Your search

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.

This article provides guidance concerning alternative dispute resolution (ADR) options for ownership disputes of inventions conceived within universities. Focusing on an interest-based approach to mediation, this article begins by summarizing the key principles of interest-based mediation. The objective of the interest-based approach to dispute resolution is to explore options for a negotiated resolution that satisfies the interests of all parties. For a negotiated resolution to be the best option for all parties to the dispute, it must present a resolution more favourable than each party’s best alternative to a negotiated resolution (“BATNA”). A BATNA revolves around the outcomes a legal resolution (i.e., litigation) might provide compared to possible negotiated resolutions. Accordingly, a substantial portion of this article focuses on summarizing some of the legal issues at play in most invention ownership disputes. The article then turns to the university context. One of the central objectives of this article is to highlight how the contemporary university is a unique segment of today’s society, in that it is an eclectic mix of economic, social and legal values. The contemporary university rests on neither end of the economic spectrum. It is neither a marketplace driven solely by free market relationships, nor is it a social institution motivated by public interest only. Approaching university policymaking, and specifically, invention ownership policy, entirely from either end of this spectrum is bound to result in disputes. Accordingly, the paper argues that those interested in seeking creative avenues for mitigating against and resolving ownership disputes of inventions must remain sensitive to this reality. Keywords: patent, mediation

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 commercial practices that may or may not violate 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 closely as possible to their maximum willingness to pay (APP), may contravene anti-discrimination law. It analyses cases whereby APP could constitute prima facie discrimination, while acknowledging the difficulty to detect this commercial practice. We discuss 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, we argue that 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 and given its quasi-constitutional status. An additional contribution of this article is to bridge traditional anti-discrimination law with emerging AI governance regulation, resorting to the gaps identified in anti-discrimination law to show how AI governance regulation could enhance anti-discrimination law and improve compliance.

The Canadian government has a long history of regulation, exploitation, and violence against lesbian, gay, bisexual, trans, queer, and two-spirit (LGBTQ2) people. One of the most painful chapters in this history is the “LGBT Purge,” a term that refers to the expulsion of LGBTQ2 service members and employees from the Canadian Armed Forces, Royal Canadian Mounted Police, and federal public service between 1955 and 1992. The LGBT Purge was the subject of a class action lawsuit filed in 2017 that resulted in a settlement agreement in 2018. On a parallel track to the settlement, Prime Minister Justin Trudeau issued a formal apology for the government’s history of state-sponsored discrimination against LGBTQ2 people in 2017. In this article, I consider these events from a legal historical and queer theoretical perspective. I focus on the potential of the settlement to promote reconciliation with LGBTQ2 people, contextualizing the settlement in light of neoliberal and homonationalist pressures on the class members to settle the past and forgive legacies of homophobic violence that continue to be felt today. Praiseworthy as the settlement terms might be, I conclude by arguing that forgiving the government’s history of discrimination against LGBTQ2 people is an historical impossibility.

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. The authors’ analysis uses 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.

The most controversial of the recent amendments to Ontario’s Class Proceedings Act is the addition of two requirements to the certification test: to meet the preferable procedure criterion, s. 5(1.1) requires that common issues in the litigation must now “predominate” over individual issues, and a class action must be “superior” to all other forms of resolution. The importance of the interpretation of Ontario’s new certification test to the continued viability of class actions in the province merits a thorough and rigorous analysis of s. 5(1.1). The language of predominance and superiority is strikingly similar to requirements that have long applied to US class actions for monetary damages. As courts in Ontario begin to grapple with the new predominance and superiority requirements, however, the authors caution against turning to American jurisprudence for guidance. Several important structural differences between the Ontario and American class action regimes, as well as different constitutional considerations and a variety of approaches within US case law diminish its utility. Instead, the authors examine the history and language of the amendments to propose an interpretation of the predominance and superiority requirements that is informed by Canada’s own procedural and constitutional framework and that avoids the pitfalls of legal transplants.

Tribunals have great potential to improve access to justice in Canada, and the goal of this article is to better understand this potential. It begins by defining "tribunals" and "access to justice," the key concepts of this article. Because tribunals and trial courts are functional alternatives for the resolution of many legal disputes, the article first reviews the merits of triallevel courts in this regard. It then turns to tribunals, reviewing some objective evidence of tribunal excellence in creating access to justice. Four key attributes of tribunals make them advantageous alternatives to trial-level courts for the accessible and just resolution of many types of legal dispute. First, tribunals are specialized instead of having general jurisdiction. Second, tribunals apply teamwork to dispute-resolution, instead of assigning all responsibility to individual adjudicators. Third, healthy forms of accountability are easier to establish in tribunals than they are in courts. This includes accountability of individual members to the tribunal and accountability of the tribunal to the legislature that created it. Finally, tribunals can be designed for maximal performance in creating access to justice, by contrast to courts which, for good reasons, resist design or reform efforts coming from outside themselves. The final Part of the article argues that tribunals can advance access to justice not only by taking on dispute-resolution work that courts would otherwise do, but also by offering authoritative legal vindication of rights that would otherwise be abandoned, or resolved in a completely privatized way. The tribunal promise of accessible adjudication can also be expected to improve the quality of settlements, in terms of upholding parties' substantive legal rights.

Tribunals constitute a vitally important part of Canada’s justice system, but their place in the Canadian state is fragile and their essential function is misunderstood. This article explains the need for pro-functional tribunal law, which would position tribunals to consistently deliver on their potential. Differentiating tribunals dedicated to resolving legal disputes from non-tribunal agencies that do other work is the key. Differentiation would advance goals related to specialization, the separation of powers, and democracy in Canada. It would allow tribunals to escape the taint of partiality to government. It would also set the stage for a professionalization and depoliticization of tribunal appointment practices, securing tribunals and their users from the type of dysfunction that has recently plagued Ontario’s tribunals. The final Part of the paper argues that the Canada’s legislatures, rather than its appellate courts, are the most promising venue for the adoption of pro-functional tribunal law.

The innovation that is associated with developing a digital currency has provided for a unique opportunity to reconsider how consumers can access payment mechanisms and conduct retail banking following the emergence of new fintech technologies. As such, this is a prescient time for policy makers to reconsider financial reform efforts to leverage new technological developments as a means of making the payments system more efficient. This paper considers some of the challenges facing Central Banks as they attempt to navigate these pressing challenges. In particular, the paper will assess the relative prospects for success for some of the more popular CBDC proposals and identify potential avenues for Central Banks to improve the efficiency of their retail payment systems. Part One will examine some of the more prominent proposals that utilize a combination of increasing access to financial services through a digitization of conventional bank notes to be supplied either directly as accounts operated by Central Banks, or through conventional intermediaries that utilize the payment rails to be established by a Central Bank to provide access to their customers to digital banknote equivalents. Part Two will consider how these present efforts can be enhanced by re-examining the roles that Central Banks play in enhancing economic efficiency. Attention will be paid to recent advances pioneered in fintech in order to reimagine the role played by Central Banks in facilitating the circulation of money and credit throughout the economy. Part Three will address some of the criticisms of the existing CBDC proposals and will offer thoughts on how to mitigate some of the risks involved including the incorporation of a national identity and credit reporting feature into CBDC models as a method of reducing transactions costs.

Price is often the single most important term in consumer transactions. As the personalization of e-commerce continues to intensify, the law and policy implications of algorithmic personalized pricing i.e., to set prices based on consumers’ personal data with the objective of getting as closely as possible to their maximum willingness to pay (APP), should be top of mind for regulators. This article looks at the legality of APP from a personal data protection law perspective, by first presenting the general legal framework applicable to this commercial practice under competition and consumer law. There is value in analysing the legality of APP through how these bodies of law interact with one and the other. This article questions the legality of APP under personal data protection law, by its inability to effectively meet the substantive requirements of valid consent and reasonable purpose. Findings of illegality of APP under personal data protection law may in turn further inform the lawfulness of APP under competition and consumer law.

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-centered 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.