation, which has been abrogated or significantly compromised in most wealthy countries, lives on in anglophone North America. In the United States and in common law Canada, lawyers make and enforce almost all of the rules which govern legal service delivery. These regulatory regimes are also distinctive in their (i) maintenance of a single, unified occupation of "lawyer," (ii) insulation of law firms from non-lawyer ownership, and (iii) near-exclusive regulatory focus on individual lawyers as opposed to law firms. Other wealthy English-speaking countries (the UK, Ireland, Australia and New Zealand) have gradually abandoned all of these elements of traditional lawyer regulation over the past 40 years.

This paper argues for a multi-variable approach to identifying analogous grounds under section 15 of the Canadian Charter of Rights and Freedoms. The author begins with a review of Supreme Court of Canada jurisprudence to demonstrate how the Court has consistently applied such a multi-variable approach. In the course of that review, he notes the lack of clarity in the core factors considered by the Court, namely, immutability and constructive immutability. Then, the author argues in favour of a multi-variable approach because it is more sensitive to the complexities of identity formation and because it is more effective at recognizing grounds worthy of protection under the Charter.

The combination of human-computer interaction (“HCI”) technology with sensors that monitor human physiological responses offers state agencies purportedly improved methods for extracting truthful information from suspects during interrogations. These technologies have recently been implemented in prototypes of automated international border kiosks, in which an individual seeking to cross a border would first have to interact with an avatar interrogator. The HCI system uses a combination of visual, auditory, infrared and other sensors to monitor an individual’s eye movements, voice, and various other qualities throughout the interaction. This information is then aggregated and analyzed to determine whether the individual is being "deceptive". This paper argues that this type of application poses serious risks to individual rights such as privacy and the right to silence. Highly invasive data collection and analysis is being integrated into a technology that is designed in a way that conceals the full extent of the interaction from those engaging with it. Border avatars are being misconstrued as technological versions of a human border agent, when in fact the technology enables a substantially more invasive interaction. The paper concludes by arguing that courts, developers, and state agencies institute strict and strong limits on how this technology is implemented and what information this emerging technology can collect from the individuals who engage with it.

Access to information (ATI) dispute resolution is an administrative context in which polyjuralism abounds. This chapter examines the models of dispute resolution used by the legislative officers that have been statutorily created to resolve access to information complaints in Canada. Since the enactment of Canada’s first freedom of information legislation by the federal government in 1983, a debate has emerged as to whether an investigatory approach based on the ombuds tradition or an adversarial adjudicative approach is most suitable for achieving effective regulatory oversight. This chapter contributes to the debate in two ways. First, it defines three typologies for access to information dispute resolution regimes: investigatory, adjudicative, and mixed investigatory-adjudicative, using the access to information statutory regimes of the 14 territorial Canadian jurisdictions as a case study. With respect to mixed investigatory-adjudicative dispute resolution, it argues that the appropriate classification of Access to Information Commissioners endowed with both ombuds-like powers and order-making capacities is to understand them as independent accountability agencies. This avoids concerns about the 'citizen defender' image and denaturing the ombuds’ tradition, and instead properly focuses on the Commissioner as an agent of the policy goal of promoting governmental transparency. Second, this chapter takes an empirical look at how Canada's federal Office of the Information Commissioner is faring with respect to the four theoretical values of: i) institutional competence, ii) access to justice, iii) efficiency, and, iv) effectiveness in promoting government transparency. The empirical data for this discussion is taken from the preliminary results of an online survey administered to access officials in the federal government.

Professor Ladeur argues that administrative law’s postmodernism (and by extension Global Administrative Law) necessitates that we move beyond relying on ideas of delegation, account- ability and legitimacy. Global Governance, particularly Global Administrative Law and Global Constitutionalism, should try to adapt and experiment with the changing nature of the postmod- ern legality and support the creation of norms that will adapt to the complexities of globalisation. Ladeur’s contestation, similar to GAL’s propositions, can be challenged. By taking the International Criminal Tribunal for Rwanda, a significant contributor to the field of international criminal law, as an example, it is suggested that the creation of networks that Ladeur makes visible may not account for ‘regulatory capture’. This paper will argue that from the outside, the proliferation of networks may suggest that spontaneous accountability is possible. A closer look, however, drawing on anthropological insights from the ICTR, reveals that international institutions are suscepti- ble to capture by special interests. Furthermore, there are two central themes that animate the response to Professor Ladeur: the political nature of international institutions and the history of international law, and the role of institutions in this history.

This paper considers the recent Ontario Court of Appeal decision in Jones v Tsige. In this unprecedented case, a bank customer was allowed to sue a bank employee personally for the tort of invasion of privacy after the employee surreptitiously accessed her bank account. The case is significant due to its introduction, for the first time, of an American cause of action under the tort of invasion of privacy. In order to fashion the plaintiff with the personal remedy, however, the Court has failed to consider the application of the Tournier doctrine that has established that banks owe a duty of secrecy to their customers. In so doing, it is argued that the Court has undermined an established tradition of law that provides for a better approach in analyzing the issue from a banking perspective than that used by the Court.