This article reports on an original empirical study of the quantitative readability of a large corpus of Canadian court and tribunal decisions. Specifically, the article uses a new law-specific readability formula that is designed to predict how well readers of different education levels will understand an adjudicative decision to compute readability scores for 1,621 discrete decision and opinion files, containing over 9.3 million words of text, from cases that were decided in 2022. The results are coded based on author name, author gender, jurisdiction, legal subject area, opinion type, word count, and other variables-and are made publicly available. Although the article highlights and discusses some of the more noteworthy results, its true value lies in its potential as a resource for others. Future researchers can query the results reported within this article for their own purposes to answer their own research questions, based on the variables that are of most interest to them. Similarly, authors of adjudicative decisions whose scores are reported in this study can find and contemplate their scores to assess whether they are satisfied with the readability levels of their decisions. And, other judges or tribunal members can search the results to identify highly readable decisions that might serve as inspiration to these judges in their future decisions.
This article is concerned with the judicial interpretation of the pollution exclusion clause (PEC) commonly found in commercial general liability insurance policies. The PEC removes from coverage claims arising out of the insureds' discharge of pollutants. Conflicting expectations about the scope of such exclusion has resulted infrequent litigation between insurers and policyholders. Insurers often rely on the PEC to deny coverage for claims arising out of workplace accidents that incidentally involve chemical discharges. By contrast, policyholders submit that the PEC should be interpreted more narrowly in light of the purpose and commercial context of the policy. Canadian case law is unsettled. The lack of a uniform interpretive approach creates legal uncertainty, which compromises the insureds' or policyholder's ability to determine the likelihood of a claim being paid and prevents the parties to a coverage dispute from predicting the outcome of the litigation process. This article identifies the sources of the legal uncertainty surrounding the interpretation of the PEC and proposes an interpretation that promotes greater clarity and coherence in the interpretation process. Its main thesis is twofold. First, it argues that the interpretive constructs used by courts are conceptually flawed and incapable of determining the applicability of the PEC in a coherent andpredictable manner. Second, it argues that greater coherence and predictability can be attained by recognizing the fortuity-based rationale underlying the PEC. The target of the PEC is the fortuity-frustrating behaviours by the insureds, who subjectively mean to bring about the pollution-related loss. In light of this premise, the PEC should be interpreted as removing from coverage the pollution-related losses that are expected or intended from the standpoint of the insured. This is the only way to interpret the PEC that promotes its underlying purpose and is consistent with the principles of insurance policy interpretation established by the Supreme Court of Canada.
Canadas' Emergencies Act was first invoked in February 2022. This paper evaluates the Emergencies Act and investigates the problems of legitimacy resulting from the executives' use of emergency powers. It concludes that, although serious challenges remain, the Emergencies Act regime represents an inevitable compromise between constraints which would foster legitimacy and the rapid, centralized decision-making required during a crisis. However, the legitimacy of emergency action would be strengthened by the imposition of a strict standard of judicial review by the courts or Parliament. First, the paper reviews the literature on emergency powers. Second, the paper discusses the historical background to the Emergencies Act, including martial law and the notorious War Measures Act. Third, the paperprovides an overview of the structure andpassage of the Emergencies Act. Fourth, the paper summarizes the 2022 Public Order Emergency. Finally, the paper assesses the Emergencies Act and proposes a framework for the judicial review of emergency action, commenting on the decision of the Federal Court of Canada in Canadian Frontline Nurses v Canada (Attorney General).
The Supreme Court of Canada concluded in R v Ndhlovu that a federal sex offender registry requiring all sex offenders be included therein deprived these offenders of liberty in a manner that violated the principle of fundamental justice prohibiting overbroad laws. In so concluding, the Court did not opine upon whether mandatory sex offender registry orders constitute p"unishment" for constitutional purposes. I contend that the prior sex offender registries ought to have so qualified given their "serious", "onerous", and "considerable" impact on liberty, their mandatory nature, and overbroad impact on numerous offenders. Adopting a punishment-based framework for sex offender registries would have two important consequences: first, the broader objectives inherent to punishment analysis would shelter the sex offender registry laws from scrutiny for overbreadth; and second, the denunciatory and deterrent benefits inherent to such a framework would avoid any finding that the sex offender registries constitute "cruel and unusual" punishment. While any retroactive application would infringe section 11(i) of the Charter, narrow clauses excluding low-end offenders can be crafted in a way that would survive constitutional scrutiny. Parliaments' recent reply to Ndhlovu following the adoption of Bill S-12 should therefore be assessed in light of the option to adopt a punishment-based framework that would have continued to make sex offender registry orders mandatory.
