This Article examines and critiques the global binary debate surrounding opt-in versus opt-out legal regimes for regulating unmarried cohabitants' financial obligations upon separation. Using Canadian jurisdictions as a case study, it challenges the prevailing academic consensus that endorses opt-out systems as superior policy, based on assumptions that they are fairer, sufficiently preserve autonomy, enhance certainty, and particularly benefit women. Drawing on empirical research, the Article explores how couples engaged with British Columbia's opt-out scheme. In-depth interviews suggest that default rules operate as quasi-mandatory, with opting out proving remarkably difficult. Moreover, the law often falls short of achieving the anticipated certainty and struggles to accommodate the diverse interests of women. The analysis cautions against transformative reforms to cohabitation law based on unexamined or overly broad assumptions and highlights shortcomings in the dominant binary policy debate between opt-in and opt-out models. Given these limitations, the Article evaluates various conceptual approaches for reform. While acknowledging the promise of bolder anti-exceptionalist visions departing from existing paradigms, it concludes that, at present, modest refinements to opt-out models are more feasible and offer viable pathways to engender incremental improvements.
The traditional English jurisprudence granting restitution of benefits conferred under agreements rendered unenforceable because of illegality was unsatisfactory. As a general principle, it held that there was a presumption against restitutionary relief for benefits conferred under such agreements (the Holman principle). This principle was subject to a series of exceptions granting relief to parties who were innocent of fault with respect to the illegal conduct or, at least, less at fault than the defendant. The main difficulty with this approach was that it denied relief in cases where, though the plaintiff was implicated to some extent in the illegality as a perpetrator or, at least, a participant in the illegal conduct, restitution appeared appropriate. The traditional Holman exceptions were stretched to accommodate such cases and collateral forms of relief developed. The resulting doctrine was both complex and unpredictable in its application. A modern approach emerged in American and, more recently, in Canadian and Australian law, of simply granting recovery to a guilty party who could establish that, in the particular circumstances, restitutionary relief was appropriate. A different approach to modernization of the doctrine has been recently adopted in English law. In its 2016 decision in Patel v Mirza, the Supreme Court of the United Kingdom appears to have adopted a reform scheme proposed by Professor Peter Birks. In essence, the Birksian scheme reverses the Holman principle and presumes that all plaintiffs are entitled to recover such benefits. The defendant, however, is entitled to raise a defence of illegality which will not invariably be available against perpetrators of the illegal conduct. This paper argues that the new English model is deeply flawed and ought not be adopted elsewhere. The modern American, Australian, and Canadian approach offers a more direct and sound solution to the problem.
Regulatory sandboxes are designed to give firms space to offer novel products and services to consumers on a trial basis, under an interim, tailor-made regulatory regime. Ideally, this leaves regulators better placed to understand how rules ought to be modified to accommodate new, socially beneficial offerings on a more permanent basis. But little is known about sandboxes’ implications for consumers. Will they reduce barriers to entry for innovative offerings that do a better job of serving consumer needs? Or will they lead regulators to compromise on consumer protections, allowing low-quality or even fraudulent offerings to flow into the markets they oversee? This article sheds light on one area where sandboxes have developed enough of a track record that we can start to explore these questions. Canadian securities regulators relied heavily on sandboxes to develop their approach to regulating the cryptoasset sector. Their experience highlights how, contrary to conventional wisdom, sandboxes and mainstream regulation do not always exist in isolation from one another, with clearly defined boundaries and distinct purposes. To the contrary, this article illustrates the boundaries between sandboxes and mainstream regulation can be deeply blurred. The article considers what implications this insight might have for the design of sandboxes in other fields of regulation.
This article examines the relevance and admissibility of prior negotiation evidence in contract interpretation. According to a long-established common law rule ("exclusionary rule"), the evidence of pre-contract negotiations is not admissible as an aid to contract interpretation. This study argues that the exclusionary rule is unjustified and should be abandoned. Judges should be allowed to use prior negotiation evidence to support inferences about the existence of the empirical facts constituting the relevant factual matrix, while the use of such evidence should not be allowed to support interpretive inferences about the meaning of the contract language. The distinction between empirical and interpretive inferences helps identify and explain the situations in which prior negotiation evidence assists the process of contractual interpretation.
When Canada overhauled its income tax to include capital gains in 1972, lawmakers suddenly had to decide how to deal with personal home sales. After heated debate, they opted to exclude the gains on an individual’s principal residence on the grounds that the core purpose of a home is to provide “basic shelter” for its owner-occupants. The principal residence tax exemption has since become one of Canada’s biggest tax shelters and now amounts to one of Canada’s largest tax subsidies to individuals. Along the way, it has created economic distortions, administrative challenges, and inequitable distributive outcomes. While lawmakers have occasionally considered how to curtail the misuse of the exemption, none have been brave enough to consider a path to unsheltering such gains, even in part. In this article, we examine why Canada continues to over-subsidize home ownership through the tax system, assess the merits of that choice using tax policy criteria, and examine the alternatives that might be available to achieve the ostensible objectives.
The Ontario Superior Court of Justice has recently held that a paediatrician might owe a duty of care to a patient’s parents when performing genetic testing on the patient and communicating test results to the parents. The parents may be able to claim damages against the paediatrician for breach of this duty if, in reliance on a miscommunication about the test results, they conceive a subsequent child who is later born with a disability. I call the tort alleged by the parents in these circumstances a subspecies of “paediatric triangular torts.” In this article, I demonstrate the conceptual feasibility of this tort. One challenge I confront is that imposition of a duty of care on the defendant may create a conflict between simultaneous duties owed to the patient and the plaintiff. Another is that it may expose the defendant to indeterminate liability. I argue, however, that these challenges can be overcome if we conceive of the tort as a form of negligent misrepresentation, where the paediatrician undertakes to carefully fulfill a duty already owed to the patient in the performance of genetic testing and the plaintiff is thereby induced to detrimentally rely on this undertaking by basing reproductive decisions concerning a subsequent child on the test results. In these circumstances, there is an alignment rather than a conflict of duties owed by the defendant, and the scope of the defendant’s liability is restricted to those to whom they undertook to properly perform genetic testing. The conceptual structure of this “alignment thesis” which I defend maintains that there should be a case-by-case exception to the general rule that a conflict of duties negates a novel duty of care where courts find that on the facts there is no conflict. But I explain how current authoritative jurisprudence on paediatric triangular torts is inhospitable to this structure because it denies that there can be any exceptions to the general rule and that the risk or potential for a conflict is alone sufficient to negate a duty of care. I therefore go on to raise doubts for this legal status quo. I argue that it is not evident that allowing courts to identify exceptions to the general rule will have negative consequences that are serious enough to negate a paediatrician’s duty of care to a patient’s parents for negligent genetic testing. In particular, this duty will not engender tort suits or damage awards that unjustly discriminate against persons with disabilities.
As everyone knows, trusts are often used to avoid or subvert different rules of law. To combat such avoidance, jurisdictions enacted anti-avoidance rules; yet many of these rules do not fully prevent trusts-based avoidance, or in some cases reflect some jurisdictions' acceptance of such avoidance. We review the anti-avoidance rules applied by Canada, the US, the UK, Australia and New Zealand to try and stymie trusts-based avoidance in three subject areas: distribution of family property on divorce or separation, taxation of income accrued in settlor-controlled trusts, and means-tested eligibility for welfare benefits. We find that anti-avoidance doctrines are often less than fully effective in tackling liability or means testing avoidance by way of discretionary trusts, and offer recommendations to improve the treatment of such trusts for anti-avoidance purposes.
Few periods of Canadian history have been as momentous or terrible as the Great Depression. The Dominion and provincial governments' inability to combat financial and environmental catastrophe led many Canadians to openly question the appropriateness of their constitutional framework. As legal historians have since documented, many leading jurists of the time believed that a strong central government could, through the institution of national programs, contain the Great Depression; in the eyes of these 1930s jurists, the Judicial Committee of the Privy Council-then Canada's apex court-had sapped the federal government of its powers by misinterpreting the British North America Act, 1867. Although scholars have correctly identified the Great Depression as a period of intellectual ferment and even revolution, none has fully accounted for the prevalence of originalist thought in the legal debates of the time. In response to the Great Depression, the major legal thinkers and reformers of the 1930s deployed originalist arguments. They criticized the Privy Council for having departed from the original intentions of the Fathers of Confederation and the original meaning of the Constitution. While the leading jurists of the period all tended to employ originalist reasoning, they often disagreed on interpretive outcomes. Thus, while many jurists used originalist reasoning to argue in favour of a strong central government, some argued that the original intentions of the Framers and the original public meaning of constitutional provisions favoured a federalist interpretation of the British North America Act. I conclude that the dominance of originalism during the legal debates of the 1930s bears several lessons for modern constitutional theorists. The fact, for example, that jurists of all ideological backgrounds employed originalist logic demonstrates that the characterization of originalism as inherently conservative makes little sense in the Canadian context.
In the autumn of 2023, the Chief Justice and Attorney General of Ontario announced a broad new effort to review the rules of civil procedure to make civil dispute resolution more efficient and less expensive to enhance access to justice in the province. However, such efforts to reform the rules of civil procedure are nothing new. This article examines the historical and contemporary aspects of civil justice reform in Ontario, focusing on the pre-trial discovery process. Among the most expensive aspects of the civil litigation process, discovery began as an equitable tool, with roots in the English Court of Chancery. It was also one of equity’s most important procedural tools, and driving force behind the fusion of the courts of law and equity under the Judicature Acts 1873-1875 (UK). This article traces the equitable origins of discovery to its current form in modern civil procedure, with an emphasis on practice and reform in Ontario. It highlights the cyclical nature of civil justice reform, drawing parallels between recent initiatives in Ontario and the reforms that led to the Judicature Acts of 1873-1875. Many blame equity for the extraordinary expenses now associated with the discovery process. However, the paper argues the current discovery process misconceives key elements of the process by creating a default rule, deviating in significant ways from its equitable origins, which were highly discretionary. These changes have contributed to the current inefficiencies and high costs that overwhelm litigants. The author contends that the broad "semblance of relevance" standard established in the 1882 case of Peruvian Guano contributed to the overproduction of documents and prolonged pre-trial procedures not because of equity’s breadth and discretion but because the process has become so formulaic and rigid, a hallmark of common law procedure. The paper suggests that recent reforms, which emphasize proportionality and judicial oversight, reflect a return to equitable principles and offer potential solutions to the current challenges in the discovery process. Through a detailed historical analysis, the article demonstrates that equity's historically flexible and discretionary approach to discovery can provide valuable insights for contemporary civil justice reform. The author advocates for a greater appreciation of equity’s emphasis on judicial discretion to shape the procedure and practice governing discovery, and suggests this historical context may help ground efforts to reform discovery to better suit the needs of proportionality in civil justice reform.
Racial profiling is one of the most enduring problems in policing. Yet it remains largely under-theorized, which generates important theoretical and practical implications. Racial profiling tends to be construed as an arbitrary detention rather than a form of unconstitutional discrimination. For this reason, the section 15 Charter right to equality plays little to no role in most leading cases on racial profiling. The legal framework that governs racial profiling lacks clarity and can be applied inconsistently. And the remedial landscape associated with racial profiling claims has evolved minimally. This article advances a novel approach to racial profiling that addresses these shortfalls. It demonstrates why racial profiling is wrongful primarily because it embodies discrimination that violates the section 15 Charter right to equality, and secondarily, infringes liberty or privacy interests, and in so doing, breaches other constitutional rights. It offers a simplified legal framework for how courts can better approach racial profiling in constitutional criminal procedure. Drawing on the republican theory of freedom (or republicanism), it shows why racial profiling results in domination—meaning vulnerability to unchecked threats of interference— that courts fail to control. In doing so, it deepens our theoretical understanding of racial profiling and its connection to equality and liberty. The concluding parts of this article contend that courts can incorporate two innovative remedies that can better prevent and address racial profiling: structural injunctions and constitutional settlement agreements. Ultimately, this article offers a new path forward for how racial profiling can be approached in a manner that better safeguards individuals’ fundamental rights and interests.
This article examines the kinds of arguments that can be made in debates regarding whether or not an expert is properly qualified to critique the work or opinions of another expert. Since these debates routinely occur in both legal and political arenas, a more fine-tuned sense of their argumentative dynamics can be fruitful for reasoning through them. This article is built around the analysis of a decision which concerned the admissibility of a physician's testimony on the medical standard of care in a malpractice case. A detailed parsing of the arguments in that decision lays the groundwork for a theoretical discussion in which broader themes relating to experts' qualifications are drawn out. The discussion focuses on two elements present in the decision, which can serve to buttress an expert's claim to being properly qualified: community belonging and personal character.
The Canadian government has a long history of regulation, exploitation, and violence against lesbian, gay, bisexual, trans, queer, and two-spirit (LGBTQ2S+) people. One of the most painful chapters in this history is the "LGBT Purge," a term that refers to the expulsion of LGBTQ2S+ 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 LGBTQ2S+ 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 LGBTQ2S+ 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 LGBTQ2S+ people is an historical impossibility.
CANADIAN LAW JOURNALS have never been known for going out of their way to facilitate direct conversations between legal scholars working on cognate issues. However, if there is anything to the old liberal adage that the truth is more likely to emerge from the civil yet robust debating of competing ideas, the lack of opportunities for holders of rival views to respond, in real time, to each other's arguments is deplorable. Therefore, I wish to commend the Osgoode Hall Law Journal for convening this timely scholarly exchange on the problematic phenomenon of racial profiling in Canadian policing and, more specifically, the under-explored question of how courts should respond to it in view of Canada's distinct legal framework. I also wish to thank Terry Skolnik, Fernando Belton, and Jeanne Mayrand-Thibert (hereinafter SBMT) for agreeing to engage in this dialogue.
Racial profiling is one of the most enduring problems in policing. Yet it remains largely under-theorized, which generates important theoretical and practical implications. Racial profiling tends to be construed as an arbitrary detention rather than a form of unconstitutional discrimination. For this reason, the section 15 Charter right to equality plays little to no role in most leading cases on racial profiling. The legal framework that governs racial profiling lacks clarity and can be applied inconsistently. And the remedial landscape associated with racial profiling claims has evolved minimally. This article advances a novel approach to racial profiling that addresses these shortfalls. It demonstrates why racial profiling is wrongful primarily because it embodies discrimination that violates the section 15 Charter right to equality, and secondarily, infringes liberty or privacy interests, and in so doing, breaches other constitutional rights. It offers a simplified legal framework for how courts can better approach racial profiling in constitutional criminal procedure. Drawing on the republican theory of freedom (or republicanism), it shows why racial profiling results in domination-meaning vulnerability to unchecked threats of interference- that courts fail to control. In doing so, it deepens our theoretical understanding of racial profiling and its connection to equality and liberty. The concluding parts of this article contend that courts can incorporate two innovative remedies that can better prevent and address racial profiling: structural injunctions and constitutional settlement agreements. Ultimately, this article offers a new path forward for how racial profiling can be approached in a manner that better safeguards individuals' fundamental rights and interests.
Since the turn of the millennium, Canadian appellate courts have been investing increasingly systematic efforts in demystifying and curtailing racial profiling in policing. These judicial efforts have so far been focused on the application of the legal criteria for arrest and detention as well as their regulation under section 9 of the Canadian Charter of Rights and Freedoms. In this article, I contend that this unidimensional approach is unsound and outline a corrective path forward. First, I argue that the prevailing judicial understanding of what racial profiling is and how it affects the lawfulness of arrests and detentions has the paradoxical effect of undercutting the rule of law, the advancement of which is the very purpose of section 9. It chiefly does so by requiring an overbroad range of arrests and detentions to be declared unlawful. Second, I contend that the current approach also fails to address racial profiling for the core wrong that it constitutes-namely, wrongful discrimination on the ground of race, which section 15 of the Charter expressly prohibits. I make the case that addressing the phenomenon under this complementary paradigm would make it possible for courts to censure and remedy arrests and detentions tainted by it even when, for rule-of-law-related reasons, they should not be declared unlawful. Thus, it would offer courts the ability to thread a more careful and complementary remedial needle. Finally, I raise the possibility of a third paradigm-that of judicial stays of proceedings for abuses of process-to help address cases that the other two paradigms are ill-suited to redress.
THIS VOLUME OF THE OSGOODE HALL LAW JOURNAL (OHLJ) contains two articles-and two replies-that explore racial profiling and the law. This academic exchange comes at a crucial moment. In Attorney General of Qu & eacute;bec v Luamba ("Luamba"), the Court of Appeal of Quebec affirmed that the statutory police power to conduct roving traffic stops is unconstitutional because it results in arbitrary detentions and unconstitutional discrimination, neither of which were justifiable in a free and democratic society.
This article is about the misunderstood history of a Canadian law for determining Indian status, the decades-long struggle to remedy sex discrimination in the law, and the significance of judges writing history. Since before Canada's confederation until amendments to the Indian Act in 1985, Indian women, unlike Indian men, lost their Indian status if they married non-Indians. Even with the 1985 amendments, the law still disadvantaged people who traced their Indian status along the female line. Facing a challenge to the law based on sex discrimination, the government argued that the enduring disadvantage to women was the only way to reconcile the equality rights of Indigenous women and the self-governance rights of Indigenous communities. The government's account of the legislation's history has been widely accepted by scholars and confirmed in case law. Through scrutiny of newly declassified government records, this article refutes the government's claim that the 1985 Indian Act amendments were the product of a necessary compromise between competing Indigenous rights claims. Rather, the government used controversies it had provoked about Indigenous self-governance to obscure a legislative objective shared by both Liberal and Conservative governments: to minimize the number of status Indians and thereby shrink the population entitled to federal benefits, weaken Indigenous land claims, and ultimately undermine Indigenous self-governance.
This article explains how developers and users of large language models (LMs) may be treated by English and Canadian libel law. LMs could be economically significant, and the liability environment they exist in will affect where they are developed, who accumulates wealth from their development, and who bears the burdens of any negative consequences of their development. Understanding the existing liability environment allows both developers and policy makers to make informed decisions-about which jurisdiction to offer services and what to prioritise, for the former, and about whether the existing law serves desired policy ends, for the latter. LMs also raise challenging legal issues because they undermine common-sense assumptions that are baked into existing legal doctrines. Although the discussion may have broader implications for tort law generally, this article focuses on the doctrine and theory of libel. Legal problems lie lurking in those doctrinal weeds and are helpfully revealed by the contrast between Canadian and English law. Minor jurisprudential differences in decisions from yesteryear may have significant consequences if they are followed when text is generated by LMs rather than by people.
In "Against Settlement," Owen Fiss argued that settlement may not always be the optimal result of civil suits, particularly those that involve novel or ambiguous areas of law or ostensible power imbalances. That work spurred a range of scholarship around the merits and demerits of settlement. And although the settlement versus litigation debate is now almost four decades old, its currency persists in common law systems in which courts are, at times, called upon to expand or even re-envision doctrines or procedural rules. This article revisits that debate. It applies "Against Settlement" to transnational business and human rights litigation that has, over the past few decades, resulted in a number of high-profile civil claims across the common law world. In the context of that area of litigation, adjudication on the merits of a claim has benefits beyond the specific litigants involved. I focus on three transnational business and human rights case studies, all of which affirm one or more aspects of Fiss's argument that the notion of settlement as a systemic solution ought to be challenged. First, I address how the October 2020 settlement in Nevsun Resources Ltd v Araya further obscures what continues to be a murky intersection of customary international law and Canadian common law. Second, I look at United Kingdom litigation around Barrick Gold's labour practices in East Africa. In that instance, settlement has been ineffectual to stop the mining giant from continuing to engage in harmful practices that contribute to personal and environmental harm. And third, I discuss how the settlement in Garcia v Tahoe Resources Inc is an example of transnational corporate defendants side-stepping accountability when they settle out of court, even if they publicly acknowledge wrongdoing. The case studies suggest that Fiss's argument remains relevant and, to the extent it can be operationalized, it should be taken seriously, despite the fact that Alternative Dispute Resolution (ADR) mechanisms have become a panacea for problems associated with state-based judicial dispute resolution processes.
In 2019, two Roma-Hungarian travellers were prevented from boarding their flight to Canada. Even though their documents were in order and their travel was legitimate, they were singled out for examination and extra scrutiny. This article-relying on new evidence produced in a series of legal proceedings-shows how Canada has implemented a de facto system of racial profiling in airports overseas. This program was not built overnight, but produced by a series of historical accretions, all organized around the idea that potential refugees can be detected by their race. This article shows how Canada, to deter asylum seekers, has conscripted private actors to screen out some migrants. In this study, we explain how this racial profiling regime operates and test its legality against international legal instruments. We argue that this law offends basic Canadian legal commitments and that the practice ought to end.
