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Civil procedure should be "just, speedy, and inexpensive," according to the purposive rules found at the outset of many procedural codes. However, this formula creates as many questions as it answers. What does it mean for procedure to be "just?" What sorts of costs are relevant when considering how "inexpensive" procedure is? How should rule-makers and adjudicators compromise between justice, speediness, and inexpensiveness when these goals are in tension and resources are scarce? This article offers a normative account of civil procedure's purpose. The goal is to identify the warrant for"just, speedy, and inexpensive," and then to explain and refine it. I argue that welfarism, a general normative theory of public policy, is implicit in modern civil procedure. Welfarism is the idea that public policy decisions should always seek to optimize welfare for all affected individuals. I defend welfarism as a theoretical basis for reforming civil procedure and resolving its hard cases, and propose three refinements to civil procedure's purposive rules to give better effect to it.
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Following in the wake of the "Hockey Canada trial" in 2025, this article begins from the recognition that sexual harm is a complex social problem of gender inequality in Canada that requires a transformative approach to remediate effectively. Restorative justice is one such transformative approach. In Ontario, however, where the Hockey Canada trial took place, Crown prosecution policy states that individuals charged with sexual offences are categorically ineligible to be diverted to restorative programs at pre-trial stage. In other provinces, there are similar policies and other moratoriums in place that limit the use of restorative justice to varying degrees. Building on insights from the criminal law, feminist legal theory, and penal abolition fields, this article argues that these policies should be revised and moratoriums should be lifted to enable restorative justice to be more widely available in sexual harm cases.
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The separateness of the Copyright Act from the common law has been somewhat taken for granted by the legislator and the judiciary. This book chapter applies the statutory interpretation principles that mediate the relationship between legislation and the common law as a principled approach to better situate the Copyright Act in relation to the common law and by the same token, copyright law in relation to private law. This chapter challenges the assertion that the Copyright Act is an exhaustive code, and points to the over-reliance on copyright’s distinctiveness from the common law, both at the legislative stage, and by the judiciary. It does so with specific examples from the Copyright Act, including statutory remedies, technological protection measures (TPMs), and the right to repair. Statutory interpretation principles guide both the legislator and courts on how the balance of powers should be exercised between the legislative arm and the judiciary. This balance of powers needs to be exercised carefully in the realm of copyright law. Its scope looms large in the regulation of the information society and digital marketplace, and its construction away from general principles of private law has led to unfortunate consequences. The chapter concludes by reaffirming the nature of copyright law as private law. The authoritative power conferred on judges in constructing the Copyright Act should set aside any tendency to treat copyright law, or other statutory law governing relationships between private parties, differently than spheres of private law derived primarily from judge-made law.
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Author / Editor
- Daniel Del Gobbo (1)
- Noel Semple (1)
- Pascale Chapdelaine (1)