Your search

This paper analyzes the Supreme Court of Canada’s decision in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center). Almost 12 years after Captain Javed Latif’s ordeal began, the Supreme Court of Canada affirmed a decision by the Quebec Court of Appeal overturning a finding by a Quebec Human Rights Tribunal that Bombardier had discriminated against him. While there is much to celebrate in the Court’s reasons, the decision ultimately exposes and perpetuates a deep unwillingness to challenge the stereotyping of Muslims as terrorists in Canada. In response, this paper seeks to excavate Latif’s fuller story largely through a reading of silences. The Tribunal advanced two discrete but intersecting theories in its finding of discrimination. The Court focused, artificially, on one and found “no evidence” of discrimination. The Supreme Court not only ended Captain Latif’s quest for a remedy, it re-wrote his narrative by moving attention away from key facts involving his interactions with Bombardier. The Court’s chosen narrative also regulated the collective fears and aspirations of Muslim communities in Canada to the realm of the unsaid. At a time when Muslims are struggling to counter popular and official stereotypes that construct them as incorrigible barbarians and outsiders who are prone to terrorism and violence, it is important to create spaces for counter-narratives to be heard and lived experiences to be validated. Moreover, litigants who dedicate years of their lives to advancing social justice causes deserve the dignity of recognizing their own stories when relayed back to them by the legal process. The comparison of the Court’s reasons with that of the Tribunal thus represents a political act of hearing counter-narratives while also critically analyzing the Supreme Court’s claim that the Tribunal had little or no evidence before it to ground its finding of discrimination.

Tremendous confusion has revolved around the theory and application of the doctrine of essential elements in Canadian patent law ever since the Supreme Court of Canada first introduced the doctrine in Free World Trust c. Électro Santé Inc. In recent years, the Canadian Intellectual Property Office’s (CIPO) interpretation and application of the doctrine in its patent application examination guidelines has been the subject of considerable criticism from the Canadian patent profession. However, CIPO’s misapplication of the doctrine in recent years’ Patent Agent Qualifying Examination has received relatively little attention. This paper examines the application of the doctrine of essential elements in recent years’ Canadian Patent Agent Qualifying Examination. The analysis begins with a thorough and comprehensive review of the doctrine of essential elements under Canadian patent law. The analysis reviews the last ten years’ Canadian Patent Agent Examination, with a focus on recent years’ emphasis on the doctrine of essentiality. Despite the fact that the doctrine itself is still unsettled under Canadian law, the approach taken on recent years’ Patent Agent Exams is at best an ambiguous, and at worst an inaccurate application of the doctrine. This paper concludes by demonstrating that the concerns surrounding the doctrine of essentiality may be significant contributing factor to invalidity issues surrounding recent years’ Patent Agent Exams.

One of the greatest controversies in contemporary copyright law is the introduction of technological protection measures (TPMs) at the international and national level. By creating a separate parallel regime for digital copyright works, TPMs shifted the paradigm by redefining the rules of engagement of how users would increasingly access and experience digital copyright works.

English Abstract: The law has historically granted damages for some forms of non-pecuniary losses. In doing so, courts have freely admitted that there is imprecision in quantifying such losses and that there is no quantitative and objective calculus on pain and suffering. Against this background, new research on how hedonic losses are experienced by a victim provide an opportunity to review how non-pecuniary losses should be compensated. Some of this research suggests that experiences of anxiety, frustration and suffering may not affect a victim’s happiness as great as is presupposed in current models of compensation, and further, that its impact may also be ameliorated by the offering of an apology. In this essay, the author asks whether the law can incentivize tortfeasors to offer an apology as an element in mitigating compensatory damages for non-pecuniary loss.

"Personal plight" is the sector of the legal services industry in which the clients are individuals, and the legal needs arise from disputes. This article proposes that competition among personal plight law firms is suppressed by three demand-side phenomena. First, consumers confront high search costs. Identifying competing law firms willing and able to provide the needed services often requires significant expenditure of temporal and psychological resources. Second, comparable price and quality information about firms is scarce for consumers. Both of these factors impede comparison shopping and reduce competitive pressure on firms. A third competition-suppressing factor is observed in tort legal service markets, where offerings are typically priced on a contingency basis. Contingency fees have relatively low salience to consumers, and this reduces consumers' willingness to negotiate and comparison-shop on the basis of price. This analysis is supported by the author's empirical research with Ontario personal plight lawyers as well as the existing literature. The article concludes by suggesting possible consequences of this analysis for regulatory policy.

This chapter explores the more general and arguably distinct ethical obligations of those who practice criminal law either as defence lawyers or prosecutors. As you read this chapter, you should ask yourself whether you are satisfied with the justifications offered for the ethical rules that we have carved out for defence lawyers and prosecutors in this context and whether you think we have achieved the right balance. To assist you in thinking about the modern-day ethical roles of criminal lawyers, we begin with two historical cases, one from England and the other from Quebec, which frame the obligations in arguably extreme terms – defence lawyers justified in unbridled zealousness within the bounds of the law on the one hand, and the prosecutor as a “minister of justice” on the other. In reading the descriptions of the cases consider whether you think the duties of defence lawyers and prosecutors should be so different. What would justify that sort of difference? What common framing for the duties of defence lawyers and prosecutors might be available?

The majority of proposals for international antidumping reform focus almost entirely on the relevant economic factors- consumer welfare losses and gains. Therefore, almost all proposals come to the exact same conclusion; in light of the enormous welfare losses suffered by domestic consumers, international antidumping law should be repealed in its entirety, or at least replaced by some form of international competition law. However, this analysis views the issue of antidumping law through the constructivist lens, and more specifically, the embedded liberalism view of international trade law. From this perspective, economics alone does not grasp the constitutive realities at play in antidumping law; domestic perspectives of legitimacy and fairness shape the contours of international antidumping law, and these constitutive norms espouse a view that protectionism, in a variety of different shapes and forms, is as much a part of international trade law as the traditional laissez-faire liberalist approach. This paper concludes that public interest inquiries, which form part of a small number of countries’ antidumping laws, embraces the constitutive realities at play in antidumping law and provide an opportunity for development of legitimate international antidumping reform. This paper examines the Canadian approach to public interest inquiry in antidumping, including recent developments. This paper concludes that the current Canadian experience demonstrates that embracing a public interest inquiry as part of antidumping reform may provide true hope for future development based on a embedded liberalism view of international trade relations.

Justice Marc Rosenberg will be remembered as one of Canada’s greatest criminal law jurists by those fortunate enough to have worked with him, to have appeared before him, and now, by those who study and rely on his jurisprudence. He was a jurist who cared deeply about the fairness of the criminal justice system and he strived in every decision to arrive at a just result on the law and the facts. Many of Justice Rosenberg’s judgments reflect a concern for the constant struggle of triers of fact to accurately and fairly assess the credibility and reliability of evidence in determining historical events whether it be the testimony of the accused or central Crown witness. This piece explores three decisions from Justice Rosenberg which highlight the different ways in which stereotyping can distort the assessment of credibility and reliability in sexual assault cases: R v. Levert, R v. Rand and, R v. Stark.An important aspect of ensuring accuracy and fairness for Justice Rosenberg was the need to carefully regulate inductive reasoning: the engine that drives judicial reasoning and, ultimately, fact finding. The tools used for inductive reasoning include the decision maker’s or the law’s application of what it sees as common sense, logic and human experience. As an endeavour that explicitly relies on so-called common sense and generalizations about human experience, which shift with time, inductive reasoning can be highly subjective and can easily become a breeding ground for implicit bias, discriminatory stereotyping and unreliable decision-making.

The impact of drones on women’s privacy has recently garnered sensational attention in media and popular discussions. Media headlines splash stories about drones spying on sunbathing or naked women and girls, drones being used to stalk women through public spaces, and drones delivering abortion pills to women who might otherwise lack access. Yet despite this popular attention, and the immense literature that has emerged analyzing the privacy implications of drone technology, questions about how the drone might enhance or undermine women’s privacy in particular have not yet been the subject of significant academic analysis. This paper contributes to the growing drone privacy literature by examining how the technology can be especially apt to impact women’s privacy. In particular, various features of the technology allow it to take advantage of the ways in which privacy protection has traditionally been - and in many cases continues to be - gendered. While the analytical focus is on the gendered privacy impacts of drone technology, the article and its conclusions are about more than women's privacy. Examining some of the differential impacts of the technology, and the laws that guide its use, helps to reveal broader inequities that can go unseen when we think about technology without social context. The paper ultimately argues that drone regulators cannot continue to treat the technology as though it is value-neutral - impacting all individuals in the same manner. Going forward, the social context in which drone technology is emerging must inform both drone-specific regulations, and how we approach privacy generally. This paper is framed as a starting point for a further discussion about how this can be done within the Canadian context and elsewhere.

Canada is often cited as one of the principal sources of proportionality analysis --- an approach to the determination of limits on constitutional rights that has been adopted in many jurisdictions. The two-step structure of constitutional rights adjudication is built on the idea that these rights are the basic conditions of individual autonomy or liberty that must be protected from the demands of collective welfare. At the first stage of the adjudication the court determines whether the restricted activity falls within the scope of the right. At the second stage, the court balances the right against the competing interest advanced by the restrictive law, to determine whether the restriction is justified. Yet few of these rights fit this individual liberty model and are better understood as social or relational in character – protecting different aspects of the individual’s interaction or connection with others in the community. If we recognize that most constitutional rights do not simply protect individual autonomy but instead protect different aspects of human flourishing or dignity within community then two things may follow. First there can be no single generic test for limits on rights. The form or character of “limitations” on these rights may differ in significant ways. Second, the two-steps of adjudication may often be difficult to separate or the separation may seem quite artificial. Many of the issues addressed by the courts will not fit easily into the two-step structure of analysis, because the “competing” interests are really different dimensions of a social relationship.

In the landmark Canadian racial profiling case of R v Brown, an unanimous Ontario Court of Appeal firmly recognized that racial profiling is a reality that is “supported by significant social science research.”

Only registered Canadian patent agents may represent others before the Canadian Patent Office. To qualify as a registered Canadian patent agent, candidates must complete an apprenticeship followed by successfully passing the Canadian patent agent examination. This article analyzes the current regulatory framework for Canadian patent agents. Based on a theoretical, historical and international comparative analysis, this article demonstrates that the current Canadian regulatory model has lost sight of its purpose and is symptomatic of a greater crisis of legitimacy plaguing the Canadian patent agent profession. The article highlights the need for greater reform of the Canadian patent agent regulatory framework in order to better serve the intellectual property needs of the Canadian public. This article concludes with a series of comprehensive recommendations for reform of the current Canadian regulatory framework.

The Canadian legal landscape is changing. Data over the last three decades show a trend toward larger law firms. Many of the country’s most storied ‘big law’ corporate firms have exploded in size and reach. Almost all of these firms maintain offices across the country and satellite offices in key international markets. Other large firms have been subsumed into foreign conglomerates pursuing expansion into the Canadian legal market. These developments have led to an increase in revenues and business opportunities for senior partners at these firms. It has also led to unprecedented challenges for the management of big law firms in Canada. As one of the former managing partners of Heenan Blaikie LLP (Heenan Blaikie), Norman Bacal knows this better than most.

This article revisits long-standing debates about objective interpretation in the common law system by focusing on a crime novel by Agatha Christie and judicial opinion by the Ontario High Court. Conventions of the crime fiction and judicial opinion genres inform readers’ assumption that the two texts are objectively interpretable. This article challenges this assumption by demonstrating that unreliable narration is often, if not always, a feature of written communication. Judges, like crime fiction writers, are storytellers. While these authors might intend for their stories to be read in certain ways, the potential for interpretive disconnect between unreliable narrators and readers means there can be no essential quality that marks a literary or legal text’s meaning as objective. Taken to heart, this demands that judges try to narrate their decisions more reliably so that readers are able to interpret the texts correctly when it matters most.