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Western Journal of Legal Studies最新文献

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A New Dawn for Canadian Platform Workers? 加拿大站台工人的新曙光？
Western Journal of Legal Studies Pub Date : 2024-02-09 DOI: 10.5206/uwojls.v15i1.15466
Fife Ogunde
{"title":"A New Dawn for Canadian Platform Workers?","authors":"Fife Ogunde","doi":"10.5206/uwojls.v15i1.15466","DOIUrl":"https://doi.org/10.5206/uwojls.v15i1.15466","url":null,"abstract":"In December 2021, the Ontario government passed into law Bill 88, the Working for Workers Act, 2022. Among other developments, the Working for Workers Act, 2022 introduced the Digital Platform Workers’ Rights Act, 2022 (the “Act”), establishing a number of rights for platform workers. This Article is a brief, non-exhaustive evaluation of the provisions of the Act, with particular emphasis on how it impacts the salient issues associated with the regulation of platform work. This Article concludes that, notwithstanding its limitations, the Act is a major step in the right direction towards effective regulation of the working conditions for platform workers.","PeriodicalId":40917,"journal":{"name":"Western Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139788190","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
A New Dawn for Canadian Platform Workers? 加拿大站台工人的新曙光？
Western Journal of Legal Studies Pub Date : 2024-02-09 DOI: 10.5206/uwojls.v15i1.15466
Fife Ogunde
{"title":"A New Dawn for Canadian Platform Workers?","authors":"Fife Ogunde","doi":"10.5206/uwojls.v15i1.15466","DOIUrl":"https://doi.org/10.5206/uwojls.v15i1.15466","url":null,"abstract":"In December 2021, the Ontario government passed into law Bill 88, the Working for Workers Act, 2022. Among other developments, the Working for Workers Act, 2022 introduced the Digital Platform Workers’ Rights Act, 2022 (the “Act”), establishing a number of rights for platform workers. This Article is a brief, non-exhaustive evaluation of the provisions of the Act, with particular emphasis on how it impacts the salient issues associated with the regulation of platform work. This Article concludes that, notwithstanding its limitations, the Act is a major step in the right direction towards effective regulation of the working conditions for platform workers.","PeriodicalId":40917,"journal":{"name":"Western Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139848165","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
To Affirm Difference or To Deny Distinction? 肯定差异还是否定区别？
Western Journal of Legal Studies Pub Date : 2024-02-09 DOI: 10.5206/uwojls.v15i1.16782
Flint Patterson
{"title":"To Affirm Difference or To Deny Distinction?","authors":"Flint Patterson","doi":"10.5206/uwojls.v15i1.16782","DOIUrl":"https://doi.org/10.5206/uwojls.v15i1.16782","url":null,"abstract":"What are the global canons of constitutional equality analysis? Many scholars would say that there are none. National courts cannot seem to agree on whether the guarantee is formal or substantive, intersectional or discrete, open-ended or strictly textual. This Article takes a different tact. There are two budding strands of equality law reasoning: the categorical canons and the difference canons. The former prohibit pernicious distinctions in the law, while the latter affirm individual difference. The difference canons are the more cogent of the two. Categorical equality reasoning leads to underinclusive protection that is discordant with the actual experience of discrimination. Meanwhile, difference equality reasoning quashes budding social inequities before they fester into pernicious “isms.” Categorical courts thus ought to take a page from the difference canons.","PeriodicalId":40917,"journal":{"name":"Western Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139790405","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
To Affirm Difference or To Deny Distinction? 肯定差异还是否定区别？
Western Journal of Legal Studies Pub Date : 2024-02-09 DOI: 10.5206/uwojls.v15i1.16782
Flint Patterson
{"title":"To Affirm Difference or To Deny Distinction?","authors":"Flint Patterson","doi":"10.5206/uwojls.v15i1.16782","DOIUrl":"https://doi.org/10.5206/uwojls.v15i1.16782","url":null,"abstract":"What are the global canons of constitutional equality analysis? Many scholars would say that there are none. National courts cannot seem to agree on whether the guarantee is formal or substantive, intersectional or discrete, open-ended or strictly textual. This Article takes a different tact. There are two budding strands of equality law reasoning: the categorical canons and the difference canons. The former prohibit pernicious distinctions in the law, while the latter affirm individual difference. The difference canons are the more cogent of the two. Categorical equality reasoning leads to underinclusive protection that is discordant with the actual experience of discrimination. Meanwhile, difference equality reasoning quashes budding social inequities before they fester into pernicious “isms.” Categorical courts thus ought to take a page from the difference canons.","PeriodicalId":40917,"journal":{"name":"Western Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139850149","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
The Conflation of the Justification Framework for Infringement of Aboriginal Rights with the Oakes Test in Tsilhqot’in Nation v British Columbia Tsilqot'in民族诉不列颠哥伦比亚案中侵犯原住民权利的辩护框架与Oakes测试的冲突
Western Journal of Legal Studies Pub Date : 2023-06-27 DOI: 10.5206/uwojls.v14i2.15667
D. Côté
{"title":"The Conflation of the Justification Framework for Infringement of Aboriginal Rights with the Oakes Test in Tsilhqot’in Nation v British Columbia","authors":"D. Côté","doi":"10.5206/uwojls.v14i2.15667","DOIUrl":"https://doi.org/10.5206/uwojls.v14i2.15667","url":null,"abstract":"In Tsilhqot'in Nation v British Columbia, the Supreme Court of Canada replaced the test for the justification of Aboriginal rights infringements with a framework that is nearly indistinguishable from the Oakes test. The goal of this paper is to show that this development in the law, and thus the current justification framework, is undesirable and erroneous. This paper submits four reasons to arrive at this conclusion. First, the justification test proposed in Tsilhqot'in mirrors the test rrequired to prove an infringement of Aboriginal rights, whose burden of proof falls on the Indigenous party, and hence shifts the entire onus of proving justification from the Crown to the Indigenous party. Second, the conflation of the Oakes test with the justification framework makes justification effectively impossible, which may cause reluctance amongst courts to recognize Aboriginal rights. Third, Aboriginal rights are fundamentally different from Charter rights and should not be subjected to a test designed for the Charter. Fourth, the incorporation of the Oakes test into the justification framework runs contrary to established principles of constitutional interpretation. These four reasons merit abandoning the framework proposed in Tsilhqot'in. Otherwise, this area of the law will be riddled with doctrinal flaws and Indigenous interests will suffer.","PeriodicalId":40917,"journal":{"name":"Western Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49577519","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Deductibility of Surrogacy Payments in Canadian Tax Law 加拿大税法中代理付款的扣除
Western Journal of Legal Studies Pub Date : 2023-06-27 DOI: 10.5206/uwojls.v14i2.14880
Tatiana Hulan
{"title":"Deductibility of Surrogacy Payments in Canadian Tax Law","authors":"Tatiana Hulan","doi":"10.5206/uwojls.v14i2.14880","DOIUrl":"https://doi.org/10.5206/uwojls.v14i2.14880","url":null,"abstract":"Surrogacy arrangements in Canada are estimated to have increased by 400% in the last decade, in part due to the rising rates of infertility. Costs for these arrangements can be upwards of $100,000. Individuals and couples using a surrogate to expand their family have sought relief under the medical expense tax credit pursuant to section 118.2(2) or the adoption tax credit pursuant to section 118.01(2) of the Income Tax Act. The deductibility of these payments is a relatively new issue in Canadian tax law; however Canadian courts have consistently denied the deduction of surrogacy payments. The Tax Court of Canada has heard five cases on the matter and has denied the deduction in all four that have precedential value. Surrogates do not meet the definition of “patient” to qualify for the medical expense tax credit and are outside the scope of the adoption tax credit. This article canvases legal and policy arguments in favour of and against allowing surrogacy payments to be tax deductible. It proposes the creation of a new surrogacy expense tax credit, similar in design to the existing adoption tax credit.","PeriodicalId":40917,"journal":{"name":"Western Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43512483","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Are Delayed Complaints of Sexual Harassment Not Worthy of Human Rights Protection? 拖延性骚扰投诉不值得人权保护吗？
Western Journal of Legal Studies Pub Date : 2023-06-27 DOI: 10.5206/uwojls.v14i2.16001
Sophie Poinar
{"title":"Are Delayed Complaints of Sexual Harassment Not Worthy of Human Rights Protection?","authors":"Sophie Poinar","doi":"10.5206/uwojls.v14i2.16001","DOIUrl":"https://doi.org/10.5206/uwojls.v14i2.16001","url":null,"abstract":"\u0000Within the current legislative landscape in Ontario, survivors of sexual harassment are treated differently than survivors of sexual assault and sexual misconduct with respect to when they can advance a legal claim against their perpetrators. Under sections 16(1)(h) and 16(1)(h.1) of the Ontario Limitations Act, survivors of sexual assault and misconduct are able to file a civil claim whenever they choose to do so. Under s 34(1) of the Ontario Human Rights Code, survivors of sexual harassment must file a human rights complaint within one year of the experienced harassment. This paper argues that s 34(1) should not apply to complaints based on sexual harassment. The author provides four reasons to substantiate this argument: (1) this provision fails to align with contemporary understandings of sexual harassment; (2) it is arbitrary to apply drastically different timelines to survivors depending on the type of sexual violence they have experienced; (3) two important objectives of limitation periods will not be seriously threatened by the suggested amendment to the Human Rights Code; and (4) section 34(1) favours the interests of the harassers over those of the survivor, the public, Bill 132 and the Human Rights Code.\u0000","PeriodicalId":40917,"journal":{"name":"Western Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46720773","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Harm Reduction in Prisons: Restraints within the Prisoners’ Rights Discourse 监狱减少伤害:囚犯权利话语中的约束
Western Journal of Legal Studies Pub Date : 2023-01-31 DOI: 10.5206/uwojls.v14i1.15144
Étienne F. Lacombe
{"title":"Harm Reduction in Prisons: Restraints within the Prisoners’ Rights Discourse","authors":"Étienne F. Lacombe","doi":"10.5206/uwojls.v14i1.15144","DOIUrl":"https://doi.org/10.5206/uwojls.v14i1.15144","url":null,"abstract":"A growing gap exists between the availability of harm reduction initiatives in mainstream society and those offered in correctional institutions. The quality of current risk-reducing measures in penitentiaries and the absence of more ambitious programs have led prisoners’ rights advocates to seek relief through litigation, often unsuccessfully. The author deconstructs these cases and traces litigants’ lack of success to two factors, which he contends condition harm reduction litigation in the prison context. While the law is clear that inmates retain their civil rights behind bars, the author concludes that the generic legal channels through which inmates must litigate their rights and a widespread conception of health that centres on treatment rather than prevention impede efforts to import harm reduction initiatives into penitentiaries. Although past prison litigation reveals great strides to providing inmates with the same rights and protections as members of the general population, challenges to the availability of harm reduction initiatives fit uneasily within the established pattern of prisoners’ rights litigation. In order to accommodate harm reduction claims, the prisoners’ rights discourse would need to be reconceptualized at the stakeholder and judicial levels.","PeriodicalId":40917,"journal":{"name":"Western Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44830903","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Wrongly Imprisoned, Released as a Pauper: Canada’s Ineffective Approach to Innocence Compensation and Avenues for Reform 被错误监禁，作为罪犯获释：加拿大无效的无罪赔偿方法和改革途径
Western Journal of Legal Studies Pub Date : 2023-01-31 DOI: 10.5206/uwojls.v14i1.14627
Omri Rozen
{"title":"Wrongly Imprisoned, Released as a Pauper: Canada’s Ineffective Approach to Innocence Compensation and Avenues for Reform","authors":"Omri Rozen","doi":"10.5206/uwojls.v14i1.14627","DOIUrl":"https://doi.org/10.5206/uwojls.v14i1.14627","url":null,"abstract":"Canada’s innocence compensation framework is inadequate and unjust. To secure compensation for the myriad harms caused to them by miscarriages of justice, the wrongfully convicted in Canada can either rely on civil suits adjudicated on standards deferential to state actors and with remote prospects of recovery, or must subject themselves to entirely discretionary assessments of ex gratia payments by the executive. In this paper, I provide an overview of why this status quo is undesirable. I then examine other jurisdictions’ innovative approaches to innocence compensation, grounded in a distinction between ‘statutory schedule’ and ‘adjudicated rights’ frameworks. I conclude by setting out the advantages and disadvantages of each approach with a view to informing Canadian lawmakers should they be interested in reform.  ","PeriodicalId":40917,"journal":{"name":"Western Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46178494","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Contract Law’s Red Herring: Exposing “Intention” as a Guise for Consideration 《合同法》的红线：暴露“意图”作为对价的指南
Western Journal of Legal Studies Pub Date : 2023-01-31 DOI: 10.5206/uwojls.v14i1.15360
L. Goldfarb
{"title":"Contract Law’s Red Herring: Exposing “Intention” as a Guise for Consideration","authors":"L. Goldfarb","doi":"10.5206/uwojls.v14i1.15360","DOIUrl":"https://doi.org/10.5206/uwojls.v14i1.15360","url":null,"abstract":"This paper describes and evaluates the contested fourth requirement for contract formation: the intention of both parties that their agreement be legally enforceable (“legal intention”). I begin with an overview of the jurisprudence on legal intention, ending with the Supreme Court of Canada’s most recent pronouncement in Ethiopian Orthodox Church of Canada St. Mary Cathedral v Aga. While the Court in this case affirmed that legal intention is to be treated as a fourth requirement, its analysis reveals precisely the reason why it should not be: when courts purport to analyze legal intention, an inherently difficult value to assess, they often lapse into a veiled assessment of consideration instead. I draw on Peter Benson's conception of \"robust consideration\" to argue that we should dispense with the legal intention requirement. In its place, a clear test for robust consideration would allow courts to conduct self-aware analyses free from contorted intention assessments. I conclude by offering an interpretation of Balfour v Balfour, the seminar case supporting a legal intention requirement, that is consistent with my proposed approach to contract formation. ","PeriodicalId":40917,"journal":{"name":"Western Journal of Legal Studies","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49451922","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
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