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In his thoughtful paper on the relative advantages and deficiencies of private and public enforcement mechanisms for improving consumer protection, Craig Jones forces us to ask a fundamental question about our choice of legal tools: under what circumstances, if ever, should reliance be placed on public regulatory bodies, and when should the protection of the public be left to private litigation, principally through class actions?

It has often been asserted that, upon proof of patent validity, copyright ownership or trademark infringement, a permanent injunction will be granted as a matter of course. The decision of the U.S. Supreme Court in eBay v. Merc-Exchange, concerning the activities of a patent troll, has put into question the correctness of that assertion. The U.S. Supreme Court has restored the discretionary nature of the inquiry to grant a permanent injunction in intellectual property disputes, and requires the plaintiff to demonstrate that monetary remedies are inadequate. While there is no similar and definitive statement from Canadian courts, I argue that Canadian law largely mirrors the approach now adopted in the U.S. This approach is to be preferred as the best way to match appropriate remedy to the complex policy choices engaged in regulating intellectual property. It is also an approach to remedies endorsed in other areas of law by the Supreme Court of Canada.

The Idea of the book is to discuss the evolution of civil procedure in different societies, not only in the well-known civil or common law systems, but also in different countries of Eurasia, Asia, etc. Civil procedure in Europe and North America is a subject of enormous scientific and practical importance. We know a lot about these systems. But we do not know enough about civil procedure in the rest of the world. How does it work and what are the main principles? Culture is one of the main factors that makes civil procedure of these countries different. Therefore it is necessary to discuss the main links between different systems of civil procedure. The discussion was held on the basis of National reports from 24 countries.

Immigrants face significant challenges that impair their ability to access resources that can develop their entrepreneurial potential. Using an action research and case-based approach, we highlight the challenges experienced by immigrant entrepreneurs and in turn discuss practical measures to resolve these challenges through mentoring programmes for nascent entrepreneurs. We profile a unique multi-disciplinary programme involving both business and law students who coordinate and deliver workshops for course credit. Established entrepreneurs and professionals also volunteer their time as mentors. We develop a balanced scorecard to assess and improve the programme. Study results provide a model to enable universities and others to reach out to nascent immigrant entrepreneurs.

Access to Information in an Age of Intelligencized Governmentality was published in Brokering Access on page 115.

The mounting wave of unrepresented litigants, and the many unmet legal needs which Canadians experience, demand innovative responses that go beyond the traditional call for more state-funded legal aid. The argument of this paper is that excessive regulation of legal services is partially responsible for Canada’s access to justice crisis. Regulation of legal services serves important public interest goals. However, the argument of this paper is that it also reduces competition and innovation, and increases price. It therefore impedes access to justice and drives up the number of unrepresented litigants. Some market entry and market conduct regulations appear to be stricter than they need to be to accomplish their legitimate goals, and others may not even have any legitimate goals. Policy-makers seeking to increase access to justice without spending public money should consider reforming these elements of the regulatory regime.

While the law of the sea is rightly viewed as the most suitable international legal regime for the settlement of disputes in the Arctic, the militarisation of this region in an era of climate change is also observable. Yet curiously, scant attention has been paid to the constraints International Humanitarian Law (IHL) would impose on armed conflict in the Arctic, as unlikely as such conflict may be. These include the specific prohibition on causing widespread, long-term and severe environmental damage under Additional Protocol I to the Geneva Conventions; as well as the related obligation to have “due regard” for the natural environment, as referred to in, for example, the San Remo Manual on Naval Warfare. Similarly, environmental factors must play into military assessments of targets based on the general principles of IHL related to targeting. The authors explore how these various legal obligations could be applied in the Arctic context. Referring to the scientific literature, they suggest that, due to the particularly vulnerable nature of this regional environment, many traditional war-fighting techniques would lead to damage that is not legally permissible. This conclusion should provide an additional incentive to policy makers to demilitarize the Arctic and to solve peacefully any disputes which may arise over sovereignty, navigation or resources.

Custody and access disputes occur when parents separate without agreeing about how to divide the on-going rights and responsibilities of parenthood. This article reports on empirical research with child custody evaluators who deal with these cases on a regular basis. On paper, the role of these professionals is to gather information and then make decisions about what parenting arrangements would be in the best interests of the children. However, the central finding of this research is that, in practice, their primary goal is to bring about voluntary settlement of the disputes. This article proposes an explanation for this phenomenon which is based on the evolution of custody and access law, procedure, and ideology over the past 30 years. The rise of the "logic of durability" is proposed as an explanation for the concerted pursuit of settlement among both child custody evaluators and family court judges.

The jurisprudential borders of the Canadian state appeared to shift in the aftermath of the landmark judgment of the Supreme Court of Canada on the constitutionality of the security certificate provisions of the Immigration and Refugee Protection Act in early 2007. Yet Charkaoui v. Canada ultimately maintained the contingency of the Charter of Rights and Freedoms, re-drawing long-standing divisions along lines of alleged risk, allegiance and origin, despite the emergence of tentative shifts in jurisprudential conceptions of state sovereignty and extra-territoriality. Where previous national security cases involving constitutional rights claims by non-citizens were predicated on a conceptualization of state sovereignty as the right to exclude from territory, reading Charkaoui in the context of four subsequent cases involving the role of Canadian state actors abroad gives rise to the prospect of the Charter operating to delineate and maintain the limits of state sovereignty within and beyond national borders. While the Charter may accompany the extended reach of the Canadian state in some of its guises, it provides only a minimal constraint on the actions of its agents, reinscribing rather than challenging sovereignty. Accordingly, this article argues that the ‘sovereign Charter’ represents a key moment in the evolution of the Canadian state’s national security, immigration and foreign policy strategies, serving to harden the boundaries of the nation, from within and without. By theorizing the doctrinal rules related to the extra-territorial application of the Charter, this article concludes that rights, as reflected in Charkaoui and subsequent caselaw, continue to offer only a limited mode of resistance against sovereign power. Beyond both immigration law’s historical preoccupation with race and the contemporary focus on the ‘war on terror,’ the very notion of rights functions as a discursive and aspirational marker of sovereignty.

Third party litigation funding (TPLF) has emerged as one of the most important developments in civil litigation. Courts and policymakers in several countries are looking to each other as they debate the costs and benefits of this growing industry, and the need for regulatory oversight. Such cross-pollination in the public and jurisprudential debates on TPLF can be enormously helpful, but must be approached with caution. The TPLF industry operates in very different procedural environments, and any comparative analysis must take into account the various jurisdictions’ unique litigation culture and architecture. In this paper, the authors explore TPLF in the U.S., Australia and Canada, with a focus on class action litigation in the latter two jurisdictions. They examine the historical development of TPLF, current practices, the legal and procedural context within which such funding takes place, and how each jurisdiction is addressing regulation of this form of finance. In the final part of the paper, they engage in a comparative analysis of TPLF in the three countries, and highlight important differences that may ultimately result in unique approaches to regulatory oversight of the industry.

We synthesize knowledge about the policy and practices and infrastructure available for technology transfer of student inventions. Our joint consideration of intellectual property protection and business and legal support services has tried to overcome some of the traditional functional and knowledge silos.

I have been asked to provide an update on equitable remedies for breach of contract. Obviously, the dominant equitable remedy concerning breach of contract is specific performance; and in what follows I have focused upon that remedy. In addition, I have provided commentary on two related topics; one, the enforcement of keep open clauses; and two, the treatment of remedy stipulation clauses. I have not covered the enforcement of contracts by injunction. This presentation has come at an opportune time; as I am currently writing the second edition of my text on Equitable Remedies (Irwin Law) some of this material is drawn from those labours.

This paper addresses the history of the legality of the aerial bombardment of civilians, from the earliest attempts at legalization, through the inter-war period and into the actual bombing campaigns of the Second World War. We then chart the paucity of discussion of the legality of said bombing both during the war and throughout the Cold War, and finish with the occasional interruptions to the legal silence since 1992 in Canada and elsewhere.

According to the Canadian courts s. 2(a) of the Charter requires that the state remain neutral in religious matters. The state must not support the religious practices of one religious group over those of another and it must not restrict the practices of a religious group, unless this is necessary to protect a compelling public interest. Yet the neutrality requirement has not been consistently enforced by the courts. The fundamental difficulty with the neutrality requirement is that religious beliefs often have public implications. Despite the courts’ formal commitment to “neutrality” they have required the state to remain neutral only towards the “private” or spiritual dimensions of religious practice. The “public” elements of belief, which address civic concerns, remain subject to the give and take of ordinary politics. This distinction, although not expressly made by the courts, underlies the different treatment the courts have given to religious “practices”, which the state is precluded from favouring, and religious “values”, which the courts have said may play a role in political decision-making. This distinction between public and private religion, may also play a role in the courts’ accommodation decisions and account for its weak or selective protection of religious practices from state interference. Where the line is drawn between civic and spiritual spheres will reflect the courts’ assumptions about ordinary religious practice and appropriate state action. Because the line is not drawn explicitly but is instead framed as a distinction between practice and value in state support cases and is buried within the formal s. 1 balancing of interests in religious accommodation cases, the courts’ assumptions about the nature of religious practice and state action are concealed from scrutiny.

Professor Ladeur argues that administrative law's postmodernism (and by extension Global Administrative Law) necessitates that we move beyond relying on ideas of delegation, accountability and legitimacy. Global Governance, particularly Global Administrative Law and Global Constitutionalism, should try to adapt and experiment with the changing nature of the postmodern 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 susceptible 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.

In Tranchemontagne v. Ontario (Director, Disability Support Program), the Ontario Court of Appeal entered onto the most recent battleground in the world of statutory human rights law: a challenge to the content of a statutorily-created government program under the auspices of the Human Rights Code instead of under section 15(1) of the Canadian Charter of Rights and Freedoms. In recent years government services claims under the Codes have gained increasing visibility. In such cases a challenge is brought under the Human Rights Codes to the substantive content of a statute that creates a government program, or discretionary decision-making under the statute’s terms.

In Pro Swing v Elta Golf Inc the Supreme Court of Canada made passing reference to the functions of equity’s maxims. Other courts have made similar references; indeed, judicial mention of equity’s maxims occurs quite frequently. This is surprising given the dearth of academic commentary on equity’s maxims, and that little mention of the maxims now takes place in Canadian law school curricula. In contrast, open any of the equity texts of the 1800s and significant attention is accorded to equitable maxims. This article seeks to explore whether the concept of equity’s maxims, as against the content of the individual maxims themselves, serves any real purpose today. It starts by providing an historical evolution of the notion of equity’s maxims, noting in particular that they are now largely ignored in the United States of America but still have topicality, to widely varying degrees, in Commonwealth jurisdictions. It then explores three divergent functions that have historically been served by equity’s maxims. Next, it turns to three roles that may be fulfilled by equity’s maxims today. It concludes that equity’s maxims serve a minimal function today. They do, however, preserve the distinctness of equity’s methodology from the common law and do allow some explicit dialogue on morality and ethics in those areas of private law where equity still plays a significant, determinative role.