OSGOODE HALL LAW JOURNAL最新文献

{"title":"The Court System in a Time of Crisis: COVID-19 and Issues in Court Administration","authors":"R. Haigh, Bruce Preston","doi":"10.60082/2817-5069.3608","DOIUrl":"https://doi.org/10.60082/2817-5069.3608","url":null,"abstract":"Canadian courts, in many ways, are neither efficient nor effective This has been clear for many years This article looks broadly at how little attention has been paid to court administration in the past, especially during times of crisis, and examines the impact the current pandemic may have on the future of Canadian court administration In this vein, we examine emergency plans in general before turning to pandemic-specific plans and how, especially in Canada, these have been found wanting during this current crisis Like most organizations, courts have developed plans – business contingency (BCPs) in Canada and continuity of operation (COOPs) in the United States-laying out policies and processes to follow in an emergency Yet none of the various disaster plans created by courts in both Canada and the United States highlight the role and importance technology would play Despite the increasing use of remote access for hearings-there has been a great deal of success in scheduling appeal hearings remotely-most courts have been unable to operate at pre-pandemic levels In fact, most courts have postponed the majority of their hearings and have had to push dockets forward Postponing a large portion of the courts' hearings will undoubtedly add to a backlog of cases and increase the administrative burden on operations once physical distancing is removed But the change in attitude that has taken place over the past few months is arguably greater than the sum of all changes made over the last forty years since Carl Baar's reference to courts being \"horse-and-buggy\" organizations The pandemic has provided a perfect occasion-no doubt forced but relatively low-risk-to try new things Our position is that steps need to be taken to ensure that an increased reliance on \"privileged access to technology\" during COVID-19 does not lead to an \"exacerbation of denial of access to justice \"","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":"1 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41329253","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}

{"title":"Law in the Time of COVID","authors":"R. Haigh, Dan Priel","doi":"10.60082/2817-5069.3598","DOIUrl":"https://doi.org/10.60082/2817-5069.3598","url":null,"abstract":"In early January of this year, newspapers started reporting on a mysterious new respiratory disease that was spreading in Wuhan, China At the time, few paid much attention to that nameless disease A month later, China was effectively in lockdown;most of the rest of the world was cautious but life continued largely as before In another month, the virus spread across the globe, and with it the eerie images of deserted streets Our university shut its doors on March 13, 2020, after a week of increasing pandemic anxiety in Toronto As we write this in December, it is still largely shuttered The prognosis for the upcoming winter semester remains bleak: Another term where Osgoode remains closed, and the normally bustling and life-affirming hallways, library, cafeteria, offices, classrooms and atrium, stay silent and still","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46420114","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}

{"title":"Consumer Bankruptcy in the Wake of COVID-19: The Calm Before the Storm","authors":"Stephanie Ben-Ishai","doi":"10.60082/2817-5069.3602","DOIUrl":"https://doi.org/10.60082/2817-5069.3602","url":null,"abstract":"The crisis created by the spread of COVID-19 seems likely to permanently change the structure of economic activity moving forward-more people are working from home, taking fewer business trips, and gravitating towards online spending In the short-term, Canada has done well to provide temporary economic support to those temporarily or permanently affected by the virus This unprecedented level of government support, together with the unparalleled level of voluntary creditor forbearance for late payments, has led to a remarkable drop in consumer bankruptcy filings in April and May 2020 However, a significant surge in the need for debt relief and bankruptcy filings is predicted for the near future This article concerns the effect of COVID-19 on the household debt carried by Canadian families and on the debt relief measures that are available to them How, if at all, will the socio-economic composition of those with serious debt problems change? Are the debt relief measures currently available through the Bankruptcy and Insolvency Act adequate to the task? What changes to the system of credit regulation might help those affected by the virus?","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42282248","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}

{"title":"Integrating Sustainable Development in International Investment Law, by Manjiao Chi","authors":"Haniehalsadat Aboutorabifard","doi":"10.60082/2817-5069.3592","DOIUrl":"https://doi.org/10.60082/2817-5069.3592","url":null,"abstract":"The idea of sustainable development has a long history and is comparable to that of democracy, freedom, and justice.3 In the twenty-first century, sustainable development is an unavoidable paradigm underpinning all human actions from local to global levels, in both the public and private sectors. Sustainable development is high on the global governance agenda and needs to be followed by making a balance between the competing priorities of economic growth, environmental protection, and social progress.4 Sustainable development, on the one hand, is closely dependent on transnational investment activities to promote economic growth, especially in developing countries. On the other hand, it requires foreign investors to consider socio-environmental issues associated with their investment activities. Despite the universal importance of the role of transnational investment activities in sustainable development, whether and to what extent international investment law could amount to a legal norm that protects socio-environmental values while encouraging economic growth is not a settled issue. This book review is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/ iss2/8","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":"1 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71318950","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}

{"title":"The Wetiko Legal Principles: Cree and Anishinabek Responses to Violence and Victimization by Hadley Louise Friedland","authors":"Natasha Novac","doi":"10.60082/2817-5069.3590","DOIUrl":"https://doi.org/10.60082/2817-5069.3590","url":null,"abstract":"Can we reject a monstrous act without rejecting the actor as a monster? This is the question occupying Hadley Louise Friedland, Assistant Professor of Law at the University of Alberta, in The Wetiko Legal Principles: Cree and Anishinabek Responses to Violence and Victimization. Speaking broadly, the book is dedicated to identifying and examining Indigenous laws for guidance on how Indigenous communities can deal with high rates of interpersonal violence in Indigenous communities today, particularly violence against children. The innovation in Friedland’s work is her creative use of source material: She takes as her starting point traditional Cree and Anishinabek stories about wetikos, or cannibal giants, which she positions as vestibules of Indigenous law. In Friedland’s view, wetiko stories contain legal principles and practical resources that can help First Nations manage community members who act violently toward others. It is her task, as a scholar, to examine those stories through a legal lens and mine them for solutions to a rarely acknowledged problem. This book review is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/ iss2/7","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42863908","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}

{"title":"Rethinking the Doctrine of Aboriginal Rights: The Métis Cases","authors":"P. Chartrand","doi":"10.60082/2817-5069.3587","DOIUrl":"https://doi.org/10.60082/2817-5069.3587","url":null,"abstract":"","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42641910","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}

{"title":"Not Enough: Human Rights in an Unequal World, by Samuel Moyn","authors":"Mariam Jannat Sheikh","doi":"10.60082/2817-5069.3597","DOIUrl":"https://doi.org/10.60082/2817-5069.3597","url":null,"abstract":"Human rights have come to represent some of the highest ideals of humanity. In Samuel Moyn’s Not Enough: Human Rights in an Unequal World, the Professor of History and Law at Yale University traces the history of the origins of human rights and details a comprehensive narrative of their evolution through various sources. Despite their status as a legal ideology, human rights have often been colloquially invoked to describe broader social entitlements. For this reason, Moyn’s work goes far beyond situating rights as legal instruments, and engages with the political philosophies that underpin human rights as an ideology that function as a reflection of their place in history. This book review is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/ iss1/11","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47314357","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}

{"title":"Potential Aboriginal Rights-holders: Canada and Cultural Communities versus Indigenous Peoples and Socio-political Bodies","authors":"Gordon Christie","doi":"10.60082/2817-5069.3579","DOIUrl":"https://doi.org/10.60082/2817-5069.3579","url":null,"abstract":"","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44506239","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}

{"title":"A Right Without a Rights-Holder Is Hollow: Introduction to OHLJ’s Special Issue on Identifying Rights-Bearing Aboriginal Peoples","authors":"Karen Drake","doi":"10.60082/2817-5069.3615","DOIUrl":"https://doi.org/10.60082/2817-5069.3615","url":null,"abstract":"Abstract The focus of this special issue of the Osgoode Hall Law Journal is on identifying holders of rights which are recognized and affirmed by section 35(1) of the Constitution Act, 1982. While Canadian and provincial governments and industry proponents have assumed that Indian Act bands are section 35 rights-holders, Kent McNeil’s analysis of the relevant jurisprudence reveals that this issue is to be resolved with reference to Aboriginal peoples’ own laws. As such, the assumption that a section 35 rights-holder must possess an overarching governance structure is unwarranted if the relevant Aboriginal people’s own laws are not grounded in positivism. Naiomi Metallic’s incisive critique demonstrates that the reasoning in R v Bernard was captured by precisely this type of positivist assumption when the court held that smaller Mìgmaq collectives—as opposed to the larger Mìgmaq nation—must be the rights-holder because the larger Mìgmaq nation lacked a ‘Super Chief’. Gordon Christie identifies another form of capture within the section 35 jurisprudence: Aboriginal peoples are presumed to be socio-cultural bodies and not political bodies, and Aboriginal rights are presumed to be cultural activities and not governmental powers to exercise jurisdictional authority. Both presumptions are captured by liberalism and neither is supported by the text or by a purposive interpretation of section 35(1). Sara Mainville’s article uncovers a conflict between Canadian and Indigenous law in the context of a Kelly order, which courts characterize as a practical solution to the dilemma of how to identify the rights-holder on an interlocutory motion. Mainville demonstrates that the adversarial effects of a Kelly order contravene the Anishinaabe legal principle of consensus-building. Perhaps unsurprisingly given these various conflicts between Canadian jurisprudence and Indigenous laws, Paul Chartrand argues that the identity of rights-holders should be decided through political negotiations between political actors, and not by the courts. Similarly, Jason Madden argues that the Supreme Court of Canada’s jurisprudence entails a duty on Canadian and provincial governments to negotiate with an Aboriginal people to identify the","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48917014","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}

{"title":"Understanding the Ongoing Dialogues on Indigenous Issues in Canadian Legal Education Through the Lens of Institutional Cultures (Case Studies at UQAM, UAlberta, and UMoncton)","authors":"Adrien Habermacher","doi":"10.60082/2817-5069.3581","DOIUrl":"https://doi.org/10.60082/2817-5069.3581","url":null,"abstract":"","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45162013","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}