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Michael Trebilcock's superb new book was published on March 8th, 2022. Just the week before, something happened that shows just how important this monograph is. Just across the street from Trebilcock's office at the University of Toronto Faculty of Law is Queen's Park, the seat of the Ontario Legislature. On February 28th, the Government introduced Bill 88 there. The Bill was entitled The Working for Workers Act, and mostly pertained to employment standards for digital workers. However, tucked at the end of the Bill was legislation on a completely different topic. Schedule 5 would have abolished the College of Traditional Chinese Medicine Practitioners of Ontario. Since 2006, this entity had regulated practitioners of traditional Chinese medicine and acupuncture in the province. No consultation or warning preceded the surprising move to eliminate the College. Practitioners of Chinese Medicine, and the College itself, apparently learned about this plan on the same day as the rest of the province. It took the press and the Opposition a few days to notice what had been proposed. Questioned in the Legislature a few days later, Minister of Health Christine Elliot stated that abolishing the regulator would "allow more individuals to get back into the business of practising traditional Chinese medicine." The College's examinations and disciplinary proceedings would be replaced by an optional registration regime, under a regulator also charged with overseeing personal support workers. The licenses issued by the College to people who had passed the exams would henceforth have no legal significance. Premier Doug Ford, in a press conference later that day, blamed the College’s decision to administer licensing exams in English or French only, given that many aspiring practitioners were only fluent in Mandarin or Cantonese.

Four of Ontario’s highest-volume adjudicative tribunals became seriously dysfunctional in late 2018. Systemic delays of months or years arose, basic procedural rights were abandoned, and substantive miscarriages of justice became common in the fields of residential tenancy, human rights, and entitlement to benefits. This article describes these symptoms, before seeking to diagnose the underlying problem. The proximate cause of the dysfunction was the approach to tribunal appointments taken by the executive branch of Ontario’s government. Members appointed by the previous government were “de-appointed” en masse, and meritorious replacements were not found promptly. Some of these problems began prior to 2018. Shortcomings in the other two branches of Ontario’s government also contributed to the dysfunctionality. The Ontario Legislature’s statute governing adjudicative tribunals, and its committee overseeing appointments, lacked the powers and resources that would be necessary to safeguard them from executive neglect. Meanwhile, Ontario’s courts are not an accessible and proportionate forum to backstop adjudicative tribunals. Moreover, a review of the case law shows that they lack doctrinal tools to hold the Government responsible for systemic delay and counterproductive appointment practices.

While AI has been touted by industry as an innovative tool that will yield benefits for the public, examining the impact of AI from a substantive equality perspective reveals profound harms. As a leading national organization with a mandate to advance substantive gender equality, LEAF urges the government to centre substantive equality and human rights as the guiding principles when regulating the growing use of AI. With this goal in mind, LEAF submits that the scope of AIDA must - at least - be substantially expanded in order to enable regulations that can protect against all present and emerging harms from AI. Overview of Recommendations:1. Government institutions must be included in the scope of AIDA (remove s. 3) 2. The statutory definitions of “harm” and “biased output” must be expanded (amend s. 5) 3. Harm mitigation measures must not be restricted to “high-impact” systems (remove s. 7 and remove “high-impact” from ss. 8, 9, 11, 12; amend s. 36(b) so that different obligations for different types of systems can be developed in regulations)4. “Persons responsible” for AI-systems must explicitly include those involved in system training and testing (amend s. 5) 5. “Persons responsible” should be required to perform an equity and privacy audit to evaluate the possibility and likelihood of harm and biased outputs in advance of using, selling, or making available an AI-system. This audit must also be published and made available to the public (amend ss. 8 and 11; amend s. 36 to allow the Governor in Council to outline the requirements for an equity and privacy audit).6. Substantive equality and public consultation must inform the development of regulations (amend preamble and s. 35(1)).

This review essay considers the universality of dilemmas and tensions that arise in class action litigation, wherever practised. It does so by exploring the evolution of the Australian class action in its doctrinal, political and historical dimensions, as recounted in Michael Legg and James Metzger’s edited collection of papers, The Australian Class Action: A 30-Year Perspective. While the book is rooted in the Australian experience, it lays bare common themes across jurisdictions, such as the unique role of the judge in a class action, the challenges to effective representation, and concerns about the commodification of litigation.

At both the policy development stage and the point of implementing administrative processes, more attention must be paid to the hidden challenges faced by disabled women of lower income in securing and using income support benefits. Many of these gendered barriers figure within the administrative processes subsumed in the design and delivery of disability income support programs, and in governmental regimes connected (directly and indirectly) to them. As the Canada Disability Benefit Act progressed through the House of Commons, it was modified to include a guarantee that the application process be “without barriers, as defined in section 2 of the Accessible Canada Act”. The Canada Disability Benefit Act therefore presents an excellent opportunity to examine the ways in which statutory administrative regimes designed to further disability equality rights may result in barriers leading to administrative violence how to avoid that consequence. By drawing on the theoretical frameworks of bureaucratic disentitlement, administrative violence and disability equality, this article examines the lived realities of women with disabilities in order to suggest ways that income support systems can be more responsively and ethically designed. Administrative justice requires that users of income support programs obtain substantive equality-based service at first instance. This should be the experience of all users and would also avoid the time, energy and emotional investment of further appeals and/or judicial review. Moreover, both disability equality and administrative justice call for heightened attention to the lived experiences of disabled women with intersecting backgrounds in order to create equality-based and effective systems of disability income support.

In a global era marked by surging racial nationalism and penal populism , anti-racist and decolonial research, education, and training has been under increasing threat in academia across the world. Popular use of the universalizing language of liberal internationalism as the dominant frame in discussing these developments leaves gaps in our understanding as to what areas of academic freedom are under the greatest threat, why they are under threat, what levers of sanction and discipline are used to suppress certain areas, and for what ends. Such a frame risks contributing to overly abstracted conceptualizations of academic freedom (and unfreedom) that are unmoored from the realities of how power operates in educational institutions and attendant maldistributions of who can in fact claim and be protected by academic freedom and who cannot.In this article, I put into conversation three very different jurisdictional contexts where nationalist backlash to, and suppression of, anti-racist and decolonial education and scholarship is occurring. Specifically, it examines American anti-Critical Race Theory (CRT) campaigns, Chinese suppression of scholarship critical of its ongoing colonial suppression of non-Han native peoples in the Xinjiang Uyghur Autonomous Region (XUAR), and Israeli suppression of scholarship critical of its ongoing occupation of Palestinian territories through the case study of the ‘Spiro scandal’ at the University of Toronto (UofT) Faculty of Law. No good politics of academic freedom can emerge without centering an analysis of broader societal power and subordination. This is particularly true in the areas of national security and anti-racism, which form both distinct grounds for legal and political intervention in academic freedom. A national security threat engages certain types of legal grounds, particularly domestically (e.g. carceral responses to perceived counterterrorism, separatism, and extremism threats) while anti-racism justifies other types of intervention (e.g. civil rights complaints, removing of curriculum, firings, cutting funding) and can operate powerfully on a transnational level as well. I highlight three common elements in a transnational blueprint that can be observed in the creation, justification, and operation of selective nationalist attacks on academic freedom in anti-racist and decolonial education. My highlighting of these common elements are not meant to suggest any sort of equivalence between their operation, historical context, and/or relative severity, but rather to advance our collective understanding of the distributive nature of academic freedom politics and its relationship to power, race, and colonialism. Unpacking these campaigns transnationally complicates and unsettles the dichotomy between authoritarian and liberal populist censorship, giving us a more nuanced foundation by which to protect academic freedom and knowledge production in the service of racial justice and collective liberation.

Review of Michael Trebilcock, Paradoxes of Professional Regulation: In Search of Regulatory Principles. Canadian Business Law Journal, Vol. 67, page 247. This review considers the regulation of professions through an examination of Michael Trebilcock's new book. The key themes include risk arising from service-provision, alternatives such as licensing and registration, and the political economy of occupational regulation. Trebilcock's book combines the virtues of "thinking like a lawyer" and "thinking like an economist."

This essay explores the idea of “safety” in artificial intelligence (AI) and robot governance in Canada. Regulating robotic and AI-based systems through a lens of safety is a vital, but elusive, task. In Canada, much governance of robotic and AI systems occurs through public bodies and structures. While various laws and policies aim to ensure that AI and robotic systems are used “safely,” the meaning and scope of “safety” are seldom, if ever, explicitly considered. Safety is not a neutral concept and determining what kinds of technologies and applications are “safe” requires normative choices that often go unexpressed in the law and policy-making process. Broad appeals to the policy goal of “safety” can bring conduct or regulation into conflict with the actual safety of individuals and communities. Expanded thinking about “safety” and governance in relation to automated technologies is needed, along with greater precision in law and policy goals. Scholars and activists, particularly those advocating for the abolition of state policing and the prison industrial complex, have robustly critiqued and re-theorized the concept of “safety” in law and policy, particularly in ways that are cognizant of equitable and collectively beneficial outcomes. To imagine a society without policing and prisons, abolitionist thinkers engage in a systemic critique of how society, communities, and the state understand and seek to attain “public safety.” Thus, abolitionist writers engage in a deep rethinking of the concept of “safety” and methods for creating safety, generating a richness that would benefit current discussions about AI and robotics governance. This paper explores some of this scholarship and relates it back to how we might understand and critique the use of “safety” in AI and robotics governance in Canada.

This article centers on the profound discrepancy between efforts by First Nations to obtain injunctions against industry and the state versus the far more successful record of corporations and governments seeking to obtain injunctions against First Nations. We examine how the common law test for injunctions in struggles over lands and resources leads to these results. We begin with the history of injunctions in the Aboriginal law context, especially the development of s. 35(1) jurisprudence which ironically deprived First Nations of access to injunctions, despite an earlier period of successful defence of Indigenous land rights using this legal tool. We then focus on the doctrinal and political function of the “public interest” consideration in injunction cases, locating this concept within a broader political economy framework. Finally, we turn to the origins of the injunction as an equitable remedy and argue that the current imbalance in injunction success rates ought to be understood though a re-examination of equity within a broader historical trajectory of settler-colonial legality. We conclude that the heavy lifting done by notions of ‘public interest’ both relies on and obscures the circumvention and exclusion of Aboriginal treaty and constitutional rights from the law of injunctions and constitutes a de facto resolution of Aboriginal land rights in Canada. Finally, we ask what place, if any, exists in injunction jurisprudence for Indigenous law and governance.

Recent global financial crises have resurrected debates over money and its provision, not only in economics but in law and history. This presents an opportunity to revisit past moments when money and banks were viscerally political and considered central to our legal order. This paper looks at one such moment: the conflict between Upper Canada’s Conservatives and Reformers leading to rebellion in 1837. While little mentioned in the literature, the legal architecture of money and banks played a central role in the Reform movement. The British had previously flooded the colony with publicly issued notes to fund the war of 1812. By the 1830s, this government monetary issue was fully redeemed and replaced with notes issued by the colony’s first three chartered banks. The reformers saw those banks as public agents, playing a public role, but without democratic accountability. After several failed attempts to reform that system, they turned to establishing their own institution, named the Bank of the People. In doing so, they saw themselves not as merely engaging in private commerce, but as directly contesting this fundamental public provision. This article provides a legal-political history of that early contest over Canadian money and sovereignty, and explores the way in which Upper Canada’s Reformers put forth a critique of bank-issued money that remains relevant today.

This article explains how the Supreme Court’s decision in R. v. Chouhan concerning jury impartiality is an illustrative example of “baselines”, or how implicit political positions held by judges govern their legal analysis. It begins with a summary of the background in Chouhan: the issue before the Court (the abolition of peremptory challenges) and how the judgment resolved that issue by constitutionally vindicating the impartiality of systemically white juries (an unfortunate continuation of the Court’s widely critiqued judgment in Kokopenace). Then, the article analyzes Chouhan through the lens of baselines. First, the article uses Chouhan to describe what baselines are—that is, by examining both the judgment and hearing, the article reveals how implicit political positions significantly drove the legal analysis in the case. And, given the political character of that baseline reasoning, the article briefly critiques the Court in two ways: (1) it critiques Justices Moldaver and Brown for relying on weak baseline positions, like juries already being diverse (they are not) or Canada not having intractable racial inequality (it does); and (2) it critiques the Court’s recent notice limiting intervention submissions to “legal” issues insofar as that limitation can, perversely, prevent interveners from challenging those weak baselines from which the Court may conduct its analysis. Second, the article uses Chouhan to describe what baselines do—that is, by examining Justices Moldaver and Brown’s opinion in Chouhan, the article demonstrates how judges’ baseline commitments can motivate their reasoning and lead them to make analytical errors. In their opinion, Justices Moldaver and Brown purport to defer to Parliament while nakedly legislating from the bench—indeed, they rule that their policy preference of ignoring race in jury selection should, “as a matter of law”, take precedence over Parliament’s preference for race-conscious processes. Further, Justices Moldaver and Brown strawman both jury diversity and peremptory challenges to bolster their position. Specifically, when jurists argue for more jury diversity, Justices Moldaver and Brown simply respond that no jury can be perfectly diverse, a fallacious response because doing something for jury diversity need not require doing everything. The article concludes by noting how the continuing relevance of baselines in constitutional interpretation demands ongoing and critical reflection on how Canadian jurisprudence is routinely produced from a baseline of “silly anecdotes”: white subjectivity masquerading as universal objectivity, which institutionalizes white supremacy in law.

Equality rights for LGBTQ+ peoples have a politically vexed relationship with substantive equality around the world. Critiques of the structural limitations and harmful, unintended consequences of rights claims have abounded in critical legal theory for decades. This chapter intervenes in these debates by mapping the structure and rhetoric of equality rights for LGBTQ+ peoples. Applying a legal analytical framework that originates in Eve Kosofsky Sedgwick’s writing, the chapter focuses on the text of the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, released in 2007 and supplemented in 2017. The rhetoric of the Yogyakarta Principles is trapped in what Sedgwick calls a “radical and irreducible incoherence” between conflicting conceptions of gender and sexuality that has constrained the mission of substantive equality worldwide, yet which may be fundamental to the praxis of rights claiming in the international human rights system. Equality rights talk is “queer” in this sense – irresolvable in theory, powerfully productive for LGBTQ+ peoples in certain legal contexts, and profoundly harmful to LGBTQ+ peoples and other equality-seeking groups in other legal contexts. Considering this fact, the chapter concludes by arguing that LGBTQ+ activists should think about how we might negotiate the conflicts of equality rights rhetoric more strategically and responsibly by operating, paradoxically, both within and without the constraints of international human rights system to promote gender and sexual diversity on the global stage.