FEED Validator

for Atom and RSS and KML

Congratulations!

This is a valid RSS feed.

Recommendations

This feed is valid, but interoperability with the widest range of feed readers could be improved by implementing the following recommendations.

line 338, column 3: description should not contain relative URL references: #_ftn1 (2 occurrences) [help]
```
]]></description>
   ^
```
line 368, column 3: content:encoded should not contain relative URL references: #_ftn1 (26 occurrences) [help]
```
]]></content:encoded>
   ^
```
line 394, column 0: content:encoded should not contain decoding attribute (5 occurrences) [help]
```
<div id="attachment_106582" style="width: 610px" class="wp-caption alignnone ...
```
line 394, column 0: content:encoded should not contain aria-describedby attribute (3 occurrences) [help]
```
<div id="attachment_106582" style="width: 610px" class="wp-caption alignnone ...
```
line 394, column 0: content:encoded should not contain sizes attribute (5 occurrences) [help]
```
<div id="attachment_106582" style="width: 610px" class="wp-caption alignnone ...
```
line 397, column 0: content:encoded should not contain loading attribute (4 occurrences) [help]
```
<div id="attachment_106583" style="width: 610px" class="wp-caption alignnone ...
```
line 932, column 0: description should not contain loading attribute (2 occurrences) [help]
```
<img loading="lazy" decoding="async" class="alignright size-medium wp-ima ...
```
line 932, column 0: description should not contain decoding attribute (2 occurrences) [help]
```
<img loading="lazy" decoding="async" class="alignright size-medium wp-ima ...
```
line 932, column 0: description should not contain sizes attribute (2 occurrences) [help]
```
<img loading="lazy" decoding="async" class="alignright size-medium wp-ima ...
```
line 1006, column 0: description should not contain data-viibes-parag attribute [help]
```
<p style="padding-left: 40px;" data-viibes-parag="81" data-viibes-start="80" ...
```
line 1006, column 0: description should not contain data-viibes-start attribute [help]
```
<p style="padding-left: 40px;" data-viibes-parag="81" data-viibes-start="80" ...
```
line 1006, column 0: description should not contain data-viibes-end attribute [help]
```
<p style="padding-left: 40px;" data-viibes-parag="81" data-viibes-start="80" ...
```
line 1014, column 0: content:encoded should not contain data-viibes-parag attribute (8 occurrences) [help]
```
<p style="padding-left: 40px;" data-viibes-parag="81" data-viibes-start="80" ...
```
line 1014, column 0: content:encoded should not contain data-viibes-start attribute (8 occurrences) [help]
```
<p style="padding-left: 40px;" data-viibes-parag="81" data-viibes-start="80" ...
```
line 1014, column 0: content:encoded should not contain data-viibes-end attribute (8 occurrences) [help]
```
<p style="padding-left: 40px;" data-viibes-parag="81" data-viibes-start="80" ...
```
line 1025, column 0: content:encoded should not contain data-lbh-p-number attribute (2 occurrences) [help]
```
<div class="paragWrapper" data-lbh-p-number="40" data-lbh-p-anchor="par40" d ...
```
line 1025, column 0: content:encoded should not contain data-lbh-p-anchor attribute (2 occurrences) [help]
```
<div class="paragWrapper" data-lbh-p-number="40" data-lbh-p-anchor="par40" d ...
```
line 1025, column 0: content:encoded should not contain data-lbh-p-noteup-link attribute (2 occurrences) [help]
```
<div class="paragWrapper" data-lbh-p-number="40" data-lbh-p-anchor="par40" d ...
```
line 1077, column 0: description should not contain aria-describedby attribute [help]
```
<a href="https://www.slaw.ca/wp-content/uploads/2024/04/IACtHR_Eng.png">< ...
```

Source: http://www.slaw.ca/feed

<?xml version="1.0" encoding="UTF-8"?><rss version="2.0"
xmlns:content="http://purl.org/rss/1.0/modules/content/"
xmlns:wfw="http://wellformedweb.org/CommentAPI/"
xmlns:dc="http://purl.org/dc/elements/1.1/"
xmlns:atom="http://www.w3.org/2005/Atom"
xmlns:sy="http://purl.org/rss/1.0/modules/syndication/"
xmlns:slash="http://purl.org/rss/1.0/modules/slash/"
>
<channel>
<title>Slaw</title>
<atom:link href="https://www.slaw.ca/feed/" rel="self" type="application/rss+xml" />
<link>https://www.slaw.ca/</link>
<description>Canada's online legal magazine</description>
<lastBuildDate>Thu, 18 Apr 2024 20:45:26 +0000</lastBuildDate>
<language>en-US</language>
<sy:updatePeriod>
hourly </sy:updatePeriod>
<sy:updateFrequency>
1 </sy:updateFrequency>
<generator>https://wordpress.org/?v=6.5.2</generator>
<item>
<title>Remembering Attorney General Roy McMurtry</title>
<link>https://www.slaw.ca/2024/04/19/remembering-attorney-general-roy-mcmurtry/</link>
<comments>https://www.slaw.ca/2024/04/19/remembering-attorney-general-roy-mcmurtry/#respond</comments>
<dc:creator><![CDATA[Adam Dodek]]></dc:creator>
<pubDate>Fri, 19 Apr 2024 11:00:51 +0000</pubDate>
<category><![CDATA[Legal Ethics]]></category>
<category><![CDATA[Practice of Law]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106766</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png">
The Hon. Roy McMurtry had a stellar career, serving as Chief Justice of Ontario, Canadian High Commissioner to the United Kingdom, Commissioner of the Canadian Football League, and Attorney General of Ontario. When he passed away in March, many of the tributes rightly focussed on the critical role he played in reaching “the kitchen accord” which led to the patriation of the Constitution with the enactment of the Charter of Rights and Freedoms, section 35 and the notwithstanding clause. Other tributes noted his participation in the landmark case of <a href="https://en.wikipedia.org/wiki/Halpern_v_Canada_(AG)#:~:text=The%20Ontario%20Court%20of%20Appeal,reasonable%20infringement%22%20under%20section%201.">Halpern v. Canada</a> (2003), which legalized same-sex marriage.
Because McMurtry . . . <a href="https://www.slaw.ca/2024/04/19/remembering-attorney-general-roy-mcmurtry/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/19/remembering-attorney-general-roy-mcmurtry/">Remembering Attorney General Roy McMurtry</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"> The Hon. Roy McMurtry had a stellar career, serving as Chief Justice of Ontario, Canadian High Commissioner to the United Kingdom, Commissioner of the Canadian Football League, and Attorney General of Ontario. When he passed away in March, many of the tributes rightly focussed on the critical role he played in reaching “the kitchen accord” which led to the patriation of the Constitution with the enactment of the Charter of Rights and Freedoms, section 35 and the notwithstanding clause. Other tributes noted his participation in the landmark case of <a href="https://en.wikipedia.org/wiki/Halpern_v_Canada_(AG)#:~:text=The%20Ontario%20Court%20of%20Appeal,reasonable%20infringement%22%20under%20section%201.">Halpern v. Canada</a> (2003), which legalized same-sex marriage.
Because McMurtry died the week of the funeral for former Prime Minister Brian Mulroney, his death did not get the breadth of attention that it should have. In particular, with all of McMurtry’s accomplishments, the enormity of his achievements as Ontario’s Attorney General between 1975 and 1985 was somewhat lost.
The sheer longevity of Mr. McMurtry’s tenure of Attorney General is remarkable. We are unlikely to see anything like it in the future. In the decade after McMurtry’s tenure, there were <a href="https://en.wikipedia.org/wiki/Attorney_General_of_Ontario">five</a> Attorneys General (Robert Welch, Alan Pope, Ian Scott, Howard Hampton and Marion Boyd). This coincided with the end of the Tories’ 40-year reign in Ontario, the election of the NDP under Bob Rae and Liberal rule under David Peterson. In the Harris-Eves years (1995-2003), there were <a href="https://en.wikipedia.org/wiki/Attorney_General_of_Ontario">four</a> Attorneys General (Charles Harnick, Jim Flaherty, David Young and Norm Sterling). Liberal Dalton McGuinty (2003-13) had <a href="https://en.wikipedia.org/wiki/Attorney_General_of_Ontario">three</a> Attorneys General (Michael J. Bryant, Chris Bentley and John Gerretsen) and his successor Kathleen Wynne (2013-18) also had <a href="https://en.wikipedia.org/wiki/Attorney_General_of_Ontario">three</a> Attorneys General (Gerretsen, Madelaine Meilleur and Yasir Naqvi). So far, Premier Doug Ford (2018-) has only had <a href="https://en.wikipedia.org/wiki/Attorney_General_of_Ontario">two</a> Attorneys General (Caroline Mulroney and Doug Downey).
During his ten-year term as Attorney General, Mr. McMurtry significantly overhauled the administration of justice in Ontario. When I worked as an advisor to Attorney General Michael Bryant, we marvelled at the sheer number of bills that McMurtry was able to pass each year. This was due to McMurtry’s stature within Premier Bill Davis’s cabinet and his ability to forge consensus and support from the NDP and Liberal opposition parties.
As a result, McMurtry introduced family law reforms, expanded legal aid and made Ontario’s justice system bilingual. On the latter issue, he faced – and overcame – significant opposition within his own party.
McMurtry put his stamp on the Ministry of the Attorney General to such an extent that senior officials were known as “Roy’s Boys”. This caused some problems for his successor and friend, <a href="https://en.wikipedia.org/wiki/Ian_Scott_(Ontario_politician)#:~:text=He%20was%20a%20cabinet%20minister,soul%22%20of%20the%20Peterson%20cabinet.">Ian Scott</a>. It is well-known that Scott reversed McMurtry’s position in the <a href="https://en.wikipedia.org/wiki/Justine_Blainey-Broker">Blainey case</a>, where Justine Blainey challenged her exclusion from a boy’s hockey team.
Attorney General Michael Bryant greatly respected both McMurtry and Scott who in turn were much revered amongst the staff at 720 Bay Street, the headquarters of Ontario’s Ministry of the Attorney General. Bryant decided to change the building’s name to “The McMurtry-Scott Building”. At the memorable event, both McMurtry and Scott were in attendance and McMurtry said that he was honoured that his name was to be put on the building along with that of his friend Ian Scott. Scott reciprocated the sentiment. The two were both cut from a different cloth.
Scott passed away in 2006 and now his friend Roy McMurtry has joined him. Two giants of the law.
We all live in Roy McMurtry’s legal world. From family law reform to legal aid to bilingualism in the courts to patriation of the Constitution and the enactment of the Charter to the legalization of same-sex marriage to the creation of Pro Bono Ontario, there are so many areas of the law and of life that McMurtry impacted.
We owe him a huge debt of gratitude.
The post <a href="https://www.slaw.ca/2024/04/19/remembering-attorney-general-roy-mcmurtry/">Remembering Attorney General Roy McMurtry</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/19/remembering-attorney-general-roy-mcmurtry/feed/</wfw:commentRss>
<slash:comments>0</slash:comments>
</item>
<item>
<title>Friday Jobs Roundup</title>
<link>https://www.slaw.ca/2024/04/19/friday-jobs-roundup-170/</link>
<comments>https://www.slaw.ca/2024/04/19/friday-jobs-roundup-170/#respond</comments>
<dc:creator><![CDATA[Administrator]]></dc:creator>
<pubDate>Fri, 19 Apr 2024 10:59:04 +0000</pubDate>
<category><![CDATA[Friday Jobs Roundup]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106768</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png">
Each Friday, we share the latest job listings from Slaw Jobs, which features employment opportunities from across the country. Find out more about these positions by following the links below, or <a href="https://jobs.slaw.ca/about/">learn how you can use Slaw Jobs</a> to gain valuable exposure for your job ads, while supporting the great Canadian legal commentary at Slaw.ca.
Current postings on Slaw Jobs:
<ul>
<li><a href="https://jobs.slaw.ca/job/director-of-policing-oversight-and-accountability/">Director of Policing, Oversight and Accountability</a> | Head Office in Westbank or any Indigenous Justice Centre, Canada 
(BC First Nations Justice Council)</li>
<li><a href="https://jobs.slaw.ca/job/family-lawyer-chilliwack-bc/">Family Lawyer</a> (Full-time) | Chilliwack, BC 
(Waterstone Law Group LLP)</li>
<li><a href="https://jobs.slaw.ca/job/accountant-chilliwack-bc/">Accountant</a> (Full-time) | Chilliwack, BC 
(Waterstone Law Group </li>
</ul>
 . . . <a href="https://www.slaw.ca/2024/04/19/friday-jobs-roundup-170/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/19/friday-jobs-roundup-170/">Friday Jobs Roundup</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png"> <div class="content-wrap">
<div class="content-wrap">
Each Friday, we share the latest job listings from Slaw Jobs, which features employment opportunities from across the country. Find out more about these positions by following the links below, or <a href="https://jobs.slaw.ca/about/">learn how you can use Slaw Jobs</a> to gain valuable exposure for your job ads, while supporting the great Canadian legal commentary at Slaw.ca.
Current postings on Slaw Jobs:
<ul>
<li><a href="https://jobs.slaw.ca/job/director-of-policing-oversight-and-accountability/">Director of Policing, Oversight and Accountability</a> | Head Office in Westbank or any Indigenous Justice Centre, Canada 
(BC First Nations Justice Council)</li>
<li><a href="https://jobs.slaw.ca/job/family-lawyer-chilliwack-bc/">Family Lawyer</a> (Full-time) | Chilliwack, BC 
(Waterstone Law Group LLP)</li>
<li><a href="https://jobs.slaw.ca/job/accountant-chilliwack-bc/">Accountant</a> (Full-time) | Chilliwack, BC 
(Waterstone Law Group LLP)</li>
</ul>
</div>
</div>
The post <a href="https://www.slaw.ca/2024/04/19/friday-jobs-roundup-170/">Friday Jobs Roundup</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/19/friday-jobs-roundup-170/feed/</wfw:commentRss>
<slash:comments>0</slash:comments>
</item>
<item>
<title>The Lack of Protection for Non-Denominational Identity: The Webber Academy Case</title>
<link>https://www.slaw.ca/2024/04/18/the-lack-of-protection-for-non-denominational-identity-the-webber-academy-case/</link>
<comments>https://www.slaw.ca/2024/04/18/the-lack-of-protection-for-non-denominational-identity-the-webber-academy-case/#respond</comments>
<dc:creator><![CDATA[Patricia Hughes]]></dc:creator>
<pubDate>Thu, 18 Apr 2024 20:44:12 +0000</pubDate>
<category><![CDATA[Case Comment]]></category>
<category><![CDATA[Substantive Law: Judicial Decisions]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106772</guid>
<description><![CDATA[INTRODUCTION
Webber Academy (or “the school”), a private educational institution in Alberta, defined itself as non-denominational: it did not engage in any overt religious practice (with one possible and qualified exception). Yet, after two Alberta Human Rights Commission (AHRC) decisions, two Queen’s Bench (as it then was) (QB) judgements, two Court of Appeal (CA) rulings and two denial of leaves to appeal by the Supreme Court of Canada (SCC), it was held to have discriminated without justification against two Muslim students whom it prohibited from engaging, on school property, in overt prayers. How did this happen? And what does it . . . <a href="https://www.slaw.ca/2024/04/18/the-lack-of-protection-for-non-denominational-identity-the-webber-academy-case/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/18/the-lack-of-protection-for-non-denominational-identity-the-webber-academy-case/">The Lack of Protection for Non-Denominational Identity: The Webber Academy Case</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[INTRODUCTION
Webber Academy (or “the school”), a private educational institution in Alberta, defined itself as non-denominational: it did not engage in any overt religious practice (with one possible and qualified exception). Yet, after two Alberta Human Rights Commission (AHRC) decisions, two Queen’s Bench (as it then was) (QB) judgements, two Court of Appeal (CA) rulings and two denial of leaves to appeal by the Supreme Court of Canada (SCC), it was held to have discriminated without justification against two Muslim students whom it prohibited from engaging, on school property, in overt prayers. How did this happen? And what does it mean for whether a private school is able to function in accordance with its own beliefs?
There were two complete rounds of litigation in this case. For convenience, they are set out here:
Round One: a complaint to the AHRC by the students’ parents; an appeal from the AHRC’s 2015 decision (<a href="https://canlii.ca/t/gh5p5">Amir and Nazar v. Webber Academy Foundation</a> [AHRC 1]) by Webber Academy to the QB; an appeal from the 2016 QB decision (Webber Academy Foundation v. <a href="https://canlii.ca/t/gswsg">Alberta (Human Rights Commission)</a> [QB 1]) by Webber Academy to the CA; application for leave to appeal from the 2018 CA decision (<a href="https://canlii.ca/t/hsbvx">Webber Academy Foundation v. Alberta (Human Rights Commission)</a> [CA 1]) to the SCC by the AHRC; denial of leave to appeal on February 28, 2019 by the SCC No. 38273 <a href="https://decisions.scc-csc.ca/scc-csc/scc-l-csc-a/en/item/17571/index.do">(Alberta Human Rights Commission (Director), et al. v. Webber Academy Foundation</a>).
Round Two: rehearing by the AHRC; an appeal from the AHRC’s 2020 decision (<a href="https://canlii.ca/t/j9400">Amir and Siddique v. Webber Academy Foundation</a> [AHRC 2]) by Webber Academy to the QB; an appeal by Webber Academy to the CA of the QB’s 2021 decision (<a href="https://canlii.ca/t/jh300">Webber Academy Foundation v. Alberta (Human Rights Commission)</a> [QB 2]); application for leave to appeal by Webber Academy of the CA’s 2023 decision (<a href="https://canlii.ca/t/jxppc">Webber Academy Foundation v. Alberta (Human Rights Commission)</a> [CA 2]); denial of leave to appeal on March 21, 2024 by the SCC No. 40907 (<a href="https://decisions.scc-csc.ca/scc-csc/scc-l-csc-a/en/item/20341/index.do">Webber Academy Foundation v. Alberta Human Rights Commission (Director), et al.</a>).
This case illustrates how the prohibition against religious discrimination under human rights legislation and the Canadian Charter of Rights and Freedoms (“the Charter”) applies differently to freedom from religion compared to protection for religious belief. And in that regard, Webber Academy illustrates that seeking to maintain a true non-denominational or secular identity will be almost impossible in the face of the guarantees given to religious freedom.
Although the second Court of Appeal decision is the only one that really matters, I am also referring to other decisions in this thread to a give a fuller sense of how the case led almost inevitably to the final conclusion against Webber Academy’s non-denominational identity freedom from religion claim.
BACKGROUND
As described in the first AHRC decision, “Webber Academy was founded in 1997 and has declared its mandate to be a high quality, non-denominational, co-educational, university preparatory, accredited private school.” It enrolled students from kindergarten to grade 12. (AHRC 1, para. 6; my emphasis) 
Dr. Patrick Webber, the founder and president of Webber Academy, was the school’s spokesperson and, it appears, the real decision-maker, although there was also a board of directors. Dianne Lever, the director of admissions and Barbara Webber, vice-president of administration, were also involved “communicating” with the parents about praying on school grounds. 
The school provided the kind of facilities one would expect in a school, including classrooms and other academic space, washrooms and places to eat, as well as an infirmary and rooms where students experiencing anxiety could do their homework or spend some quiet time. All students had access to these spaces. (AHRC 2, paras. 83, 85) Justice Poelman, in the first QB decision, described these facilities as “educational programs and other supportive services and facilities incidental to those programs” (QB 1, para. 44).
The school had a uniform dress code, which prohibited headwear, but its handbook explained that “head coverings which have a cultural or religious significance are permitted and may be worn” (QB 1, para. 77). It did not provide any religious facilities or undertake any religious activities, although it did put up religiously ambivalent Christmas tree in its lobby every year.
Although Webber Academy described itself as non-denominational in its materials, and although it permitted some deviations from its dress code and clean-shaven requirements, it did not include a statement about its policy on praying or generally on recognition of religious practices. The recognized practices might be characterized as “passive” religious (or cultural) expression. Nowhere, however, was there reference to overt praying. The lack of an express policy on overt praying meant that staff, teachers and most administrators did not actually know what position Webber Academy took on it and they therefore tended to follow their own inclinations when faced with the issue.
In November 2011, Farhat Amir and Dr. Shabnam Nazar, parents of two teenage boys, Sarmad Amir and Naman Siddique, respectively, applied to Webber Academy. As Sunni Muslims, the teenagers were obligated to pray five times a day. Two of the prayer times coincided with the school day. A prayer consists of two sequences of bowing, kneeling and standing, a process that takes between five and ten minutes (throughout, five minutes seems to have been the agreed upon time required, although the second CA decision refers to “5 to 8 minutes” [CA 2, para. 43]). Those praying did so quietly so as not to be heard by those around them.
The parents anticipated that the boys would be able to engage in prayers when at school; they said this had been addressed in a pre-enrollment meeting and subsequently during a tour of the school. Indeed, when school began, staff and teachers helped the students find places they could pray. Ms Lever was somewhat ambiguous when the issue was raised with her. Ms Webber thought it was enough to say the school was non-denominational to know prayer was not allowed (AHRC 1, para. 93). 
However, when Dr. Webber discovered the students were praying, he prohibited it, offering the students time out from school to go off school grounds or to pray without the actions involved. He and the parents met to resolve the issue; when that failed, the parents made a complaint under section 4 of the AHRA to the AHRC of denial of services on the basis of religious belief. 
Praying off the property meant adverse consequences for the students from weather, feelings of humiliation, among others (AHRC 1, para. 34). Given subsequent events, Dr. Webber advised that since the parents were ignoring the rules, their sons would not be accepted for the next year. 
THE ISSUES ADDRESSED IN THE HUMAN RIGHTS CASE
The circumstances in the case raise several interrelated issues:
<blockquote>1. What does “non-denominational” mean and what is its significance? 2. Did the parents/students’ claim fall under the AHRA? 3. What had the parents requested: dedicated or undedicated space to pray? 4. As a non-denominational school, was Webber Academy’s prohibition of overt praying on school property discriminatory and if it was, was it justified?</blockquote>
Together the answers to these questions raise the larger question of whether it is possible to be a non-denominational or secular institution that recognizes multicultural practices and inclusivity but denies overt religious expression?

<ul>1. What does “non-denominational” mean and what is its significance?</ul>
At the heart of this case is what “non-denominational” means and whether it is a meaningful concept. What kind of activities may effectively result in “losing” the status of being non-denominational?
Dr. Webber defined “non-denominational” as follows:
<blockquote>A “Non-denominational”, in my term, in terms of a non-denominational school is providing students with — with an academic atmosphere that does not include a religious practice. And non-denominational is — is a place where students from any religious background is [sic] welcome to be a part of our — of our academic studies, and it’s — it’s a place where you don’t have students conform to any one belief or prefer one belief over another. (AHRC 1, para. 96)</blockquote>
He was of the view that “’secular and non-denominational essentially mean the same thing: non-denominational means not being affiliated with any particular religion and secular means having no connection with any religion’” (CA 2, para. 13, citing AHRC 2, para 116). Dr. Webber had testified that the goal was to have a school that was “religious neutral” where there was no overt prayer and no religious activities on school property (AHRC 1, para. 87).
In the appeal from the tribunal’s first decision, Poelman J. also indicated Dr. Webber’s understanding of “non-denominational”:
<blockquote>It is a non-denominational school, fostering an atmosphere where those of many faiths and cultures would feel equally at home. This meant that Webber Academy “is not a place where religious activities are to be carried out by members of any religious group on campus.” (QB, para. 6; quoting Dr. Webber)</blockquote>
However, all the adjudicators essentially agreed with the first tribunal’s preferred definition:
<blockquote>The dictionary definition of non-denominational introduced by the director [of the AHRC] is: “not restricted to or associated with a religious denomination.” Principal Schneider of Rundle College captured non-denominational as follows: “(O)ur view of that is that we are not promoting or specifically affiliated with any denomination, and in that sense, we are non-denominational.” </blockquote>
(Rundle College is also a private, non-denominational preparatory school. The students went there after they were not allowed to register at Webber Academy in their second year.)
Dr. Webber believed that if the school were required to permit the prayers on school property, it would be tantamount to asserting that religious observance belongs in a school setting. The first tribunal rejected this view, stating instead,
<blockquote>the Students [sic] requests were not aimed at establishing that their religion, or any religion, “belonged” in a school setting. Rather, in order to fulfill their religion, they were required to pray at designated times. The Students’ physical location was incidental to their religious beliefs. The Students’ requests of Webber Academy were purely a function of being at school during their mandatory prayer times. (AHRC 1, para. 99)</blockquote>
As for state neutrality with respect to religion, which the human rights legislation was meant to reflect, the second tribunal stated,
<blockquote>[T]he AHRA . . . by prohibiting discrimination on the basis of religion and by requiring the accommodation of religious differences, does not in any way promote or discourage one belief or non-belief at the expense of any other. The state does not seek to require Webber Academy to allow religious activities on its campus regardless of the circumstances. (AHRC 2, para. 208; my emphasis)</blockquote>
At the second tribunal, Webber Academy raised its own religious freedom, that is, its right of freedom from religion (AHRC 2, para. 156). The tribunal found that “this is a belief and practice that has a nexus with conscience and religion” (AHRC 2, para. 204).
The school maintained that the AHRA requirement that it allow the prayers contravened its right to freedom from religion under section 2(a) of the Charter. For the first time before the first CA panel, it claimed that it had a right under the Charter to “religious and secular neutrality” and the right of the educational community to a “secular, non-denominational education” (CA 1, para. 34). Webber Academy submitted that “[a]s a private school, Webber Academy has a Charter protected right to offer secular, non-denominational education consistent with the convictions of the parents who choose to send their children to Webber Academy.” (CA 1, para. 38)
The school also argued that to the extent it permits religious prayer and other religious acts in secular schools, the AHRA is inconsistent with the Charter. (A summary of Webber Academy’s Charter arguments in its Notice of Constitutional Question can be found at CA 1, paragraphs 33-39.)
The second CA concluded that it was possible to have religious practices on the school site without interfering with its non-denominational identity because doing so did not mean the school adopted those practices, the curriculum was not affected and the practices did not impinge on parents’ or teachers’ views. 

<ul>2. Did the parents/students’ claim fall under the AHRA?</ul>

Under section 4 of the AHRA,
<blockquote>
No person shall 
<ul>(a) deny to any person or class of persons any goods, services, accommodation or facilities that are customarily available to the public, or</ul>
<ul>(b) discriminate against any person or class of persons with respect to any goods, services, accommodation or facilities that are customarily available to the public, 
because of the . . . religious beliefs . . . of that person or class of persons or of any other person or class of persons.</ul>
</blockquote>
The parents’ human rights complaint was reliant on determining the fundamental question of what “services” were “customarily available” at Webber Academy and to whom (that is, who are “the public”?). The latter was easily determined: the public was the student body as the parties agreed (CA 2, para. 33). However, there was a dispute about the nature of the services Webber Academy had been making available to the students. 
Webber Academy argued the service at issue is “prayer space”, which was not customarily available to the student body. All adjudicators rejected this position. 
The second tribunal said, “if all students, without distinction, have a right to access quiet, private spaces to attend to bodily functions or to remedy feelings of anxiety, those spaces are customarily available to the public, the student body.” Furthermore,
<blockquote>[s]ome of these facilities are specifically related to educational programming and others are related to the needs of the students who are required to be on campus for the entire school day. These services include places to eat, washrooms, an infirmary and places for those who have anxiety and need a quiet place to do homework. (AHRC 2, para. 83)</blockquote>
Justice Poelman described “the services and facilities Webber Academy customarily made available to its public [as] non-denominational educational programs and other supportive services and facilities incidental to those programs”. (ABQB 1, para. 44) The second CA decision defined the services to include “quiet, private spaces”, which is what the students were seeking to perform their prayers (CA 2, para. 42). 
Of course, Webber Academy cannot discriminate in providing or allowing access to these facilities on a basis prohibited under the AHRA. 
Justice Poelman stated that “to define the services and facilities addressed in section 4 of the Act as proposed by Webber Academy – that is, to define them as identical to the specific “service” requested by the students –would make the provision almost meaningless” (QB 1, para. 46). 
Webber Academy had maintained that the students had access to education, which was the service it provided. However, Poelman J. found that they did not have meaningful access to education if they could not pray in a manner consistent with their beliefs and they were being discriminated against in comparison to students who were able to express their religious beliefs in other ways (QB 1, para. 64).
It is not clear that Poelman J.’s analysis is correct, however. One can define “the services customarily available” as the classrooms, washrooms, quiet rooms and so on, all of which have a particular purpose; in other words, the purpose is part of the service. The question then is whether overt praying is one of those purposes. Justice Poelman gives as an illustration a school denying wheelchair access to facilities because it had never done so. But use of a wheelchair is a means by which the services are made available. Praying is not a means by which the services at Webber Academy are made available.
The school argued that religious observance was not the same as washroom or study use and there had never been space for religious observance. Justice Neufeld on appeal from the second tribunal to the QB held, “At best, the Academy has an arguable position to advance for the proposition that prayer space is distinguishable from space for attendance to other personal needs, but an argument is not enough to satisfy the appellate standard of review.“ (QB 2, para. 39) This was the only recognition that Webber Academy’s position had any merit at all among all the adjudicators.
On appeal from Neufeld J.’s decision, Webber Academy continued to argue that the tribunal should have determined the service at issue (praying on campus) and then whether it was customarily available to the public (the student body). If it had done so, the school argued, it would have concluded it did not have jurisdiction to hear the complaint. 
The second Court of Appeal panel held otherwise, doing a bit of fancy footwork in considering this question. It did not accept Webber Academy’s position that it had never provided space for prayer on school property because “it is uncontroverted that the Students were able to perform prayers for more than two weeks when they first started attending the school” with the help of teachers and staff (CA 2, para. 44). While this is true, the teachers were not aware prayer was not allowed without Dr. Webber’s approval, a point the CA did not address.
In any event, only after two weeks were the students actually prohibited from using space for prayer (CA 2, para. 44). In addition, Dr. Webber would allow them to use space for prayer “provided they prayed silently without moving their limbs so no observer could know that prayer was occurring” (CA 2, para. 45). Thus the second CA concluded,
<blockquote>. . . it seems that Dr. Webber’s objection was based specifically on the manner of the Students’ prayers because the prayers involved the overt, physical movements of standing, kneeling and bowing. The adverse impact was not because of prayer or religion per se, but because of the type of prayer required by the Students’ religion. (CA 2, para. 45)</blockquote>
Importantly, from identifying generic educational facilities and particular facilities that Webber Academy provided prior to the request to provide space for prayer, the adjudicators elided (non-dedicated) prayer space with these other facilities: space for religious observance was akin to the other places identified as “services available to the public”.
Therefore, the tribunal had jurisdiction to hear the complaint.

<ul>3. What had the parents requested: dedicated or undedicated space to pray?</ul>

The school maintained that the parents had requested prayer space (this was taken to mean “dedicated” space), while the parents stated that they had requested only that their children be allowed to pray in a space “sufficiently large to allow the children to bow, kneel and stand safely” (AHRC 1, para. 15). The AHRC accepted the parents’ characterization of what they had requested. Justice Poelman found that there was evidence to support the tribunal’s finding that they were not seeking “dedicated prayer space” and that, indeed, “the students were willing to perform their prayers in any private place, such as an unused room or behind a tree outside” (QB 1, para. 38).
In its first decision, the CA noted both the tribunal and Poelman J. had proceeded on the basis that the complainants had not been requesting “prayer space”. However, the students did require space to perform the various actions constituting the prayer, even if this was not “dedicated” space. The Court stated:
<blockquote>Neither the Tribunal nor the chambers judge explained the significance to their analysis if the request was for prayer space. Clearly, the students required space to pray and Webber Academy was being asked to provide space, whether dedicated or not. The Tribunal’s conclusion appears at best confusing, and without further elaboration of its reasons, the conclusion is not reasonable. (CA 1, para. 56)</blockquote>
Because of this and another error relating to contradictory testimony about whether Ms Lever told the parents space was available, both of which Poelman J. had been prepared to overlook because they did not change the final outcome, the CA sent the case back to the AHRC for a rehearing (CA 1, para. 63).
The parties submitted an agreed statement of facts at the rehearing (AHRC 2, para. 15). However, the issue of whether the space requested was dedicated space or any space and what the school’s administrators told the students’ mothers and the students on visits to the school remained in dispute. One administrator testified that the term used was “reflection”, not “prayer”, and others indicated that while the matter of prayer was raised, the parents were told that the school was non-denominational and prayer was not permitted. The parents stated they used “prayer” but not “dedicated space” and that the director of admissions did not say that was not acceptable.
Tribunal 2 found, “It is clear that the request was for a place to pray. The request was for a nominal space, a quiet place where the students would be able to stand, kneel, bow and engage in silent recitation.” (AHRC 2, para. 81)
Whatever the initial dispute, however, subsequently, Dr. Nazar, after confirming with religious authorities that there was not an acceptable alternative to the prayers being undertaken as described, wrote to Dr. Webber making a formal request for accommodation in the form of “a nominal space being provided to perform prayers and that the students be excused from class for five minutes per prayer when these prayers coincide with their scheduled classes.” (AHRC 1, para. 36) By “nominal space”, Dr. Nazar did not refer to dedicated prayer space, but anywhere it was possible to perform the prayers, such as the corner of a classroom or office (AHRC, para. 36).
Nevertheless, regardless of whether the parents asked for “prayer space” or “dedicated prayer space”, Dr. Webber was opposed, maintaining that Webber Academy never provided prayer space. The second CA held this was not the case because the students had prayed for two weeks before Dr. Webber discovered they were doing so and prohibited it. It also concluded that the prohibition was discriminatory, not because of religion in itself “but because of the type of prayer required by the Students’ religion”, since Dr. Webber would have allowed praying on campus “provided [the students] silently without moving their limbs so no observer could know that prayer was occurring” (CA 2, para. 45). These actions were the feature distinguishing the students’ overt praying from the passive religious (or cultural) symbolism the school permitted, a distinction the adjudicators glossed over for the most part.
In short, Dr. Webber would have (it appears) allowed prayer if, like the religious symbols already permitted, it was “covert”. Even though the Sunni prayers were performed as innocuously as possible, they were not covert. 

<ul>4. As a non-denominational school, is Webber Academy’s prohibition of overt praying on school property discriminatory and if so, is it justified?</ul>
 
Once praying, including overt praying, was held to be a “customarily available service” for the student body, it followed that Webber Academy discriminated against the students by not allowing them to perform their prayers on school property. The onus thus fell on the school to establish it was justified in its refusal of the service, that is, the prayer, under section 11 of the AHRA, which provides,
<blockquote>A contravention of this Act shall be deemed not to have occurred if the person who is alleged to have contravened the Act shows that the alleged contravention was reasonable and justifiable in the circumstances.</blockquote>
None of the adjudicators considered allowing the prayers to be an undue hardship for Webber Academy whose only reason for not permitting them related to its identity as non-denominational. There were no cost ramifications or inconveniences for anyone else, the students did not seek curriculum changes and nothing really changed in how Webber Academy operated. Indeed, people did not notice that the students were praying the first two weeks. The second tribunal concluded there was no evidence about how overt praying compromised this identity (AHRC 2, para. 142).
In its second decision, the CA noted,
<blockquote>We would observe that Webber Academy does not appeal the Tribunal’s finding that it prima facially discriminated against the Students by not permitting them to pray on campus. Nor does Webber Academy appeal the Tribunal’s conclusion that it had a duty to accommodate the Students because Webber Academy did not establish that it would suffer undue hardship by accommodating them. (CA 2, para. 26)</blockquote>
Webber Academy had argued that the proper test for its Charter claim was whether its (non-)religious belief was interfered with in a manner that was more than trivial or insubstantial (a Charter test), while the tribunal had applied an undue hardship test (a human rights test). The Court of Appeal said the evidence supported the same conclusion under both tests (CA 2, para. 61).
The second tribunal had concluded that Webber Academy had “a sincere belief respecting religion”. But because the school did not prohibit all forms of religious expression and its witnesses all testified that the praying did not interfere with their religious beliefs or those of their children, the CA at the second hearing concluded that
<blockquote>when the Tribunal conducted the Charter analysis and concluded that Webber Academy did not suffer any undue hardship, it is apparent that the Tribunal was, in effect, finding that Webber Academy’s freedom of religion was not interfered with in a manner that was more than trivial or insubstantial by accommodating the Students’ need to pray on campus. (ABCA 2, para. 61)</blockquote>
The CA observed, “Webber Academy’s non-denominational policy is not affected by providing the Students with access to quiet, private space to pray. In our view, it cannot reasonably be suggested that Webber Academy is endorsing any religion or religious practice, and should not be seen to be doing so, simply by providing such accommodation.” (CA 2, para. 66)
IS IT POSSIBLE TO BE A NON-DENOMINATIONAL OR SECULAR INSTITUTION THAT RECOGNIZES MULTICULTURAL PRACTICES AND INCLUSIVITY BUT DENIES OVERT RELIGIOUS EXPRESSION?
There is no doubt that to some extent the reasons Webber Academy gave to the parents for refusing to let the students pray reflected an outmoded way of viewing things. For example, according to Dr. Nazar, Dr. Webber (presumably) stated during a meeting with the parents and others, “While quiet meditation or other non-descript prayer may be permitted, prayer which requires conspicuous ‘bowing’ and/or ‘kneeling’ is too obvious and may make other students uncomfortable (AHRC 1, para. 36; my emphasis). He apparently also “suggested the Students could pray quietly in their head or quickly make a cross where no one is aware of the prayer and this would be acceptable” (AHRC 1, para. 33).
One of the disadvantages for the school was the lack of a written policy addressing prayer in the school. Rather, the situation was dealt with on an ad hoc basis and by Dr. Webber writing to the parents, explaining the school had never said it had prayer space and that it had received a legal opinion that it did not have to accommodate the students, since it did not accommodate other religious practices: as “a non-denominational school . . . this is an integral part of its character and it is legally entitled to remain so” (AHRC 1, para. 37).
Justice Neufeld pointed out that there are many schools that establish policies or mandates that exclude others: this is the nature of a pluralist society. However, it is important that the mandate be clearly established:
<blockquote>[T]his is simply good governance. The long –and no doubt expensive – history of litigation in this case is demonstrative of that. Clear and early communication of school policy is also fundamentally fair to prospective and existing students and their families. It is a worthwhile goal in itself. (QB 2, para. 69)</blockquote>
Webber Academy itself had also opened the door by allowing the wearing of turbans and other religious-related headwear. As Poelman J. observed,
<blockquote>Webber Academy, to its credit, adopted a public policy of welcoming young people of many faiths and cultures, and to exemplify its policy, published photographs of students with turbans and facial hair even though these practices contravened usual school policies.
For some reason, it drew the line at Sunni prayer rituals, conducted in private, in a place that was convenient to the school and the students from time to time. Its policy thus discriminated against the belief of the complainant Sunni Muslim students as compared, for example, to students who overtly averred their religious affiliation by forms of dress and grooming. There was no demonstrated hardship, let alone undue hardship, motivating this policy. (QB 1, paras. 122-123)</blockquote>
(Although it may not have mattered, the praying was not necessarily private, but could occur in a corner of the library, for example.)
Webber Academy had made a deliberate decision to allow exemptions from the regular uniform policy (or they were part of the policy set out in the handbook) and therefore it is noteworthy that their information said nothing about praying overtly. The CA in its second decision rejected Webber Academy’s effort to distinguish (for example) the wearing of religious headwear and overt praying:
<blockquote>We accept that Webber Academy wishes to establish a campus welcoming of all faiths, believing that religious practice and instruction should be addressed by parents and caregivers of students, outside of the school environment. However, the evidence establishes that Webber Academy’s “culture” currently accommodates religious differences amongst the student body by allowing exemptions to the dress code for Students who wear religious head coverings and facial hair, and allowing prayer provided that the prayer is silent and not overt. With regards to the dress code, Dr. Webber considered these accommodations as being reasonable because the head wear and facial hair is a demonstration of who that student is as a person. We consider such accommodations to be consistent with the goal of Webber Academy to be welcoming of all faiths and cultures.
Religion, for some, is also a demonstration of who they are as a person. Here, one of the Students testified that telling him to stop praying was equivalent to telling him to stop breathing. And both Students provided testimony about how fundamentally important their prayers were to them as people. We consider the provision of a quiet, private space for the Students to pray to be an analogous accommodation [to the passive religious symbols]. (CA 2, paras. 77-78)</blockquote>
Even the Christmas tree, admittedly associated with a Christian season even when placed in the Eaton Centre, but which is in itself a secular object, comes back to bite the school in the second CA decision. Dr. Webber had described the tree as a “Canadian cultural symbol”, not a religious symbol. There had been rare complaints about the tree, but the description of the tree as not religious was accepted. The CA did not accept it, however, because “[s]imply because the [Webber Academy] considers a Christmas tree to have no religious significance does not mean that others hold the same view . . . .” (CA 2, para. 79).
Generally, consideration of religious belief does not entail seeking the opinion of others: “claimants seeking to invoke freedom of religion should not need to prove the objective validity of their beliefs in that their beliefs are objectively recognized as valid by other members of the same religion” or, presumably as valid by members of other religions (<a href="https://canlii.ca/t/1hddh">Amselem</a>, para. 43). 
Would it have made any difference had the school not permitted turbans or hijabs, for example? After all, Poelman J. referred to a school that had been found to have discriminated under human rights legislation because it justified refusing a Sikh student the right to wear a turban on the basis that it was not consistent with its uniform policy; it did not matter that there were other schools the student could attend (QB 1, para. 121). Yet surely a uniform policy does not rise to the level of a claim to a secular – non-religious – identity.
For the most part, the adjudicators simply did not see non-denominational identity — non-religious belief — as worthy of the same respect as religious belief or affiliation or religious practice. Justice Neufeld was a bit of an outlier in this regard. He said, although the views of the witnesses for Webber Academy did not establish that their religion would be interfered with by allowing the prayers, “[i]t does not follow, however, that the educational philosophy underlying a private school, including its position on the practice of religion within the school, is not relevant or worthy of consideration when an assessment is made under s. 11 of the AHRA as to whether a discriminatory policy is reasonable and justified in the circumstances.” (QB 2, para. 66) Nevertheless, he reached the same conclusion as the other adjudicators.
Given the high reputation of Webber Academy, it is not entirely unreasonable that its concern that the school would attract other applicants who wanted to engage in their overt religious practices during the school day. The first tribunal did acknowledge that “if a very large percentage of a student body sought to fulfill religious beliefs in a very visible way, that may impact a school’s non-denominational identity,” but that is not the case here (AHRC 1, para. 103) The second CA had little time for this “floodgates” argument, referring to it as a concern that the school “will be inundated by a magnitude of similar requests now or in the future”, holding it is not relevant to accommodation for the two students now (CA 2, para. 82). (It is also possible that given the school’s response to the current request and Dr. Webber’s apparent lack of understanding of Sunni prayers, parents would be wary of applying to the school if their children would need to express overt religious beliefs.)
For the adjudicators, there was no difference between the provision of washrooms and the provision of space for anxious students to spend some quiet time and the provision (albeit unallocated) for overt praying. They also saw no difference between allowing students to wear a turban or hijab and putting up an ambivalent Christmas tree, on the one hand, and clearly religious overt praying, on the other. As the second tribunal suggested, “permitting grace before a meal” would also be something that would not interfere with a non-denominational environment (although it is not clear whether this would be undertaken by a student on their own or by the school, it is obviously just “natural” that grace would be acceptable) (AHRC 2, para. 207). lt also stated:
<blockquote>In this case, the legislation requires the respondent to accommodate the complainant’s request for a quiet, private place to pray in the same way it provides such places for persons with anxiety and in the same way that it allows exceptions to its dress code for religious and cultural reasons. (AHRC 2, para. 208)</blockquote>
These determinations were fatal to Webber Academy’s claim that being a non-denominational school meant there should be no overt praying on school property.
The first tribunal did “not accept that being a non-denominational school can reasonably be interpreted as meaning “no prayer or religious practice will be allowed.” (AHRC 1, para. 98) The second CA panel reinforced this position: “Webber Academy’s non-denominational policy is not affected by providing the Students with access to quiet, private space to pray” (CA 2, para. 66).
The answer to the question of whether it is possible to be a non-denominational or secular institution that recognizes multicultural practices and inclusivity but denies overt religious expression is probably it is not possible. As long as space for prayers are equated with the availability of non-religious services, it will follow that accommodation for overt prayers, albeit quiet, is required under human rights legislation. Similarly, once a school allows the wearing of passive religious symbols, which will in any event likely be required under human rights legislation, it will have forfeited any claim to limit its recognition of religion within its own practice of non-denominational identity.
CONCLUSION
Would it have been so terrible had Webber Academy simply allowed the students to pray in relatively unobtrusive places? If it had developed a policy that clearly laid out the circumstances of prayer and other overt religious practices? If it had compromised its own sense of non-religious belief, given what little was being asked of it? 
Webber Academy was, of course, expected to compromise its own beliefs because, unless an institution is the government of Quebec, its secular non-religious beliefs are less protected in the broad sense. It or its students are not forced to perform overt prayers (indeed, compulsory prayers in public schools are no longer allowed), but they are forced to accept the performance of acts inconsistent with secularism.
Certainly, in this case, Dr. Webber’s stubbornness and lack of sensitivity contrasted sharply with the picture painted of the adverse impact on the students. In the context of whether the school would suffer undue hardship if it were required to accommodate the students, the first tribunal stated, “[t]he respondent’s standard of ‘no overt prayer or religious practice on campus’ essentially asks these Students to leave their religion ‘at the door’ while other students who do not have religious obligations during school hours are not so required.” (AHRC 1, para. 105)
The first tribunal related that “Dr. Nazar said that her son felt he had to choose religion over school”. And the tribunal, as well as the other adjudicators, described the impact on the students when they had to leave the property: Naman Siddique testified (in the tribunal’s words), “It was winter and so they would often come back to the school really wet and cold. If there was a blizzard outside or if it was too cold to pray Mr. Siddique testified that he and Mr. Amir would find a nook or cranny and pray. He felt that this was humiliating.” (AHRC 1, para. 34)
The reality is, under human rights legislation there is almost no way that a school can maintain a secular identity. Despite the adjudicators’ view that the prayers do not interfere with that identity, do not change the school into a non-denominational institution, they do change the atmosphere from one that does not recognize religious practice as part of its own culture. Furthermore, a school that seeks to present a secular face is almost forced to deny what is the multicultural reality of its students as represented by passive symbols that appear throughout our society if it does not want to be caught in a web of its own making and appear to be inconsistent. Such a denial is neither possible nor desirable, however.
Webber Academy illustrates that the law does not acknowledge that secularism or a non-denominational identity is more complex than allowed by most of the adjudicators in the case. Or, perhaps, the opposite is true: that it is as simple as the law allows religious expression to be: unlike religious adherents and their faith, however, believers in secularism are not free to define their own beliefs and practices. 
The post <a href="https://www.slaw.ca/2024/04/18/the-lack-of-protection-for-non-denominational-identity-the-webber-academy-case/">The Lack of Protection for Non-Denominational Identity: The Webber Academy Case</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/18/the-lack-of-protection-for-non-denominational-identity-the-webber-academy-case/feed/</wfw:commentRss>
<slash:comments>0</slash:comments>
</item>
<item>
<title>Missing Discussions at Center of Union COVID Dispute</title>
<link>https://www.slaw.ca/2024/04/18/missing-discussions-at-center-of-union-covid-dispute/</link>
<comments>https://www.slaw.ca/2024/04/18/missing-discussions-at-center-of-union-covid-dispute/#respond</comments>
<dc:creator><![CDATA[Marie-Yosie Saint-Cyr, First Reference Managing Editor]]></dc:creator>
<pubDate>Thu, 18 Apr 2024 13:59:13 +0000</pubDate>
<category><![CDATA[Case Comment]]></category>
<category><![CDATA[Substantive Law]]></category>
<category><![CDATA[Substantive Law: Judicial Decisions]]></category>
<category><![CDATA[British Columbia Labour Relations Board]]></category>
<category><![CDATA[British Columbia Labour Relations Code]]></category>
<category><![CDATA[Collective agreement]]></category>
<category><![CDATA[Judicial review]]></category>
<category><![CDATA[Labour Law]]></category>
<category><![CDATA[Mandatory vaccine policy]]></category>
<category><![CDATA[Terms and conditions of employment]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106763</guid>
<description><![CDATA[Written by Daniel Standing, LL.B., Content Editor, First Reference Inc.
The Supreme Court of British Columbia rendered a decision (<a href="https://www.canlii.org/en/bc/bcsc/doc/2024/2024bcsc55/2024bcsc55.html" rel="noopener" target="_blank">2024 BCSC 55 (CanLII)</a>) on judicial review which looked at the employer’s choice to implement a COVID-19 vaccination policy, and whether, under the Labour Relations Code, it was obligated to enter into discussions with the union first. The case provides employers with insight into the difficulty of overturning a tribunal’s decision.
Background
The workplace was a provincially run rapid transit company. The Court considered a union’s petition for judicial review of a decision by the British Columbia Labour . . . <a href="https://www.slaw.ca/2024/04/18/missing-discussions-at-center-of-union-covid-dispute/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/18/missing-discussions-at-center-of-union-covid-dispute/">Missing Discussions at Center of Union COVID Dispute</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<h3>Written by Daniel Standing, LL.B., Content Editor, First Reference Inc.</h3>
The Supreme Court of British Columbia rendered a decision (<a href="https://www.canlii.org/en/bc/bcsc/doc/2024/2024bcsc55/2024bcsc55.html" rel="noopener" target="_blank">2024 BCSC 55 (CanLII)</a>) on judicial review which looked at the employer’s choice to implement a COVID-19 vaccination policy, and whether, under the Labour Relations Code, it was obligated to enter into discussions with the union first. The case provides employers with insight into the difficulty of overturning a tribunal’s decision.
<h3>Background</h3>
The workplace was a provincially run rapid transit company. The Court considered a union’s petition for judicial review of a decision by the British Columbia Labour Relations Board regarding the interpretation of s. 54 of the Labour Relations Code in relation to a mandatory vaccination policy implemented by the employer. The dispute centered around whether the policy triggered s. 54 of the LRC, which requires employers to give notice and engage in discussions with the union when introducing measures affecting the terms, conditions, or security of employment of a significant number of employees covered by a collective agreement.
The union argued that the policy affected employment conditions and thus should have triggered s. 54, while the employer contended that the policy was akin to workplace rules and did not require such notice. The original decision by the Board found that s. 54 applied to the policy, but a reconsideration panel later overturned this decision, concluding that the policy did not fall under s. 54.
The Court summarized the arguments of both parties and the original decision, which found that the policy did indeed trigger s. 54 because it required employees to undergo a medical procedure and disclose confidential medical information, leading to organizational changes in the workforce. However, the reconsideration panel, in the majority decision, disagreed and found that the policy was directed toward individual behavior and did not constitute a significant change triggering s. 54. It reasoned that other workplace policies, such as sick leave policies, also require employees to disclose medical information and thus the policy in question was not unique.
In dissent, Associate Chair Matthews interpreted the statute differently, concluding that the policy fell within the class of employer conduct subject to negotiation and thus should have been covered by s. 54.
Overall, the Court reviewed the arguments, the original decision, and the reconsideration decision, ultimately granting deference to the majority decision of the Board, which found that the policy did not trigger s. 54.
<h3>The Court’s decision</h3>
Justice Devlin began the analysis by stating the applicable standard of review was that of patent unreasonableness. In other words, this highly deferential standard permits the original decision to stand unless it is clearly irrational or suffers from reasoning so flawed it affects the decision as a whole. If, on the other hand, a rational line of reasoning could support the conclusion, or if a defect is a minor one, then the decision must be allowed to stand.
With that standard in mind, the Court dismissed the application for judicial review put forward by the union. The Court addressed two main arguments. First, regarding the Board’s reasoning on the application of s. 54, the union claimed the majority’s decision stemmed from a misunderstanding of the original decision. However, the Court found no merit in this assertion, emphasizing that the majority’s analysis was comprehensive and contextually sound.
Second, concerning the statutory interpretation of s. 54, the union argued the majority failed to conduct a meaningful analysis. Despite this, the Court disagreed, stating the majority engaged in a thorough interpretation consistent with legal principles, having considered the legislative history and applicable jurisprudence. Consequently, the Court concluded the majority’s decision was not patently unreasonable and dismissed the union’s application for judicial review without addressing other arguments.
<h3>Key takeaway</h3>
It’s really hard to overturn a decision for being patently unreasonable, particularly when the decision maker lays out their thinking in a way that makes rational sense and aligns with the law. This case shows how parties’ reasonable perspectives may differ, but overturning a tribunal’s decision often takes more than a different point of view.
The post <a href="https://www.slaw.ca/2024/04/18/missing-discussions-at-center-of-union-covid-dispute/">Missing Discussions at Center of Union COVID Dispute</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/18/missing-discussions-at-center-of-union-covid-dispute/feed/</wfw:commentRss>
<slash:comments>0</slash:comments>
</item>
<item>
<title>Thursday Thinkpiece: Internationally-Trained Lawyers Need More Than Just NCA Exams</title>
<link>https://www.slaw.ca/2024/04/18/thursday-thinkpiece-internationally-trained-lawyers-need-more-than-just-nca-exams/</link>
<comments>https://www.slaw.ca/2024/04/18/thursday-thinkpiece-internationally-trained-lawyers-need-more-than-just-nca-exams/#respond</comments>
<dc:creator><![CDATA[Guest Blogger]]></dc:creator>
<pubDate>Thu, 18 Apr 2024 11:00:19 +0000</pubDate>
<category><![CDATA[Legal Publishing]]></category>
<category><![CDATA[Thursday Thinkpiece]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106670</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png">
For those of us raised in Canada and who studied law here, it can be easy to forget that the way we practise law is very… Canadian.
While we’re all aware that there are substantive differences between Canadian law and the law of other jurisdictions, it’s much easier to forget that the practice of law varies just as much from nation to nation. There’s more than one way to do almost anything, and the Canadian legal system is founded on a very specific set of choices, norms, and traditions.
Upon arriving in Canada from her native Australia, and despite her . . . <a href="https://www.slaw.ca/2024/04/18/thursday-thinkpiece-internationally-trained-lawyers-need-more-than-just-nca-exams/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/18/thursday-thinkpiece-internationally-trained-lawyers-need-more-than-just-nca-exams/">Thursday Thinkpiece: Internationally-Trained Lawyers Need More Than Just NCA Exams</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"> For those of us raised in Canada and who studied law here, it can be easy to forget that the way we practise law is very… Canadian.
While we’re all aware that there are substantive differences between Canadian law and the law of other jurisdictions, it’s much easier to forget that the practice of law varies just as much from nation to nation. There’s more than one way to do almost anything, and the Canadian legal system is founded on a very specific set of choices, norms, and traditions.
Upon arriving in Canada from her native Australia, and despite her background as an academic from another common law system, <a href="https://www.linkedin.com/in/kellinde-wrightson-b448a9bb/?originalSubdomain=ca">Dr. Kellinde Wrightson</a> – now Executive Director of the <a href="https://law.ucalgary.ca/future-students/post-jdllb-certificate-programs/foreign-trained-lawyers-program?utm_source=google&utm_medium=cpc&utm_campaign=UCalgary+-+Law+School+-+FTLP+-+Google+-+Search+-+Generic+-+Direct&gad_source=1&gclid=CjwKCAjw_LOwBhBFEiwAmSEQAQFF-Lmab_NI7Ql0v8GCrChe0Sdwpr6d4XmFRYrpwWm3TjNDWriV4BoCr4AQAvD_BwE">Foreign Trained Lawyers Program</a> at the Faculty of Law, University of Calgary – felt a surprising measure of culture shock. With the help of mentors and colleagues within the Alberta legal community, she found her feet; but she wasn’t willing to simply forget the barriers and biases she observed along the way. Now an associate Professor of Law, Wrightson decided to write the very text she would have found helpful during her own adjustment period.
As her publisher, when we first agreed to publish <a href="https://www.emond.ca/Store/Books/Decoding-Canadian-Legal-Research,-Writing,-and-Con?r=%2fDivision%2fLaw-School%3ftype%3d%26program%3d%26subject%3d%26metadata%3d1">Decoding Canadian Legal Research, Writing, and Conventions</a>, we thought of it as merely a supplement to our existing legal research text The Comprehensive Guide to Legal Research, Writing & Analysis. But as we became more familiar with the manuscript, we realized we’d be publishing something much more important. Decoding would grow, before our eyes, into a code-breaking guide to the eccentricities of the Canadian legal system as seen through the eyes of a recent outsider.
How is our system eccentric? Well, for starters, we have articling, unknown in most of the legal world. We have the concept of parallel systems of law and equity. Our lawyers must pass both a barrister and a solicitor exam to be called to the bar. But these are just some of the well-known “big things”. To get a sense of the mysterious small things, imagine this: you’ve been a lawyer in India for decades, but you wake up one morning as an associate in a Canadian law firm. Your first meeting of the workday is a Zoom gathering of your county law association, and it starts with someone reciting an Indigenous land acknowledgment. The implications make your head spin, but no time to think about all that – it’s off to court to set a date for a trial. You scramble into your robes and rush to the courtroom – where nobody is robed (but will be, come afternoon, when you return in your street clothes). Then it’s back to the office to draft some pleadings which will be dropped right back on your desk, with half of the content – the best parts! – crossed out.
The most unlikely part of this story, of course, is the part about waking up as an associate in a Canadian law firm. THAT doesn’t just happen. Instead there are years spent requalifying, competing with local graduates for opportunities, and often despite years of practice experience, fighting a continual battle to defend your credentials.
Internationally-trained lawyers face huge obstacles in their quest to earn the right to practise here. It’s on all of us to do what we can to improve the welcome that we extend to them. By demystifying critical aspects of the system that most of us take for granted, Decoding Canadian Legal Research, Writing, and Conventions is Dr. Wrightson’s gift to those who follow her onto our shores. We at Emond Publishing are so proud to be its publisher.
The post <a href="https://www.slaw.ca/2024/04/18/thursday-thinkpiece-internationally-trained-lawyers-need-more-than-just-nca-exams/">Thursday Thinkpiece: Internationally-Trained Lawyers Need More Than Just NCA Exams</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/18/thursday-thinkpiece-internationally-trained-lawyers-need-more-than-just-nca-exams/feed/</wfw:commentRss>
<slash:comments>0</slash:comments>
</item>
<item>
<title>R. v. Bykovets: SCC Recognized Privacy Rights for IP Addresses</title>
<link>https://www.slaw.ca/2024/04/17/r-v-bykovets-scc-recognized-privacy-rights-for-ip-addresses/</link>
<comments>https://www.slaw.ca/2024/04/17/r-v-bykovets-scc-recognized-privacy-rights-for-ip-addresses/#respond</comments>
<dc:creator><![CDATA[Martin Kratz]]></dc:creator>
<pubDate>Wed, 17 Apr 2024 11:00:56 +0000</pubDate>
<category><![CDATA[Intellectual Property]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106624</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png">
In R. v. Spencer<a href="#_ftn1" name="_ftnref1">[1]</a> the Supreme Court of Canada held that a reasonable expectation of privacy attaches to subscriber information — the name, address, and contact information — associated with an individual Internet Protocol (IP) address. In R. v. Bykovets<a href="#_ftn2" name="_ftnref2">[2]</a>, the majority found that reasonable expectation of privacy extends to the numbers which make up an Internet protocol address even though those numbers might be changed at random by an Internet service provider.
The Facts
The Calgary City Police were investigating fraud in online liquor sales and came across a payment processor who processed the suspect transactions. . . . <a href="https://www.slaw.ca/2024/04/17/r-v-bykovets-scc-recognized-privacy-rights-for-ip-addresses/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/17/r-v-bykovets-scc-recognized-privacy-rights-for-ip-addresses/">R. v. Bykovets: SCC Recognized Privacy Rights for IP Addresses</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"> In R. v. Spencer<a href="#_ftn1" name="_ftnref1">[1]</a> the Supreme Court of Canada held that a reasonable expectation of privacy attaches to subscriber information — the name, address, and contact information — associated with an individual Internet Protocol (IP) address. In R. v. Bykovets<a href="#_ftn2" name="_ftnref2">[2]</a>, the majority found that reasonable expectation of privacy extends to the numbers which make up an Internet protocol address even though those numbers might be changed at random by an Internet service provider.
<h2>The Facts</h2>
The Calgary City Police were investigating fraud in online liquor sales and came across a payment processor who processed the suspect transactions. The payment processor volunteered the IP addresses of the suspect transactions which the police used to get a production order from the ISP who managed the account and identified the subscribers.
Police then used the subscriber information to seek and execute search warrants for the appellant’s and his father’s residential addresses. The appellant was arrested, and convicted after a trial, and his convictions were confirmed on appeal.
Before the trial, the appellant alleged that the police’s request to the payment processor violated his right against unreasonable search and seizure under <a href="https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec8_smooth">s. 8</a> of the <a href="https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html">Charter</a>. S. 8 of the Charter guarantees that:
“Everyone has the right to be secure against unreasonable search or seizure.”
The key issue on the hearing at trial was whether the appellant had a reasonable expectation of privacy in his IP address.
Defence counsel submitted a forensic investigator’s expert report providing a technical summary of IP addresses and their functions. The Supreme Court noted:
<blockquote>“The report showed that there are internal and external IP addresses. External IP addresses are used to transfer information across the Internet from one source to another through a modem rented from the ISP. An external IP address is much like the street address of an individual’s house. Without one, a user can neither send nor receive data. A modem or router also assigns an internal IP address to each device on a local network, roughly equivalent to the individual rooms in a house.
IP addresses can also be static or dynamic. Most are dynamic, meaning that the ISP can change a user’s external IP address without notice and for any number of reasons. ISPs keep a record of which subscriber each external IP address was assigned to and for what time period.
A user’s ISP can be determined by entering their IP address into an IP lookup website. The police can then request subscriber information for the assigned IP address from the ISP, as contemplated by Spencer. That said, the expert explained that one may still take steps to determine a user’s identity, without resorting to an ISP, through the information logged on the website of a third-party company. Third-party companies, such as Google or Facebook, can track the external IP addresses of each user who visits their site and log this information to varying degrees. These companies can determine the identity of those individual users based on their Internet activity on their sites .”<a href="#_ftn3" name="_ftnref3">[3]</a></blockquote>
The forensic expert’s view at trial was if a user can have access to the information logged by such third-party companies, “it is not necessary to obtain ISP-held subscriber information in order to accurately identify a particular internet user”.<a href="#_ftn4" name="_ftnref4">[4]</a>
The majority focused on the subject matter of the search to find that was not the random numbers which make up an IP address but rather the information it reveals on the identity of the internet user. In the words of the majority, the IP address is the first “digital breadcrumb”<a href="#_ftn5" name="_ftnref5">[5]</a> and thus the key to unlocking the user’s internet usage. The majority described the approach to privacy protection as normative, as follows:
<blockquote>“… our Court has applied a normative standard to reasonable expectations of privacy. We have defined s. 8 in terms of what privacy should be — in a free, democratic, and open society — balancing the individual’s right to be left alone against the community’s insistence on protection. This normative standard demands we take a broad, functional approach to the subject matter of the search and that we focus on its potential to reveal personal or biographical core information.<a href="#_ftn6" name="_ftnref6">[6]</a></blockquote>
Thus the majority found that “Viewed normatively, an IP address is the key to unlocking a user’s Internet activity and, ultimately, their identity, such that it attracts a reasonable expectation of privacy”.<a href="#_ftn7" name="_ftnref7">[7]</a>
The minority was of the view that “the subject matter of this search was the IP addresses, i.e., the collections of numbers, and the identity of the ISP that is revealed by them.”<a href="#_ftn8" name="_ftnref8">[8]</a> Rather than see the IP address as opening a door to the exposure of personal information the minority focused on the limited information available from an IP address and that judicial authorization would provide the safeguard to the release of subscriber information.
The minority was also concerned that the recognition of an IP address as requiring court sanction would impede police investigation into internet crimes. The majority saw the investigative impact of their decision as minor.
Businesses that collect IP addresses should consider voluntarily sharing them as a warrant may now be needed for criminal investigations. Internal policies regarding the sharing of such data with the state should be updated.
Overall the Bykovets decision reinforces that additional scrutiny should be exercised whenever information is shared on the internet. It is another reason to review an organization’s information collection practices and policies.
_____________________
<a href="#_ftnref1" name="_ftn1">[1]</a> <a href="https://www.canlii.org/en/ca/scc/doc/2014/2014scc43/2014scc43.html">2014 SCC 43</a>, [2014] 2 S.C.R. 212.
<a href="#_ftnref2" name="_ftn2">[2]</a> 2024 SCC 6 (CanLII).
<a href="#_ftnref3" name="_ftn3">[3]</a> See R. v. Bykovets, 2024 SCC 6 at paras 19 – 21.
<a href="#_ftnref4" name="_ftn4">[4]</a> See R. v. Bykovets, 2024 SCC 6 at para 22.
<a href="#_ftnref5" name="_ftn5">[5]</a> See R. v. Bykovets, 2024 SCC 6 at para 69 citing R. v. Jones, <a href="https://www.canlii.org/en/ca/scc/doc/2017/2017scc60/2017scc60.html">2017 SCC 60</a>, [2017] 2 S.C.R. 696 at para. <a href="https://www.canlii.org/en/ca/scc/doc/2017/2017scc60/2017scc60.html#par42">42</a>, citing S. Magotiaux, “Out of Sync: Section 8 and Technological Advancement in Supreme Court Jurisprudence” (2015), 71 S.C.L.R. (2d) 501, at p. 502.
<a href="#_ftnref6" name="_ftn6">[6]</a> See R. v. Bykovets, 2024 SCC 6 at para 7 citing from R. v. Marakah, <a href="https://www.canlii.org/en/ca/scc/doc/2017/2017scc59/2017scc59.html">2017 SCC 59</a>, [2017] 2 S.C.R. 608, at para. <a href="https://www.canlii.org/en/ca/scc/doc/2017/2017scc59/2017scc59.html#par32">32</a>.
<a href="#_ftnref7" name="_ftn7">[7]</a> See R. v. Bykovets, 2024 SCC 6 at para 28.
<a href="#_ftnref8" name="_ftn8">[8]</a> See R. v. Bykovets, 2024 SCC 6 at para 140.
The post <a href="https://www.slaw.ca/2024/04/17/r-v-bykovets-scc-recognized-privacy-rights-for-ip-addresses/">R. v. Bykovets: SCC Recognized Privacy Rights for IP Addresses</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/17/r-v-bykovets-scc-recognized-privacy-rights-for-ip-addresses/feed/</wfw:commentRss>
<slash:comments>0</slash:comments>
</item>
<item>
<title>Sharenthood: Turning Childhood Into Lucrative Content</title>
<link>https://www.slaw.ca/2024/04/16/sharenthood-turning-childhood-into-lucrative-content/</link>
<comments>https://www.slaw.ca/2024/04/16/sharenthood-turning-childhood-into-lucrative-content/#respond</comments>
<dc:creator><![CDATA[Alexandra Champagne]]></dc:creator>
<pubDate>Tue, 16 Apr 2024 11:00:26 +0000</pubDate>
<category><![CDATA[Justice Issues]]></category>
<category><![CDATA[Legal Information]]></category>
<category><![CDATA[Legal Publishing]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106581</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png">
In the 1920s, Jackie Coogan became one of Hollywood’s first child stars after playing the titular role of “The Kid” alongside Charlie Chaplin. Having starred in several box office successes, Coogan’s childhood career had <a href="https://www.washingtonpost.com/history/2023/08/25/illinois-child-influencer-earnings-law-history-jackie-coogan/">earned him an estimated $4 million</a> (roughly $62 million today). When Coogan tried to access his earnings in his 20’s, however, he discovered that his mother had spent nearly his entire fortune. In response to public outcry, California passed the Coogan Act, which aimed to <a href="https://blogs.loc.gov/law/2022/06/more-than-pocket-money-a-history-of-child-actor-laws/">safeguard a portion of child actors’ earnings</a> until they reached adulthood and to protect them from abuse and exploitation. The Coogan . . . <a href="https://www.slaw.ca/2024/04/16/sharenthood-turning-childhood-into-lucrative-content/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/16/sharenthood-turning-childhood-into-lucrative-content/">Sharenthood: Turning Childhood Into Lucrative Content</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"> In the 1920s, Jackie Coogan became one of Hollywood’s first child stars after playing the titular role of “The Kid” alongside Charlie Chaplin. Having starred in several box office successes, Coogan’s childhood career had <a href="https://www.washingtonpost.com/history/2023/08/25/illinois-child-influencer-earnings-law-history-jackie-coogan/">earned him an estimated $4 million</a> (roughly $62 million today). When Coogan tried to access his earnings in his 20’s, however, he discovered that his mother had spent nearly his entire fortune. In response to public outcry, California passed the Coogan Act, which aimed to <a href="https://blogs.loc.gov/law/2022/06/more-than-pocket-money-a-history-of-child-actor-laws/">safeguard a portion of child actors’ earnings</a> until they reached adulthood and to protect them from abuse and exploitation. The Coogan Act contained several loopholes that permitted continued exploitation (see the money troubles of <a href="https://www.huffpost.com/entry/child-stars-protection-coogans-law_n_4775408#:~:text=Temple%20made%20the%20majority%20of,nearly%20all%20of%20his%20money.">Shirley Temple</a>, <a href="https://www.chicagotribune.com/1997/03/05/culkins-parents-lose-control-of-his-money/">Macaulay Culkin</a> and <a href="https://www.latimes.com/archives/la-xpm-1990-01-31-me-1022-story.html">Gary Coleman</a>), which were partially addressed by <a href="https://blogs.loc.gov/law/2022/06/more-than-pocket-money-a-history-of-child-actor-laws/">revisions made in 2000</a>. While there are laws in both Canada and the United States that aim to prevent the financial exploitation of child actors, little has been done to <a href="https://journalhosting.ucalgary.ca/index.php/muj/article/view/76422/56520">protect their privacy or prevent other forms of abuse</a>. And in the context of children in the emerging online entertainment industry, there are almost no protections offered.
<h2>Making Children Earn Their Keep (And Then Some…)</h2>
Children have become increasingly present—and popular—in online content. <a href="https://www.forbes.com/sites/abrambrown/2022/01/14/the-highest-paid-youtube-stars-mrbeast-jake-paul-and-markiplier-score-massive-paydays/?sh=4e1985fa1aa7">According to Forbes</a>, two out of the top ten highest paid YouTubers in 2021 were under the age of 13 (10-year-old Nastya earned $28 million, while 12-year-old Ryan earned a paltry $27 million). But given the fact that most large social media platforms (including <a href="https://www.tiktok.com/safety/en/guardians-guide/">TikTok</a>, <a href="https://kids.youtube.com/t/terms#:~:text=Who%20may%20use%20the%20Service%3F,-Age%20Requirements&text=You%20must%20be%20at%20least,a%20parent%20or%20legal%20guardian.&text=If%20you%20are%20under%2018,permission%20to%20use%20the%20Service.">YouTube</a> and <a href="https://help.instagram.com/154475974694511#:~:text=We%20require%20people%20to%20be,requirement%20for%20everyone%20on%20Instagram.">Instagram</a>) prohibit children under 13 from making an account, how are young children making it big online? In most cases, these accounts are run by their parents. Such accounts create content that usually falls under two major categories: “Kidfluencing” and “Sharenting”. In general, kidfluencing videos star children and are targeted towards other children. Such videos can feature toy reviews, unboxing gifts, or playing games. “Sharenting” videos, on the other hand, are usually centered on the parent (called a “mommy vlogger” or “family vlogger”) while still featuring their children and are geared towards a broader audience. These videos focus more on parenting advice, recipes, and documenting the family’s daily life.
<div id="attachment_106582" style="width: 610px" class="wp-caption alignnone"><img decoding="async" aria-describedby="caption-attachment-106582" class="wp-image-106582 size-large" src="https://www.slaw.ca/wp-content/uploads/2024/03/child-vloggers1-600x344.jpg" alt="" width="600" height="344" srcset="https://www.slaw.ca/wp-content/uploads/2024/03/child-vloggers1-600x344.jpg 600w, https://www.slaw.ca/wp-content/uploads/2024/03/child-vloggers1-300x172.jpg 300w, https://www.slaw.ca/wp-content/uploads/2024/03/child-vloggers1-200x115.jpg 200w, https://www.slaw.ca/wp-content/uploads/2024/03/child-vloggers1-768x440.jpg 768w, https://www.slaw.ca/wp-content/uploads/2024/03/child-vloggers1.jpg 1039w" sizes="(max-width: 600px) 100vw, 600px" />Ryan’s World, “<a href="https://www.youtube.com/watch?app=desktop&v=MkiQVURF4qQ">Christmas Morning 2015 Opening Presents Surprise Toys Ryan ToysReview”</a> (25 December 2015). Ryan, now 12, has been making YouTube videos since he was 3. Note that I blurred the child’s face from the original thumbnail.</div>
<h2>An Industry Based on Exploitation</h2>
If you think this kind of manager-talent relationship between parents and children sounds ripe for abuse, you would be correct. While abuse is a broad term, it usually takes one of four main forms: <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10218097/">emotional, physical, sexual or economic</a>. Now, I think that it’s important to more clearly define emotional abuse before throwing the term around willy nilly. While the definitions of other forms of abuse may seem more clear cut, emotional abuse can seem nebulous to some. The Canadian government <a href="https://www.justice.gc.ca/eng/cj-jp/fv-vf/about-apropos.html">specifically recognizes</a> acts that would take away an individual’s self-respect (including humiliation and name calling) as a form of emotional abuse. Child influencers are particularly vulnerable to this type of emotional abuse by their parents, who have complete control over their lives. One former kidfluencer whose <a href="https://www.cosmopolitan.com/lifestyle/a60125272/sharenting-parenting-influencer-cost-children/">entire childhood was made into content</a>, shared how humiliated she felt when her mother forced her to do sponsored posts for sanitary pads when she reached puberty and began menstruating. In <a href="https://www.today.com/parents/jordan-cheyenne-speaks-out-about-youtube-video-son-crying-t231055">another example</a>, a former family vlogger was seen in a since-deleted video coaching her already distressed child on how to cry for the thumbnail after learning their puppy was dying. In some cases, emotionally abusive or otherwise exploitative behavior online can be indicative of physical abuse behind the camera. In February of 2024, former family vlogger Ruby Franke was sentenced up to <a href="https://globalnews.ca/news/10305461/ruby-franke-sentenced-child-abuse-jodi-hildebrandt/">60 years based on four counts of aggravated child abuse</a>. While her strict parenting style on camera <a href="https://www.change.org/p/child-protective-services-cps-investigation-into-8-passengers">led some to believe Franke was abusive</a> (e.g., threatening to destroy her children’s toys, withholding food, etc.) she was not arrested until her 12-year-old son escaped to request aid from neighbors. Upon investigation, the police found her children had severe signs of <a href="https://time.com/6696522/ruby-franke-child-abuse-sentencing-youtube/">malnourishment and abuse</a>.
<div id="attachment_106583" style="width: 610px" class="wp-caption alignnone"><img loading="lazy" decoding="async" aria-describedby="caption-attachment-106583" class="wp-image-106583 size-large" src="https://www.slaw.ca/wp-content/uploads/2024/03/child-vloggers2-600x307.jpg" alt="" width="600" height="307" srcset="https://www.slaw.ca/wp-content/uploads/2024/03/child-vloggers2-600x307.jpg 600w, https://www.slaw.ca/wp-content/uploads/2024/03/child-vloggers2-300x153.jpg 300w, https://www.slaw.ca/wp-content/uploads/2024/03/child-vloggers2-200x102.jpg 200w, https://www.slaw.ca/wp-content/uploads/2024/03/child-vloggers2-768x393.jpg 768w, https://www.slaw.ca/wp-content/uploads/2024/03/child-vloggers2.jpg 987w" sizes="(max-width: 600px) 100vw, 600px" />Today, “<a href="https://www.today.com/parents/family/live-blog/ruby-franke-sentencing-child-abuse-rcna139269">YouTube mom Ruby Franke and counselor Jodi Hildebrandt sentenced to 4-30 years for child abuse</a>” Ruby Franke, left, in a video on her YouTube channel, and appearing in court in December on child abuse charges.</div>
In some cases, parents may—intentionally or otherwise—expose their children to sexual abuse. A recent <a href="https://www.nytimes.com/2024/02/22/us/instagram-child-influencers.html">New York Times article</a> shed light on a major risk of posting your children publicly: pedophiles. While some of the child-centered accounts that they investigated posted predominantly innocuous content, <a href="https://www.nytimes.com/2024/02/22/us/instagram-child-influencers.html">the review found</a> that many mom-run accounts heavily featured images of their young daughters in tight or revealing clothing, sometimes in suggestive poses. While some parents interviewed claimed to delete inappropriate comments and block abusive users, other parents seemingly encouraged commenters and sold special photo sets or exclusive Q&As to “fans” of their children. This provides parents with a lucrative opportunity to exploit their children with the plausible deniability that they were naive to the fact that most of their children’s followers were adult men. Regardless of the stated intention of the parents, however, children are being exploited for money through online content. So, what should be done to prevent this from happening?
<h2>Removing the Financial Incentives</h2>
Just as in the case of child actors, child influencers can make big money. Through brand deals, ad revenue, merchandising, and donations, children with larger accounts can <a href="https://www.nytimes.com/2023/10/10/style/children-influencers-money.html">rake in huge earnings</a>—for their parents. Throughout all of Canada and most of the US, child influencers are afforded no protection from the financial exploitation of their parents. In other words, it is up to the parents to decide whether they want to save for their child’s future education or follow in the footsteps of Jackie Coogan’s mom and blow it all on diamonds and fur coats. In August 2024, <a href="https://www.nytimes.com/2023/10/10/style/children-influencers-money.html">Illinois became the first North American jurisdiction</a> to pass a law specifically requiring adults who use a child’s likeness, name or photograph in paid online content to set aside a portion of those earnings in a trust. This law represents a positive step in legislative progression. Illinois has recognized the changing face of children’s labour in entertainment and has taken action to address the real ongoing harms in the online content industry.
While protecting a child from certain forms of exploitation may be difficult to legislate (though the Canadian government has recently recognized the need to protect children online in the <a href="https://www.parl.ca/DocumentViewer/en/44-1/bill/C-63/first-reading">Online Harms Bill</a>), there is a clear path forward to preventing financial exploitation. Canadian provinces should follow the lead of Illinois and adopt legislation to protect children’s earnings from online content. Currently, Ontario’s <a href="https://www.ontario.ca/laws/statute/s15002">Protecting Child Performers Act, 2015</a> requires 25% of a child performer’s earnings to be held in trust if they earn over $2000. These protections are not extended to child performers in online content. Other provinces have similar legislation. Canadian labour law must be updated to meet the realities of the modern entertainment industry and address the challenges therein. And who knows, maybe Canadian provinces could even let children keep an even greater percentage of their earnings. 25% sounds a little meager to me. Let’s allow the kids to enjoy the fruits of their labour and raise it to say…50%. And if you’re a former child performer reading this 10 years in the future and your provincial government took my advice… I have PayPal and am currently awaiting your generous donation.
The post <a href="https://www.slaw.ca/2024/04/16/sharenthood-turning-childhood-into-lucrative-content/">Sharenthood: Turning Childhood Into Lucrative Content</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/16/sharenthood-turning-childhood-into-lucrative-content/feed/</wfw:commentRss>
<slash:comments>0</slash:comments>
</item>
<item>
<title>Summaries Sunday: SOQUIJ</title>
<link>https://www.slaw.ca/2024/04/14/summaries-sunday-soquij-524/</link>
<comments>https://www.slaw.ca/2024/04/14/summaries-sunday-soquij-524/#respond</comments>
<dc:creator><![CDATA[Administrator]]></dc:creator>
<pubDate>Sun, 14 Apr 2024 11:00:41 +0000</pubDate>
<category><![CDATA[Summaries Sunday]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106730</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png">
Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.
PÉNAL (DROIT) : Dans le cadre de l’affaire du meurtre de Guylaine Potvin, le tribunal déclare recevable le témoignage d’une biologiste judiciaire à titre de témoin expert concernant l’utilisation du nouvel outil d’enquête désigné comme le «Projet PatronYme» et ses résultats.
Intitulé : R. c. Grenon, <a href="http://citoyens.soquij.qc.ca/ID=C790786ACDAB70D045BCB3360197E90B">2024 QCCS 551</a> 
Juridiction . . . <a href="https://www.slaw.ca/2024/04/14/summaries-sunday-soquij-524/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/14/summaries-sunday-soquij-524/">Summaries Sunday: SOQUIJ</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png"> Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.
PÉNAL (DROIT) : Dans le cadre de l’affaire du meurtre de Guylaine Potvin, le tribunal déclare recevable le témoignage d’une biologiste judiciaire à titre de témoin expert concernant l’utilisation du nouvel outil d’enquête désigné comme le «Projet PatronYme» et ses résultats.
Intitulé : R. c. Grenon, <a href="http://citoyens.soquij.qc.ca/ID=C790786ACDAB70D045BCB3360197E90B">2024 QCCS 551</a> 
Juridiction : Cour supérieure (C.S.), Chicoutimi 
Décision de : Juge François Huot 
Date : 26 février 2024
Résumé
PÉNAL (DROIT) — preuve pénale — recevabilité de la preuve — voir-dire — témoignage — expert — biologie judiciaire — nouvel outil d’enquête — projet PatronYme — recherche de patronymes — identification de l’accusé — orientation de l’enquête policière — critères à considérer — nouvelles techniques ou disciplines scientifiques — pertinence — nécessité d’aider le juge des faits — qualification de l’expert — impartialité — indépendance — fiabilité — valeur probante — effet préjudiciable — situation exceptionnelle — meurtre au premier degré — agression sexuelle grave.
Requête en déclaration de recevabilité d’un témoignage d’expert. Accueillie.
Dans le cadre de l’affaire du meurtre de Guylaine Potvin, survenu en 2000, la poursuite sollicite l’autorisation de faire entendre une personne à titre de témoin expert en biologie judiciaire, plus particulièrement en ce qui concerne l’utilisation du nouvel outil d’enquête désigné comme le «projet PatronYme» et ses résultats. En l’occurrence, le témoin était responsable de l’analyse du chromosome Y obtenu d’un prélèvement effectué sous les ongles de la victime à des fins de comparaison avec une base de données (pYste). Cette base contient des milliers de profils Y associés à des noms de famille. Ces données constituent l’unique base de référence du projet PatronYme. La recherche de profils Y dans pYste a été menée afin d’obtenir un ou des patronymes potentiels d’un suspect inconnu et de fournir ainsi de nouvelles pistes d’enquête à la police.
Décision
En l’espèce, les critères de recevabilité d’une preuve d’expert, dans le cadre de la première étape de l’analyse établie dans l’arrêt White Burgess Langille Inman c. Abbott and Haliburton Co. (C.S. Can., 2015-04-30), 2015 CSC 23, SOQUIJ AZ-51171118, 2015EXP-1385, J.E. 2015-767, [2015] 2 R.C.S. 182, sont remplis. Le critère de la pertinence est respecté: l’expertise proposée se rapporte à un fait en litige, à savoir l’identification de l’accusé, bien qu’elle ne permette pas en soi d’établir cette dernière, et elle est à ce point reliée à la question de l’identification qu’elle tend à l’établir en fournissant au juge des faits une explication sur les circonstances qui ont amené les policiers à circonscrire leur enquête sur la personne de l’accusé. Quant au critère de la nécessité d’aider le juge des faits, l’objet de l’expertise porte sur l’identification de l’accusé en tant que suspect principal. La poursuite souhaite fournir au jury un narratif qui lui permettra de comprendre les motifs ayant conduit les policiers à envisager une opération de filature et à requérir une autorisation judiciaire pour obtenir des échantillons corporels de l’accusé. La poursuite ne conteste pas par ailleurs qu’il conviendrait de circonscrire une telle preuve au narratif de l’enquête policière et de l’exclure expressément à titre de preuve d’identification de l’accusé. Sans cette expertise, le jury pourrait légitimement se demander pour quelle raison les policiers n’ont rien fait pendant 20 ans, alors que l’intimé faisait déjà partie d’une liste de suspects après la mort de la victime. Ainsi, il s’agit d’une «situation exceptionnelle» où le jury serait incapable de tirer ses propres conclusions sans l’aide d’un expert possédant des connaissances particulières. Manifestement, l’opinion du témoin est recevable pour donner au tribunal des renseignements scientifiques qui, selon toute vraisemblance, dépassent l’expérience et la connaissance d’un jury. Le critère de la qualification suffisante de l’expert est également rempli: l’objet de l’expertise relève du champ de compétence du témoin. De plus, celui-ci est disposé à rendre un témoignage impartial, indépendant et sans parti pris. Par ailleurs, l’expertise proposée n’est visée par aucune autre règle d’exclusion. Quant au dernier critère, relatif aux nouvelles techniques ou disciplines scientifiques, l’identification du profil Y est acceptée depuis longtemps. En revanche, son association à un patronyme est nouvelle. Dans 57 % des cas, cette technique permet d’orienter l’enquête vers le nom de famille du contributeur d’ADN. Cependant, la fiabilité des principes scientifiques s’apprécie en fonction de l’objectif poursuivi, qui consiste en l’occurrence à orienter une enquête policière et non à identifier à un accusé. La poursuite est consciente de la nécessité pour les policiers de confirmer la fiabilité du recours au projet PatronYme par l’obtention d’un échantillon d’ADN. En somme, on ne parle pas d’une science nouvelle, mais d’une technique scientifique reconnue appliquée à des fins nouvelles. La suite de l’enquête a prouvé la fiabilité de cette technique d’enquête.
Au stade de la deuxième étape, le tribunal rappelle qu’aucune réserve n’a été émise quant à l’indépendance et à l’impartialité de l’expert. La pertinence de l’expertise, sa nécessité, la fiabilité de la technique d’enquête et l’absence de parti pris ne font aucun doute. Le projet PatronYme ne vise pas précisément l’accusé. La recherche d’un profil Y dans pYste ne permet que de cibler des noms de famille pour orienter une enquête policière; il ne s’agit donc que d’une technique d’enquête dont le résultant est un communiqué sur la recherche de patronymes. Également, la preuve de cette technique d’enquête n’est guère longue ni complexe. Par ailleurs, le pointage de la correspondance obtenue en lien avec le nom de famille «Grenon» est de 94 sur 98, et ce, pour 21 allèles sur 21. Cette fiabilité est rehaussée par le résultat du prélèvement d’ADN effectué sur l’accusé à la suite de son arrestation. Ainsi, le tribunal déclare recevable le témoignage du témoin en question à titre de témoin expert en biologie judiciaire, plus particulièrement en ce qui concerne l’utilisation du projet PatronYme et ses résultats.
Le texte intégral de la décision est disponible <a href="http://citoyens.soquij.qc.ca/ID=C790786ACDAB70D045BCB3360197E90B">ici</a>
The post <a href="https://www.slaw.ca/2024/04/14/summaries-sunday-soquij-524/">Summaries Sunday: SOQUIJ</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/14/summaries-sunday-soquij-524/feed/</wfw:commentRss>
<slash:comments>0</slash:comments>
</item>
<item>
<title>Blaming Victim of Sexual Harassment Not a Good Defence</title>
<link>https://www.slaw.ca/2024/04/11/blaming-victim-of-sexual-harassment-not-a-good-defence/</link>
<comments>https://www.slaw.ca/2024/04/11/blaming-victim-of-sexual-harassment-not-a-good-defence/#respond</comments>
<dc:creator><![CDATA[Marie-Yosie Saint-Cyr, First Reference Managing Editor]]></dc:creator>
<pubDate>Thu, 11 Apr 2024 14:30:15 +0000</pubDate>
<category><![CDATA[Case Comment]]></category>
<category><![CDATA[Substantive Law]]></category>
<category><![CDATA[Substantive Law: Judicial Decisions]]></category>
<category><![CDATA[disciplinary measures]]></category>
<category><![CDATA[Employment Law]]></category>
<category><![CDATA[grievance]]></category>
<category><![CDATA[Just cause]]></category>
<category><![CDATA[just cause for discipline.]]></category>
<category><![CDATA[Labour Law]]></category>
<category><![CDATA[sexual harassment]]></category>
<category><![CDATA[Victim blaming]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106725</guid>
<description><![CDATA[Written by Christina Catenacci, BA, LLB, LLM, PhD, Content Editor, First Reference Inc.
In January 2024, a British Columbia labour arbitrator had no hesitation concluding that an employee, who was the grievor accusing a female colleague of sexual harassment in this case, was actually the one who was sexually harassing the female colleague. Simply put, the arbitrator found that the grievor’s evidence was not credible, the female colleague’s account was credible and consistent with the evidence, and the female colleague did not do what the employee accused her of. As a result, the labour arbitrator agreed with the employer that . . . <a href="https://www.slaw.ca/2024/04/11/blaming-victim-of-sexual-harassment-not-a-good-defence/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/11/blaming-victim-of-sexual-harassment-not-a-good-defence/">Blaming Victim of Sexual Harassment Not a Good Defence</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<h3>Written by Christina Catenacci, BA, LLB, LLM, PhD, Content Editor, First Reference Inc.</h3>
In January 2024, a British Columbia labour arbitrator had no hesitation concluding that an employee, who was the grievor accusing a female colleague of sexual harassment in this case, was actually the one who was sexually harassing the female colleague. Simply put, the arbitrator found that the grievor’s evidence was not credible, the female colleague’s account was credible and consistent with the evidence, and the female colleague did not do what the employee accused her of. As a result, the labour arbitrator agreed with the employer that the grievor filed a knowingly false complaint against the female colleague and the employer had just cause for discipline. The grievor’s termination grievance was dismissed.
<h3>What happened?</h3>
The employee was a regular full-time faculty member with the employer. He filed a sexual harassment complaint against a female colleague, accusing her of doing things that allegedly happened two years earlier. More specifically, the employee argued that the female colleague propositioned him for sex, tried to kiss him while they were in the car, brushed her breast against his arm and then finally kissed him on the mouth without consent.
The female colleague was a new employee. She denied all of the accusations against her and told a different story where she was made to feel uncomfortable around the employee, and the employee’s conduct was so upsetting that she asked to be relocated from the office they shared on campus to another location.
The employer hired a third-party to investigate the matter. Afterwards, the employer accepted the findings in the report and terminated the employee since his accusations were found to be false, made in bad faith and made in a distorted manner.
The labour arbitrator asked whether the employer had met its onus of showing just cause for the termination. This was made challenging since there were diverging accounts of the six months of interactions between the employee and his female colleague.
The arbitrator noted that, according to the employee, the female colleague called him cute, commented on his clothing saying they were sexy, and called him vagina bait. He also said that she tried to kiss him when they were in her car, brushed against him and eventually planted a non-consensual kiss on his mouth. In his complaint, he stated that he was not looking for retribution; he just wanted the situation put on record because he wanted to safeguard his career. He pointed out that the female colleague was part of a hatefest against him.
Contrastingly, the female colleague stated that nothing that the employee argued was true. She wanted to make a good impression as a new faculty member with the employer so that she could secure a permanent role. She was stressed, and the employee called her cute, the relationship was weird, his comments were over the top and she felt manipulated by him. The employee was not well-liked in the department, and he made her feel uncomfortable. She did not say anything to her employer right away because she did not want to make any waves as a new employee. Also, she did not have anything tangible yet to bring to the employer. She did not like that he asked her personal questions such as asking about her oral hygiene, which she thought was disturbing. She asked for advice from people who could help her (this was confirmed by Email records). Ultimately, she felt that she had no choice but to ask for a relocation to another place on the campus.
According to the employer, the female colleague gave testimony that was credible-unlike the employee’s evidence. In fact, the employer relied on her evidence when deciding to terminate the employee. Further, the employer argued that, regardless of the reasons why the employee fabricated the story, the employee persisted with the false story and his bad faith allegations without remorse or regard for the negative impact on the female colleague.
<h3>What did the labour arbitrator decide?</h3>
The arbitrator found the following:
<ul>
<li>The employee’s testimony was not credible given his inconsistencies and embellishments, and also his verbose modifications during cross-examinations. The employee was evasive during questioning and he gave convoluted responses.</li>
<li>
The female colleagues’ evidence was genuine and forthright, which was reasonable in the circumstances. She gave clear and concise explanations and answered questions directly.</li>
<li>It was more likely than not that it was the employee who initiated conversations that were sexualized-not the female colleague</li>
<li>Whether we are talking about what transpired in the office or the car, it was clear that the employee’s evidence was inconsistent and implausible. Taking a holistic view of the evidence, I find it more likely than not that the nature of the relationship between the [female colleague] and the [employee] was not that of a female colleague engaging in sexually suggestive conduct and kissing the [employee] without his consent, as alleged in the Complaint. I find the [employee’s] evidence, and his allegations against the [female colleague] place too great a strain on one’s sense of the realities of life and clash with the preponderance of probabilities disclosed by the surrounding circumstances.</li>
</ul>
Accordingly, the employer could show that the employee filed a knowingly false complaint against the female colleague and it had just cause for discipline. To that end, the employee’s grievance was dismissed.
<h3>What can we take from this case?</h3>
As can be seen in this case, it will eventually come out via investigations and hearings that an employee made up a sexual harassment complaint. Employers are recommended to address this issue of employees creating fictitious claims against coworkers in their anti-discrimination and anti-harassment policies. Along those lines, the issue should also be addressed during training sessions with employees so that it is clear that making up complaints in a dishonest manner will not be tolerated, and the policy will be enforced against employees with discipline up to and including termination.
Source: 2024 CarswellBC 211.
The post <a href="https://www.slaw.ca/2024/04/11/blaming-victim-of-sexual-harassment-not-a-good-defence/">Blaming Victim of Sexual Harassment Not a Good Defence</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/11/blaming-victim-of-sexual-harassment-not-a-good-defence/feed/</wfw:commentRss>
<slash:comments>0</slash:comments>
</item>
<item>
<title>Democratizing Justice, Whose Problem Is It?</title>
<link>https://www.slaw.ca/2024/04/11/democratizing-justice-whose-problem-is-it/</link>
<comments>https://www.slaw.ca/2024/04/11/democratizing-justice-whose-problem-is-it/#comments</comments>
<dc:creator><![CDATA[Canadian Forum on Civil Justice]]></dc:creator>
<pubDate>Thu, 11 Apr 2024 11:00:07 +0000</pubDate>
<category><![CDATA[Justice Issues]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106618</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png">
Democratization means making something, usually a public good, accessible to everyone. The democratization of technology related to the internet or the democratization of health care are examples. As digital technologies become more widely adopted in areas touching peoples’ daily lives such as making appointments, applications for employment, being informed about changes in conditions of services or bargains available in the marketplace the reasons for making enabling technologies accessible to everyone become increasingly obvious. In a nation with a long-standing system of publicly funded health care the reasons are obvious although the realization seems to be falling short. In justice democratization . . . <a href="https://www.slaw.ca/2024/04/11/democratizing-justice-whose-problem-is-it/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/11/democratizing-justice-whose-problem-is-it/">Democratizing Justice, Whose Problem Is It?</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"> Democratization means making something, usually a public good, accessible to everyone. The democratization of technology related to the internet or the democratization of health care are examples. As digital technologies become more widely adopted in areas touching peoples’ daily lives such as making appointments, applications for employment, being informed about changes in conditions of services or bargains available in the marketplace the reasons for making enabling technologies accessible to everyone become increasingly obvious. In a nation with a long-standing system of publicly funded health care the reasons are obvious although the realization seems to be falling short. In justice democratization is being discussed, but unlike health care, in which democratization is accepted but falling short of its full realization, democratization of justice is a concept and an objective yet to be fully explored.
The introduction of United Nations Sustainable Development Goal (SDG) 16 in 2016 has energized the access to justice movement. SDG 16 is about promoting peaceful and inclusive societies for sustainable development, providing access to justice for all and building effective, accountable and inclusive institutions at all levels. SDG 16 has inspired evocative new themes in the recent discourse around access to justice such as justice for all<a href="#_ftn1" name="_ftnref1">[1]</a>, people-centered justice<a href="#_ftn2" name="_ftnref2">[2]</a> and, more recently, the democratization of justice.<a href="#_ftn3" name="_ftnref3">[3]</a>
More than a decade before SDG 16, legal needs research began focusing on legal problems as they are experienced by members of the public, rather than from the perspective of the formal justice system. Hazel Genn focused her landmark Paths to Justice study on justiciable problems, problems with legal aspects whether or not the individual recognizes the legal aspect of the problem or whether or not the person engages any part of the formal justice system to resolve it.<a href="#_ftn4" name="_ftnref4">[4]</a> Since Professor Genn’s seminal research, a large body of research producing remarkably consistent results has developed worldwide. From that we know now that legal problems are ubiquitous. Approximately a third to a half of all adults will likely experience one or more everyday legal problems within about a three-year period. Most people do not recognize the legal aspects or the potential seriousness of problems when they first occur. A majority of people do not obtain legal advice or other authoritative assistance. Many people do not resolve their problems in a timely way and experience a variety of adverse consequences as a result. Some people experience multiple inter-related problems that resist resolution unless the problem clusters are dealt with holistically. This has changed the way in which legal problems are viewed within socio-legal research and scholarship. The results of the contemporary body of legal needs research and the aspirational goals expressed within high level policy discourse in access to justice has set the higher bar for meeting the legal needs of the public. The task of expanding access to justice stretches the capacity of legal services providers beyond the funding available from traditional sources and beyond the skill sets normally resident in legal clinics.
Taking legal services as a starting point,<a href="#_ftn5" name="_ftnref5">[5]</a> democratizing justice can be accomplished using a number of strategies that have already been tried. First, it requires outreach. This means finding innovative ways to reach out to communities, learning from them in order to understand the problems being experienced by people, then working with those communities to find solutions that make sense for and to the people being helped. It means serving more people, serving people who might not otherwise receive help and assisting people with a range of problems that may be greater than the traditional menu of problems encompassed by coverage restrictions. It means establishing networks of access to justice services, so people can be referred to organizations with the skills and experience to deal with problems beyond the capacity of the legal service provider. It means partnering with community organizations that make up the social organizing of helping that exists in most communities. Collaborative partnerships might involve joined-up efforts to resolve multiple issues for individuals with complex problems. Importantly, it means discovering ways to connect with people who do not recognize they are experiencing problems that may have legal solutions. This can involve referrals from the trusted intermediary organizations to which people often turn first for help. This may require working with community organizations to give them the legal capability to identify potential legal need in their own clients and referring them to the legal services provider. Once established, outreach can create its own pathways as the service becomes alive and embedded in the community. This can involve observing how outreach evolves once set in motion, learning from the evolving strands of outreach how people learn about services available and responding to these new patterns, perhaps by locating the outreach where people will see it, reaching out through social media, appearing at community events, being in the community with the frequency and regularity that people begin to recognize the services as part of their community and a source of help like other services that are there when they need it. These are all elaborations and refinements of that guiding principle of taking justice out “to where people are at”.
One of the important accomplishments of the access to justice movement in decades past has been convincing governments that access to justice is the financial responsibility of the state. That was accomplished during a period in which access to justice rested solely on a rule of law rationale. Now the question: what is a legal problem? is open for debate. As thinking evolves about the nature of legal problems, about justice and access to justice and as aspects of well-being are added to the desired outcomes of access to justice services, we have cast the net wider and have made achieving access to justice a more daunting task. There is now no turning back to a perspective on access to justice that is an exclusively courts and lawyers narrative. In this emerging version of democratizing justice legal services providers are asked to take the lead and do more. Community groups who are already providing assistance to the same people who may require legal help are being asked to take some ownership of the justice problem. We are called upon to ask: whose problem is it? How will it be adequately resourced in a coherent way?
—
Ab Currie, Ph.D. 
Senior Research Fellow 
Canadian Forum on Civil Justice
____________________________________
<a href="#_ftnref1" name="_ftn1">[1]</a> Justice for All, The Report on the Task Force for Justice, Conference Version, Centre for International Co-operation, New York, 2019, www.justice.sdg16.plus
<a href="#_ftnref2" name="_ftn2">[2]</a> Organization for Economic Co-operation and Development, OECD Framework and Good Practice Principles for People-Centred Justice, OECD 2021, GOV/PGC(2021)26, https://www.oecd.org/governance/global-roundtables-access-to-justice/good-practice-principles-for-people-centred-justice.pdf
<a href="#_ftnref3" name="_ftn3">[3]</a> National Centre for Access to Justice and the Fordham Urban Law Journal, Access to Justice Solutions Symposium, February 9, 2024, Panel 3: The Movement to Democratize the Law, https://ncaj.org/news/you-are-invited-people-struggling-and-law-failing-what-are-solutions-access-justice-crisis
<a href="#_ftnref4" name="_ftn4">[4]</a> Hazel Genn, Paths to Justice, What People Do and Think about Going to Law, Oxford, 1999
<a href="#_ftnref5" name="_ftn5">[5]</a> Not necessarily the only perspective on democratizing justice. Supporting non-legal organizations with primary mandates to help people with problems such as domestic violence or housing by producing guides to the law and public legal information is one approach. Another is for legal clinics to provide secondary legal consultations to service providers in community service organizations and voluntary organizations assisting their own clients when they feel the problem may have legal issues.
The post <a href="https://www.slaw.ca/2024/04/11/democratizing-justice-whose-problem-is-it/">Democratizing Justice, Whose Problem Is It?</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/11/democratizing-justice-whose-problem-is-it/feed/</wfw:commentRss>
<slash:comments>1</slash:comments>
</item>
<item>
<title>What if Access to Justice Was Never Going to Lead to Poverty Alleviation?</title>
<link>https://www.slaw.ca/2024/04/10/what-if-access-to-justice-was-never-going-to-lead-to-poverty-alleviation/</link>
<comments>https://www.slaw.ca/2024/04/10/what-if-access-to-justice-was-never-going-to-lead-to-poverty-alleviation/#comments</comments>
<dc:creator><![CDATA[Sarah A. Sutherland]]></dc:creator>
<pubDate>Wed, 10 Apr 2024 11:02:23 +0000</pubDate>
<category><![CDATA[Justice Issues]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106542</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png">
I recently read that when legal aid was first developed in the United States in the 1960s, its primary goal was alleviation of poverty rather than access to counsel. However, over time, some stakeholders, mostly on the conservative side of the political spectrum, expressed concern that this was an inappropriate goal for public policy. This led people working in the legal aid sector to rebrand their initiatives as access to justice.[1] The primary difference between framing initiatives as “access to justice” as opposed to “alleviation of poverty” being that access to justice has a goal of improving the legal system . . . <a href="https://www.slaw.ca/2024/04/10/what-if-access-to-justice-was-never-going-to-lead-to-poverty-alleviation/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/10/what-if-access-to-justice-was-never-going-to-lead-to-poverty-alleviation/">What if Access to Justice Was Never Going to Lead to Poverty Alleviation?</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"> I recently read that when legal aid was first developed in the United States in the 1960s, its primary goal was alleviation of poverty rather than access to counsel. However, over time, some stakeholders, mostly on the conservative side of the political spectrum, expressed concern that this was an inappropriate goal for public policy. This led people working in the legal aid sector to rebrand their initiatives as access to justice.[1] The primary difference between framing initiatives as “access to justice” as opposed to “alleviation of poverty” being that access to justice has a goal of improving the legal system in ways that help everyone regardless of income. Whereas poverty alleviation is concerned with the legal and other needs of people whose primary issues relate to lack of financial and other resources instead of having issues that are primarily legal in nature.
Approximately 60 years later, we are still discussing and working toward access to justice. However, we often don’t clarify the difference between these two concepts. This makes many conversations in this space less clear than they may otherwise be, as in my experience access to justice initiatives are often criticized for not being sufficient to address the needs of people with the fewest economic resources. This can lead to good ideas being discarded as they don’t fit these alternate priorities.
Simultaneously, insufficient attention is paid to the particular needs of those in poverty. These people often have overlapping issues which make resolving their issues complex, as they are frequently not principally legal in nature, and legal representation, as legal aid is traditionally delivered, will not resolve their problems.
The income cutoff eligibility criteria for legal aid in most jurisdictions is so low that it is difficult to imagine that eligible recipients’ problems are predominantly legal in nature. Instead, it seems probable that their issues are more closely related to survival, with access to food, medical care, housing, and other necessities being more immediate concerns. This is not to say that legal means cannot or should not be deployed to help ensure that these needs are met, or that they shouldn’t have accessible ways to resolve their legal issues. But this is not commonly encompassed in the category of access to justice. For example, someone may be being evicted, which is a legal problem, but it is closely linked with economic scarcity and housing stability. The best solution for someone in the situation may not be legal advice, but rather financial assistance or policy reform.
That said, there are many people who need better ways to address their legal problems, and access to justice is an excellent paradigm to facilitate a reduction in conflict in our communities and to help people navigate the ways that their lives intersect with the state better. There is room for considerable change in the way the legal system is run to allow for resolutions to many problems that existing systems do not handle well. From usable forms to online courts to different models of legal services regulation there are many opportunities to provide more accessible resolution to people with legal problems. Initiatives like British Columbia’s Civil Resolution Tribunal, open publishing on platforms like CanLII, and advocacy for self-represented litigants all have room in access to justice.
Many people, however, will still not be adequately served by systems that require access to computers and other technology, advanced reading ability, and other social capital. Instead, they need people who will help them get what they need.
This conflation of these two sets of priorities and confusion of how initiatives will be valued limits our ability to advocate for both. Access to justice initiatives are not a failure if they do not resolve the problems of the most needy in our society. That is often not their primary purpose. Instead, they can be directed at people who are not always well served in the current environment that emphasizes the hiring of lawyers as representatives to achieve problem resolution and full court processes to resolve disputes. There are many people who may not have the funds needed to hire full service legal representation or need that level of service, but who can read well, and have access to computers and other initiatives, that can help them resolve their issues.
Access to Justice is not a failure if it solves the problems for these people. That said, there are many who will continue to have need of poverty alleviation and legal means are excellent tools to make sure that happens. It is appropriate for systems and services to be in place to help them get what they need. More people with legal problems identify concerns about issues like worrying lawyers will make a problem worse than say that they can’t afford legal assistance.[2] Finding better ways for people to navigate their interactions with the state and each other is a big tent, and there is room for diverse approaches. Let’s make sure we understand what we are discussing and not try to make every initiative fit all goals to be seen as a success.
[1] Charn, Jeanne. “Celebrating the ‘Null’ Finding: Evidence-Based Strategies for Improving Access to Legal Services.” Yale L.J. 122 (2013): 2206. <a href="https://www.yalelawjournal.org/essay/celebrating-the-null-finding-evidence-based-strategies-for-improving-access-to-legal-services">https://www.yalelawjournal.org/essay/celebrating-the-null-finding-evidence-based-strategies-for-improving-access-to-legal-services</a>. 
[2] Sutherland, Sarah A. “Uncovering Opportunities for Legal Services.” CBA/ABC The National, June 20, 2023. <a href="https://nationalmagazine.ca/en-ca/articles/law/access-to-justice/2023/uncovering-opportunities-for-legal-services">https://nationalmagazine.ca/en-ca/articles/law/access-to-justice/2023/uncovering-opportunities-for-legal-services</a>.
The post <a href="https://www.slaw.ca/2024/04/10/what-if-access-to-justice-was-never-going-to-lead-to-poverty-alleviation/">What if Access to Justice Was Never Going to Lead to Poverty Alleviation?</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/10/what-if-access-to-justice-was-never-going-to-lead-to-poverty-alleviation/feed/</wfw:commentRss>
<slash:comments>2</slash:comments>
</item>
<item>
<title>The Court of Owls… and Other Things That Mean Different Things to Different People</title>
<link>https://www.slaw.ca/2024/04/09/the-court-of-owls-and-other-things-that-mean-different-things-to-different-people/</link>
<comments>https://www.slaw.ca/2024/04/09/the-court-of-owls-and-other-things-that-mean-different-things-to-different-people/#respond</comments>
<dc:creator><![CDATA[Marc Bhalla]]></dc:creator>
<pubDate>Tue, 09 Apr 2024 11:00:18 +0000</pubDate>
<category><![CDATA[Dispute Resolution]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106579</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png">
Note: In this article, the term “culture” is used broadly and is intended to mean anything and everything related to one’s customs, beliefs, behaviours and habits attributable to the make-up of who they are. It embraces the concept introduced to the writer by legendary professor Michelle LeBaron which appreciates that each individual person subscribes to several different cultures. Any one person may have a cultural component of themselves attributable to their age, surroundings, work, etc.
<a href="https://www.linkedin.com/in/afsana-gibson-chowdhury-q-med-26875371/">Afsana Gibson-Chowdhury</a> is the founder of <a href="https://gcmediation.com/">Gibson Chowdhury, Clear Collaborative Mediation</a> and a renowned advocate for equity, diversity and inclusion among legal, dispute resolution and . . . <a href="https://www.slaw.ca/2024/04/09/the-court-of-owls-and-other-things-that-mean-different-things-to-different-people/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/09/the-court-of-owls-and-other-things-that-mean-different-things-to-different-people/">The Court of Owls… and Other Things That Mean Different Things to Different People</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"> Note: In this article, the term “culture” is used broadly and is intended to mean anything and everything related to one’s customs, beliefs, behaviours and habits attributable to the make-up of who they are. It embraces the concept introduced to the writer by legendary professor Michelle LeBaron which appreciates that each individual person subscribes to several different cultures. Any one person may have a cultural component of themselves attributable to their age, surroundings, work, etc.
<a href="https://www.linkedin.com/in/afsana-gibson-chowdhury-q-med-26875371/">Afsana Gibson-Chowdhury</a> is the founder of <a href="https://gcmediation.com/">Gibson Chowdhury, Clear Collaborative Mediation</a> and a renowned advocate for equity, diversity and inclusion among legal, dispute resolution and cross-sector professionals. In practice, Afsana has found it of paramount importance to address conflict that emerges through differing points of view early. This can minimize the potential of misunderstanding adding hostility, a risk ever more present when disputing parties lack shared cultural understanding. Afsana’s goal is to “create a safe environment where clients can openly share their views and explore themes of trust and security… drawing similarities can help parties to attach, and appreciate one another emotionally.” It takes an emotionally intelligent person to pick up cues and succeed in creating such shared understanding among parties in conflict.
Gibson-Chowdhury views it as part of the role of the process facilitator to notice and help parties overcome differing cultural views. In the collaborative process of mediation, such understanding is often essential to address a dispute. Establishing a secure space, absence of safety threats is key if a collaborative opportunity is going to be fully embraced. In adversarial proceedings, this understanding is an essential component of fairness. Those participating need to feel heard, objectively judged and offered the chance to put forth their best arguments.
Acknowledging variant cultural understandings is needed to overcome the challenges they bring. Contemporary dispute resolution process facilitators must be sympathetic and attuned to the potential impact of cultural differences amongst those they work with. The flexibility of private dispute resolution processes can help to overcome this, as can societal trends towards inclusion and greater understanding. Of course, obstacles exist on an institutional, systemic basis as well. This results in significant concerns related to fairness.
<a href="https://www.linkedin.com/in/imran-kamal-07218240/?originalSubdomain=ca">Imran Kamal</a> is a lawyer who is also a Board Member of the <a href="https://sabatoronto.com/">South Asian Bar Association of Toronto</a>. In discussing such obstacles, our conversation started with the classic consideration around eye contact during witness testimony. Imran and I have both worked with people who subscribe to the belief that looking someone with power in the eye is a sign of disrespect. Reconcile that with the notion that credibility and eye contact are related. The risk is that a decision maker may consider a witness uncredible for behaving in a manner the witness believes is conveying respect.
Beyond the formality of a hearing setting, a lack of shared cultural understanding can be problematic at all stages and levels of dispute resolution processes. By way of another example, touching – even a formal handshake – is seen by some as inappropriate and unprofessional. Appreciating that, it can be easy to see how an attempt to work through differences can end before it begins when someone is “left hanging” with their hand extended. They feel insulted while the receiver of the outstretched hand extended at them feels disrespected.
In search of answers for how to navigate varied etiquette between cultures of all types, many feel that there has historically been a view of conformity. That all who engage in conflict resolution in this part of the world are expected to abide by the practices of the once dominant culture. Kamal sees a default interpretation structure as problematic.
I feel that an important component of this consideration is that it goes both ways. We should not assume that others are familiar with the cultural nuances that are second nature to us. This includes not only etiquette but the meaning of symbols and related representations.
My favourite example of this is the <a href="https://perma.cc/2URH-FTQX">mascot</a> of the Supreme Court of Canada. Introduced in 2009, Amicus is a male-identifying owl whose role is to help draw attention to the court system and how it works; serving as a learning aid for educating younger generations.
Dominant society in Canada views owls as wise. That was not the case for me growing up. The term “ullu” was used as an insult within my friend group. The term means owl in Punjabi. It was used as an insult as the South Asian culture to which I subscribe has historically considered owls to be foolish animals (because they sleep all day and are awake at night). While that view may seem foreign to some, I offer Winnie the Pooh to help bridge the gap. The character <a href="https://winniethepooh.disney.com/owl">Owl</a> in the Disney films presents as a buffoon – unaware of the limits of their knowledge. Entertaining to children to be sure, but are those the traits we want to ascribe to the judges who sit on the nation’s highest court?
I am not certain that the intention of Amicus was to have the highest court of the land introduced by a court jester. While not everyone will view the mascot as an anthropomorphic fool, the lesson is to appreciate that we very much live in a society where varied cultures give rise to different interpretations. When it comes to resolving disputes, it is important to be mindful of the potential of this – to promote shared understanding and fairness.
This is not to suggest that dispute resolution practitioners must become fluent in hundreds of different cultures. The suggestion instead is about the importance of checking in on the assumptions we all too easily take for granted. Appreciate that not everyone shares our perspective and understanding. This awareness can help achieve the goal Gibson-Chowdhury suggests for our processes; fostering environments where “there is no devaluation of cultural, political or religious perspectives, and instead a mutual understanding of one another.”
The post <a href="https://www.slaw.ca/2024/04/09/the-court-of-owls-and-other-things-that-mean-different-things-to-different-people/">The Court of Owls… and Other Things That Mean Different Things to Different People</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/09/the-court-of-owls-and-other-things-that-mean-different-things-to-different-people/feed/</wfw:commentRss>
<slash:comments>0</slash:comments>
</item>
<item>
<title>Anticipating AI-Generated Law Journal Submissions</title>
<link>https://www.slaw.ca/2024/04/08/what-to-do-about-ai-generated-law-journal-submissions/</link>
<comments>https://www.slaw.ca/2024/04/08/what-to-do-about-ai-generated-law-journal-submissions/#comments</comments>
<dc:creator><![CDATA[Annette Demers]]></dc:creator>
<pubDate>Tue, 09 Apr 2024 01:00:34 +0000</pubDate>
<category><![CDATA[Technology]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106640</guid>
<description><![CDATA[Last week, I was asked to provide a peer-review of an article submission to a law journal.
After reviewing it thoroughly, I began to suspect that at least some of the content may have been AI-generated.
What Gives?
First off, there were at least two citations that led to dead ends. By now we all know this is a dead give away.
Second, there was little to no language linking paragraphs together. So there might have been two or three paragraphs written on a distinctive topic, but no language to alert the reader that a new topic was about to . . . <a href="https://www.slaw.ca/2024/04/08/what-to-do-about-ai-generated-law-journal-submissions/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/08/what-to-do-about-ai-generated-law-journal-submissions/">Anticipating AI-Generated Law Journal Submissions</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[Last week, I was asked to provide a peer-review of an article submission to a law journal.
After reviewing it thoroughly, I began to suspect that at least some of the content may have been AI-generated.
<h3>What Gives?</h3>
First off, there were at least two citations that led to dead ends. By now we all know this is a dead give away.
Second, there was little to no language linking paragraphs together. So there might have been two or three paragraphs written on a distinctive topic, but no language to alert the reader that a new topic was about to be broached, nor how the topics fit together. 
Of course, we see this in student writing quite frequently, but it occurs to me that this is also may be a clue that AI has been used to draft individual paragraphs within a work.
<h3>What to do About it</h3>
So in addition to providing the article review, I also took a few moments to reach out to the editors. 
I mentioned to them that their Submission Guidelines may need to be updated to address the implications of AI.
I provided the same recommendations noted below to our other journal editors.
<H3>Surveying the Options</H3>
First, I think it is important for journal editors to have it on the radar that AI generated journal submissions are a distinct possibility.
This will require editorial boards to have a proactive conversation about how to handle such submissions.
In my mind, there are a few options available. Here is some language that editors might consider:
Option 1: Submissions shall not contain any AI generated content.
or
Option 2: 
Submissions should contain no more than ___% AI generated content. 
Such content should be thoroughly reviewed by the author to ensure accuracy and proper attribution of all source materials.
(Further details might need to be contemplated, so that the user understands what is an acceptable use and what isn’t. If using this option, then I’d highly recommend adding an additional requirement, as follows:)
Add-on to Option 2 / Option 3 
If submissions contain AI generated content, provide in a footnote for each AI-generated paragraph, the following information:
Name of AI | , version if available | . Prompt. | (Translation of prompt if applicable.) | (Developer | : host if different than developer | , date or date range of response). | URL if conversation publicly saved | (description of any additional prompts.)
Example:
ChatGPT, 3.5. Response to “why do citations of united nations documents include meeting information as well as a document number? It seems redundant.” (OpenAI, 12 January 2024). https://chat.openai.com/share/a41ec2d3-0362-4282-b15b-71654fb5302b (Further prompts to request sources of information provided in response.)
This citation format is borrowed from the draft Canadian Open Access Legal Citation Guide Group, Canadian Open Access Legal Citation Guide (CanLII, forthcoming 2024) (reproduced with permission).*
This final Option 3 could be used as a stand-alone guideline. It essentially does not restrict AI usage in any way, but instead requires attribution only.
<h3>Final Thoughts</h3>
For law librarians and others who are working with authors and editors, it will be our new responsibility to point out areas where AI generation may have impacts. 
To some who are reading this post, this may all seem inconsequential and bookish, however I would point out that our courts do frequently cite secondary material when finalizing their deliberations. Accordingly, having a fulsome discussion about the potential for gen-AI to infiltrate legal scholarship needs to be had in all circles.
By the by, in reviewing the various journal submission guidelines, I also recommended (as appropriate):
1. Moving to the 10th edition of McGill Guide for a citation standard (if an older version was required). 
2. Adopting the use of permanent URLS (such as those generated by <a href="https://perma.cc/" rel="noopener" target="_blank">Perma.cc</a>) (which is recommended by the McGill Guide). 
3. Removing personally identifying information from referee comments in a Word document by using “inspect document” option.
If you have other ideas for how to approach these issues and other similar issues that may arise in our workplaces, please comment below!
*My thanks to @James Bachmann, UBC Law Library and the COAL Group for allowing us this sneak peak. The COAL citation guide contains dozens of further elaborations and examples of how to attribute AI generated content.
The post <a href="https://www.slaw.ca/2024/04/08/what-to-do-about-ai-generated-law-journal-submissions/">Anticipating AI-Generated Law Journal Submissions</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/08/what-to-do-about-ai-generated-law-journal-submissions/feed/</wfw:commentRss>
<slash:comments>2</slash:comments>
</item>
<item>
<title>Monday’s Mix</title>
<link>https://www.slaw.ca/2024/04/08/mondays-mix-551/</link>
<comments>https://www.slaw.ca/2024/04/08/mondays-mix-551/#respond</comments>
<dc:creator><![CDATA[Administrator]]></dc:creator>
<pubDate>Mon, 08 Apr 2024 11:00:21 +0000</pubDate>
<category><![CDATA[Monday’s Mix]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106708</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png">
Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from more than 80 recent <a href="http://www.clawbies.ca/">Clawbie</a> winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
This week the randomly selected blogs are 1. <a href="https://pierreroy.com/blogue">PierreRoy & Associés</a> 2. <a href="https://www.osgoode.yorku.ca/research/research-centres-and-institutes/institute-for-feminist-legal-studies/">IFLS at Osgoode</a> 3. <a href="https://www.canadaemploymenthumanrightslaw.com/">Employment & Human Rights Law in Canada</a> 4. <a href="https://barrysookman.com/">Barry Sookmant</a> 5. <a href="https://meurrensonimmigration.com/">Meurrens on Immigration</a>
PierreRoy & Associés 
<a href="https://pierreroy.com/2024/03/responsabilites-administrateurs-dentreprise-ce-que-vous-devez-savoir/">Responsabilités d’administrateurs d’entreprise : ce que vous devez savoir</a>
Si vous êtes l’administrateur d’une entreprise aux prises avec des difficultés financières, vous . . . <a href="https://www.slaw.ca/2024/04/08/mondays-mix-551/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/08/mondays-mix-551/">Monday’s Mix</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png"> <div class="content-wrap">
<div class="content-wrap">
<div class="content-wrap">
<div class="content-wrap">
<div class="content-wrap">
<div class="content-wrap">
<div class="content-wrap">
Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from more than 80 recent <a href="http://www.clawbies.ca/">Clawbie</a> winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
This week the randomly selected blogs are 1. <a href="https://pierreroy.com/blogue">PierreRoy & Associés</a> 2. <a href="https://www.osgoode.yorku.ca/research/research-centres-and-institutes/institute-for-feminist-legal-studies/">IFLS at Osgoode</a> 3. <a href="https://www.canadaemploymenthumanrightslaw.com/">Employment & Human Rights Law in Canada</a> 4. <a href="https://barrysookman.com/">Barry Sookmant</a> 5. <a href="https://meurrensonimmigration.com/">Meurrens on Immigration</a>
PierreRoy & Associés 
<a href="https://pierreroy.com/2024/03/responsabilites-administrateurs-dentreprise-ce-que-vous-devez-savoir/">Responsabilités d’administrateurs d’entreprise : ce que vous devez savoir</a>
Si vous êtes l’administrateur d’une entreprise aux prises avec des difficultés financières, vous vous demandez probablement quelles seraient les répercussions sur vous personnellement advenant une faillite de l’entreprise. Nous tenterons ici de démystifier et de clarifier vos droits et vos responsabilités en tant qu’administrateur d’une entreprise au Québec. …
IFLS at Osgoode 
<a href="https://www.osgoode.yorku.ca/research/research-centres-and-institutes/institute-for-feminist-legal-studies/">Institute for Feminist Legal Studies</a>
The Institute for Feminist Legal Studies was established at Osgoode in the early 1990s to foster scholarship in feminism and law at Osgoode. We focus on a range of teaching and research activities, including: Visitors who enhance the work of Osgoode faculty and graduate students …
Employment & Human Rights Law in Canada 
<a href="https://www.canadaemploymenthumanrightslaw.com/2024/04/employment-law-101-workplace-harassment/">Employment Law 101: Workplace Harassment</a>
Complaints of harassment in the workplace continue to flourish across all industries. But what counts as “workplace harassment” and what are an employer’s obligations? This post will set out the basics. Workplace harassment is defined under the Ontario Occupational Health and Safety Act (OHSA) as a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome. …
Barry Sookman 
<a href="https://barrysookman.com/2024/04/04/understanding-bill-c-27-from-the-indu-committee-review/">Understanding Bill C-27 from the INDU Committee review</a>
Bill C-27, the Act to enact the new privacy law (the CPPA) and the new law to regulate artifical intelligence (AIDA) has been the subject of much examination and debate including at the INDU Committee. The INDU Committee has now completed hearing from witnesses and has received numerous briefs commenting on the draft new laws. The INDU Committee has now published a list of witnesses that have appeared before it and has made available copies of the briefs filed with the Committee. This information can be accessed …
Meurrens on Immigration 
<a href="https://meurrensonimmigration.com/immigration-blog/">Borderlines Podcast #85 – Security Delays, Study Permits and Mandamus, with Lev Abramovich</a>
Lev Abramovich is an immigration lawyer in Toronto. There has been an increase in security screening in Canadian visa applications for residents of several countries. Chen v. Canada (Citizenship and Immigration), 2023 FC 885 is the first Federal Court of Canada decision to discuss mandamus in the study permit context. Lev was counsel in this …
 
_________________________
*Randomness here is created by Random.org and its <a href="http://www.random.org/lists/">list randomizing function</a>.
</div>
</div>
</div>
</div>
</div>
</div>
</div>
The post <a href="https://www.slaw.ca/2024/04/08/mondays-mix-551/">Monday’s Mix</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/08/mondays-mix-551/feed/</wfw:commentRss>
<slash:comments>0</slash:comments>
</item>
<item>
<title>Summaries Sunday: SOQUIJ</title>
<link>https://www.slaw.ca/2024/04/07/summaries-sunday-soquij-523/</link>
<comments>https://www.slaw.ca/2024/04/07/summaries-sunday-soquij-523/#respond</comments>
<dc:creator><![CDATA[SOQUIJ]]></dc:creator>
<pubDate>Sun, 07 Apr 2024 11:00:00 +0000</pubDate>
<category><![CDATA[Summaries Sunday]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106695</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png">
Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.
PÉNAL (DROIT) : Dans une affaire de violence conjugale et postconjugale, la juge de première instance a commis 2 erreurs de principe en omettant d’évaluer correctement le risque que l’imposition d’une peine avec sursis à l’accusé poserait pour la collectivité; une peine d’emprisonnement de 6 mois est substituée aux 10 . . . <a href="https://www.slaw.ca/2024/04/07/summaries-sunday-soquij-523/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/07/summaries-sunday-soquij-523/">Summaries Sunday: SOQUIJ</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png"> Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.
PÉNAL (DROIT) : Dans une affaire de violence conjugale et postconjugale, la juge de première instance a commis 2 erreurs de principe en omettant d’évaluer correctement le risque que l’imposition d’une peine avec sursis à l’accusé poserait pour la collectivité; une peine d’emprisonnement de 6 mois est substituée aux 10 mois restants de la peine d’emprisonnement avec sursis imposée par la juge.
Intitulé : R. c. Gagnon, <a href="http://citoyens.soquij.qc.ca/ID=11877C700C2851DDA50219B4F988C816">2024 QCCA 343</a> 
Juridiction : Cour d’appel (C.A.), Québec 
Décision de : Juges Stephen W. Hamilton, Michel Beaupré et Éric Hardy 
Date : 19 mars 2024
Résumé
PÉNAL (DROIT) — détermination de la peine — infractions contre la personne — voies de fait — victime conjointe — accusé âgé de 53 ans — violence conjugale — interprétation de «ne met pas en danger la sécurité de la collectivité (art. 742.1 a) C.Cr.) — interprétation large — risque de récidive — critères à considérer — facteurs aggravants — mauvais traitement à l’égard d’un partenaire intime — mauvais traitement à l’égard d’une personne vulnérable (art. 718.04 C.Cr.) — vulnérabilité accrue des victimes de sexe féminin (art. 718.201 C.Cr.) — tentative d’étranglement en présence d’un enfant mineur — absence de facteurs atténuants — coup de poing porté à l’endroit d’une femme enceinte — ordonnance de purger sa peine dans la collectivité — condamnation avec sursis — cas inapproprié — appel — norme d’intervention — erreur de principe — substitution de la peine — détention — probation — détention provisoire — crédit à accorder — application du ratio de 1,5 jour crédité par jour de détention — interdiction de communication.
PÉNAL (DROIT) — détermination de la peine — infractions contre la personne — divers — harcèlement criminel — violence conjugale — harcèlement postconjugal — nouveau partenaire de l’ex-conjointe — accusé âgé de 53 ans — interprétation de «ne met pas en danger la sécurité de la collectivité (art. 742.1 a) C.Cr.) — interprétation large — risque de récidive — critères à considérer — facteurs aggravants — mauvais traitement à l’égard d’un partenaire intime — mauvais traitement à l’égard d’une personne vulnérable (art. 718.04 C.Cr.) — vulnérabilité accrue des victimes de sexe féminin (art. 718.201 C.Cr.) — absence de facteurs atténuants — ordonnance de purger sa peine dans la collectivité — condamnation avec sursis — cas inapproprié — appel — norme d’intervention — erreur de principe — substitution de la peine — détention — probation — détention provisoire — crédit à accorder — application du ratio de 1,5 jour crédité par jour de détention — interdiction de communication.
PÉNAL (DROIT) — détermination de la peine — principes généraux — nature des peines — ordonnance de purger sa peine dans la collectivité — condamnation avec sursis — cas inapproprié — interprétation de «ne met pas en danger la sécurité de la collectivité» (art. 742.1 a) C.Cr.) — interprétation large — risque de récidive — critères à considérer — dénonciation — dissuasion — violence conjugale — appel — erreur de principe — substitution de la peine — détention — peine concurrente — peine consécutive — voies de fait — harcèlement criminel.
Appel de la peine. Accueilli.
L’appelant se pourvoit à l’encontre d’un jugement de la Cour du Québec ayant condamné l’intimé à purger une peine d’emprisonnement totale de 18 mois avec sursis, suivie de 24 mois de probation, pour des infractions de harcèlement et de voies de fait commises à l’endroit de sa conjointe durant la vie commune et de harcèlement à l’égard de cette dernière et de son nouveau conjoint 6 ans après la rupture.
Décision
La juge de première instance a commis 2 erreurs de principe ayant eu une incidence sur la peine en omettant d’évaluer correctement le risque que l’imposition d’une peine avec sursis poserait pour la collectivité. Premièrement, elle a limité de façon déraisonnable la portée de ce terme en estimant que, puisque l’intimé avait commis les infractions à l’égard de sa conjointe dans un contexte conjugal, la collectivité n’était pas visée. Or, la sécurité du public ne concerne pas exclusivement la collectivité dans son ensemble: elle peut viser 1 seule personne. La juge a ainsi dénaturé le test applicable.
Deuxièmement, la juge n’a pas évalué le risque de récidive de l’intimé ou, à tout le moins, elle a omis d’accorder suffisamment d’importance à un cumul d’éléments pertinents. Or, même si l’on devait considérer qu’elle a pris en compte certains facteurs pour évaluer le risque de récidive de l’intimé, ce que la Cour ne conclut pas, ceux-ci ne suffiraient pas pour contrebalancer les facteurs défavorables et déterminants qui ont été retenus, dont la longue période infractionnelle, les antécédents judiciaires en semblable matière de l’intimé, les circonstances du harcèlement que celui-ci a fait subir à son ex-conjointe et au nouveau conjoint de cette dernière, son absence d’introspection et le fait qu’il est demeuré détenu durant son procès. Par ailleurs, la juge n’a procédé à aucune analyse de la gravité du préjudice susceptible de découler d’une récidive, à supposer qu’elle ait conclu à l’existence d’un tel risque, même minime.
Ces erreurs justifient l’intervention de la Cour. Concernant la gravité subjective et le degré de culpabilité morale de l’intimé, la juge a commis une erreur de principe en la qualifiant de «moyenne», et ce, sans faire de distinctions entre chacun des gestes infractionnels. Or, le degré de culpabilité morale de l’intimé en lien avec les voies de fait, y compris celles en lien avec le coup de poing qu’il a porté au ventre de la victime durant sa grossesse et sa tentative d’étranglement à son endroit, est élevé, notamment parce qu’elles sont survenues durant une longue période ponctuée d’autres gestes de violence physique.
Par ailleurs, la Cour doit prendre en compte le contexte de violence conjugale et postconjugale ainsi que l’importance des objectifs de dissuasion et de dénonciation en la matière, auxquels s’ajoutent les considérations associées à la vulnérabilité des victimes de violence conjugale de sexe féminin. Ces considérations revêtent par ailleurs une importance particulière lorsque des voies de fait sont commises aux dépens d’une femme enceinte.
En l’espèce, l’imposition d’une peine d’emprisonnement totale de 18 mois, soit 12 mois pour les voies de fait, 9 mois concurrents pour le harcèlement criminel commis durant la vie commune et 6 mois consécutifs pour le harcèlement ayant suivi la rupture, constitue une peine juste et appropriée. En ce sens, il y a lieu de substituer aux 10 mois de peine avec sursis qui doivent encore être purgés par l’intimé une peine de 9 mois d’emprisonnement. Celle-ci, après la prise en considération des jours de détention provisoire purgés par l’intimé, est ajustée à 6 mois.
Le texte intégral de la décision est disponible <a href="http://citoyens.soquij.qc.ca/ID=11877C700C2851DDA50219B4F988C816">ici</a>
The post <a href="https://www.slaw.ca/2024/04/07/summaries-sunday-soquij-523/">Summaries Sunday: SOQUIJ</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/07/summaries-sunday-soquij-523/feed/</wfw:commentRss>
<slash:comments>0</slash:comments>
</item>
<item>
<title>Environmental Regulation Is Not “Constructive Expropriation”</title>
<link>https://www.slaw.ca/2024/04/05/environmental-regulation-is-not-constructive-expropriation/</link>
<comments>https://www.slaw.ca/2024/04/05/environmental-regulation-is-not-constructive-expropriation/#respond</comments>
<dc:creator><![CDATA[Annette Demers]]></dc:creator>
<pubDate>Fri, 05 Apr 2024 19:53:56 +0000</pubDate>
<category><![CDATA[Substantive Law]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106698</guid>
<description><![CDATA[On April 4, 2024, the Alberta Court of Appeal released its decision in <a href="https://www.canlii.org/en/ab/abca/doc/2024/2024abca105/2024abca105.html" rel="noopener" target="_blank">Altius Royalty Corporation v Alberta, 2024 ABCA 105 (CanLII)</a>.
The appellants own a royalty interest in a coal mine. In 2014 they acquired royalty interests in the Genesee coal mine. This coal fuels the Genesee power plant in Alberta. 
By 2012 federal performance standards, the end of life of the three coal-fired plants was determined to be 2039, 2044 and 2055 (para 3).
They claim their interest was constructively expropriated (paras 2 and 5) when the government of Canada amended the regulations to require the . . . <a href="https://www.slaw.ca/2024/04/05/environmental-regulation-is-not-constructive-expropriation/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/05/environmental-regulation-is-not-constructive-expropriation/">Environmental Regulation Is Not “Constructive Expropriation”</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[On April 4, 2024, the Alberta Court of Appeal released its decision in <a href="https://www.canlii.org/en/ab/abca/doc/2024/2024abca105/2024abca105.html" rel="noopener" target="_blank">Altius Royalty Corporation v Alberta, 2024 ABCA 105 (CanLII)</a>.
The appellants own a royalty interest in a coal mine. In 2014 they acquired royalty interests in the Genesee coal mine. This coal fuels the Genesee power plant in Alberta. 
By 2012 federal performance standards, the end of life of the three coal-fired plants was determined to be 2039, 2044 and 2055 (para 3).
They claim their interest was constructively expropriated (paras 2 and 5) when the government of Canada amended the regulations to require the performance standard for coal-fired plants to be met no later than 2030 and the government of Alberta introduced its Climate Leadership Plan to phase out coal-fired electricity generation emissions by 2030 (para 4).
“In 2018, the appellants filed a statement of claim against the respondents, Canada and Alberta, alleging they had constructively expropriated their royalty interest without compensation.” (para 5)
The application was summarily dismissed; see: <a href="https://www.canlii.org/en/ab/abqb/doc/2021/2021abqb3/2021abqb3.html" rel="noopener" target="_blank">Altius Royalty Corporation v Alberta, 2021 ABQB 3 (CanLII).</a>
That decision was upheld on appeal to a chambers judge; see: <a href="https://www.canlii.org/en/ab/abqb/doc/2022/2022abqb255/2022abqb255.html" rel="noopener" target="_blank"> Altius Royalty Corporation v Her Majesty the Queen in Right of Alberta, 2022 ABQB 255 (CanLII)</a>.
“At issue in this appeal is the first requirement in the CPR/Annapolis test: an acquisition of a beneficial interest in the property or flowing from it, or as stated in Annapolis, an acquisition of an advantage in respect of private property. Here, the appellants assert the advantage flowing to governments is “avoided healthcare and environmental expenses”. They seem to say that because the governments assigned a dollar figure to the healthcare and environmental benefits, the alleged advantage is a proprietary one.” (Appeal, para 29)
Ultimately, the Court of Appeal upheld the lower courts’ decisions, stating: 
“Like Canada, Alberta received no advantage flowing from the appellants’ property. The appellants submit Alberta received benefits of the sort described in Canada’s Regulatory Impact Analysis Statement. But for the same reasons set out above, such public benefits do not satisfy the requirement that the Crown in right of Alberta acquired an advantage resulting from its actions.” (para 40).
Ecojustice was party to the appeal and has <a href="https://ecojustice.ca/news/constructive-taking-or-constructive-faking-when-regulations-stop-them-polluting-some-landowners-are-suing-for-millions/?utm_campaign=Breaking%20news&utm_medium=email&_hsenc=p2ANqtz-8edtm8UOkttZ63CuQFg4qSoiV9VKIP7j0oGUqNAOSxbjOSA5eiCXxunL8HukfS1zrzldq4RWSHGOVkTH21B2vSphNC0Q&_hsmi=301307080&utm_content=301307079&utm_source=hs_email" rel="noopener" target="_blank">commentary explaining the trial decision</a> and the <a href="https://ecojustice.ca/news/ecojustice-reacts-to-alberta-court-of-appeal-decision-on-constructive-taking-case/?utm_campaign=Breaking%20news&utm_medium=email&_hsenc=p2ANqtz--hWzftKibwG8P8ldfQJ_kEyOunGeP9NCmPGW6QMV9ixyXiuLs_FIZYJM7nTnWQvf-sPxskzfRTqAF5RTxAp6_sKp84lg&_hsmi=301307080&utm_content=301307079&utm_source=hs_email" rel="noopener" target="_blank">appeal decision</a>.
They also note that another “constructive expropriation” case is awaiting a ruling from the Supreme Court of Canada brought forward by the Lynch family of Newfoundland on a water regulation matter: 
<a href="https://www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas=40302" rel="noopener" target="_blank">City of St. John’s v Wallace Lynch, et al (judgement reserved or rendered with reasons to follow, 16 November 2023, 40302).</a>
The post <a href="https://www.slaw.ca/2024/04/05/environmental-regulation-is-not-constructive-expropriation/">Environmental Regulation Is Not “Constructive Expropriation”</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/05/environmental-regulation-is-not-constructive-expropriation/feed/</wfw:commentRss>
<slash:comments>0</slash:comments>
</item>
<item>
<title>Friday Jobs Roundup</title>
<link>https://www.slaw.ca/2024/04/05/friday-jobs-roundup-169/</link>
<comments>https://www.slaw.ca/2024/04/05/friday-jobs-roundup-169/#respond</comments>
<dc:creator><![CDATA[Administrator]]></dc:creator>
<pubDate>Fri, 05 Apr 2024 19:18:26 +0000</pubDate>
<category><![CDATA[Friday Jobs Roundup]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106697</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png">
Each Friday, we share the latest job listings from Slaw Jobs, which features employment opportunities from across the country. Find out more about these positions by following the links below, or <a href="https://jobs.slaw.ca/about/">learn how you can use Slaw Jobs</a> to gain valuable exposure for your job ads, while supporting the great Canadian legal commentary at Slaw.ca.
Current postings on Slaw Jobs:
<ul>
<li><a href="https://jobs.slaw.ca/job/director-of-policing-oversight-and-accountability/">Director of Policing, Oversight and Accountability</a> | Head Office in Westbank or any Indigenous Justice Centre, Canada 
(BC First Nations Justice Council)</li>
<li><a href="https://jobs.slaw.ca/job/family-lawyer-chilliwack-bc/">Family Lawyer</a> (Full-time) | Chilliwack, BC 
(Waterstone Law Group LLP)</li>
<li><a href="https://jobs.slaw.ca/job/accountant-chilliwack-bc/">Accountant</a> (Full-time) | Chilliwack, BC 
(Waterstone Law Group </li>
</ul>
 . . . <a href="https://www.slaw.ca/2024/04/05/friday-jobs-roundup-169/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/05/friday-jobs-roundup-169/">Friday Jobs Roundup</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png"> <div class="content-wrap">
Each Friday, we share the latest job listings from Slaw Jobs, which features employment opportunities from across the country. Find out more about these positions by following the links below, or <a href="https://jobs.slaw.ca/about/">learn how you can use Slaw Jobs</a> to gain valuable exposure for your job ads, while supporting the great Canadian legal commentary at Slaw.ca.
Current postings on Slaw Jobs:
<ul>
<li><a href="https://jobs.slaw.ca/job/director-of-policing-oversight-and-accountability/">Director of Policing, Oversight and Accountability</a> | Head Office in Westbank or any Indigenous Justice Centre, Canada 
(BC First Nations Justice Council)</li>
<li><a href="https://jobs.slaw.ca/job/family-lawyer-chilliwack-bc/">Family Lawyer</a> (Full-time) | Chilliwack, BC 
(Waterstone Law Group LLP)</li>
<li><a href="https://jobs.slaw.ca/job/accountant-chilliwack-bc/">Accountant</a> (Full-time) | Chilliwack, BC 
(Waterstone Law Group LLP)</li>
</ul>
</div>
The post <a href="https://www.slaw.ca/2024/04/05/friday-jobs-roundup-169/">Friday Jobs Roundup</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/05/friday-jobs-roundup-169/feed/</wfw:commentRss>
<slash:comments>0</slash:comments>
</item>
<item>
<title>When Practicing Law Is Slow Death</title>
<link>https://www.slaw.ca/2024/04/05/when-practicing-law-is-slow-death/</link>
<comments>https://www.slaw.ca/2024/04/05/when-practicing-law-is-slow-death/#comments</comments>
<dc:creator><![CDATA[Ian Hu]]></dc:creator>
<pubDate>Fri, 05 Apr 2024 11:00:33 +0000</pubDate>
<category><![CDATA[Practice of Law]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106467</guid>
<description><![CDATA[It started as soon as I began my law career as an articling student. A lawyer gave me a task on Friday due Monday, meaning I would lose my weekend. I felt a little bit of pride – who, little old me, tasked with something so important? But I soon learned what is urgent is rarely important, and important rarely urgent. Having “uncovered every rock” and discovered nothing further, I watched my research memo fall into the abyss of make-work legal projects, more for show and profit, productivity measured more in money than in legal progress. I think I gained . . . <a href="https://www.slaw.ca/2024/04/05/when-practicing-law-is-slow-death/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/05/when-practicing-law-is-slow-death/">When Practicing Law Is Slow Death</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[It started as soon as I began my law career as an articling student. A lawyer gave me a task on Friday due Monday, meaning I would lose my weekend. I felt a little bit of pride – who, little old me, tasked with something so important? But I soon learned what is urgent is rarely important, and important rarely urgent. Having “uncovered every rock” and discovered nothing further, I watched my research memo fall into the abyss of make-work legal projects, more for show and profit, productivity measured more in money than in legal progress. I think I gained 15 pounds that year.
Upon finishing articling I vowed to work as little as possible beyond the 9-to-5 and on the weekends. No wonder, then, that I was drawn to contingency work, where profit margins made the 4-hour workweek seem like a dream within reach. But I broke my vow too soon. The pull of clients and their files ran on a 24-hour clock. I thought about my files going to sleep, and worse, when I woke up, let alone the random pings from clients, opposing counsel, and my colleagues. I was reminded of how much I loved chess as a child, and how much I hated it as I improved, studying the game and thinking about it all the time. Inevitably there was the 6-week trial which demanded even the worst, laziest lawyer to work into the night to prepare for the next day. And so my free time disappeared slowly, insidiously. My colleagues and fellow classmates walked the same path into weddings and houses, reaping the spoils of disposable income in the busiest time of our lives. I did not fail, however, to see my elders falling into a path of failed marriages, children who had to schedule phone calls with assistants just to talk to their parents, strip clubs on trips out of town, alcoholism run rampant, a miscellany of misbehaviour. As for me, I was rewarded with a generous salary, another 30 pounds, and a vow to find a new direction.
Feeling the weight in my legs as I stood up out of bed, and labouring to walk up a set a of stairs, in-house counsel proved more hospitable, equipped with elevators and without billable hours. But to my dismay I saw many a co-worker on automatic as if already put out to pasture, willing to sacrifice the excitement of private practice for steady pay and a retirement kitty. The stagnant atmosphere was initially welcome, but gave way soon to a familiar ennui. Could the gladiator in me ever find peace? In the meantime my fellow classmates were progressing further, making partner, invites to conferences, winning awards, and making more money in a year than I made in three. The years passed but the sacrifice continued to show. Those who wanted to be married remained unmarried, going from one failed relationship to another, lacking the time and commitment and love to give. Those who once stood as paragons of health and beauty now sat tired and bedraggled, barely able to walk a 5k they once would have ran at a moment’s notice. I counted myself among the fortunate who had gained more than I lost, but I had lost enough, including my health, and precious time and love for my family and my self.
Everything compounds. Not just for the better, but for the worse as well. In finance it is a beautiful concept that a small gain of eight percent a year can double an investment in less than a decade. In law my abilities improved exponentially every year. I fondly remember turning the screws on a witness in cross-examination in my fifth year of practice, and writing a two-paragraph mediation memo sufficing to settle the file in my tenth year of practice. But my health deteriorated at the same time with each gained pound, with each lost hour sitting, finishing work too exhausted to exercise, too exhausted to spend time enjoying life. Vacations were a study in recovery, not enjoyment. Mentally, finding sadness in my surroundings and my self, in the plight of the profession, in the lack of equity and diversity and inclusion in our lives, and in the grind of daily life, the sadness compounds. Little things that work against me grow, just as the little things that work for me.
Ultimately I stepped away from practice. After some fifteen years I found solace at my alma mater helping law students find jobs. The energy and vitality of enlightened and woke students lifted me in a way I had forgotten was possible. They were thankful for the help I provided, and I was happy to play a part in their dreams. I can only hope they embrace their enlightenment, demand better from their employers, and implement the dreams they wanted for themselves when they become the employers. Practicing law can be a slow death. I hope, in whatever roles we play, we can make the work more amenable to life.
The post <a href="https://www.slaw.ca/2024/04/05/when-practicing-law-is-slow-death/">When Practicing Law Is Slow Death</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/05/when-practicing-law-is-slow-death/feed/</wfw:commentRss>
<slash:comments>1</slash:comments>
</item>
<item>
<title>The Perils of Remaining Silent</title>
<link>https://www.slaw.ca/2024/04/04/the-perils-of-remaining-silent/</link>
<comments>https://www.slaw.ca/2024/04/04/the-perils-of-remaining-silent/#respond</comments>
<dc:creator><![CDATA[Marie-Yosie Saint-Cyr, First Reference Managing Editor]]></dc:creator>
<pubDate>Thu, 04 Apr 2024 16:06:22 +0000</pubDate>
<category><![CDATA[Case Comment]]></category>
<category><![CDATA[Substantive Law]]></category>
<category><![CDATA[Substantive Law: Judicial Decisions]]></category>
<category><![CDATA[administrative tribunals]]></category>
<category><![CDATA[Default judgment]]></category>
<category><![CDATA[Ontario Human Rights Code]]></category>
<category><![CDATA[Ontario Human Rights Tribunal]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106664</guid>
<description><![CDATA[Written by Daniel Standing, LL.B., Content Editor, First Reference Inc.
The interim decision of Caroline Sand, Member of the Human Rights Tribunal of Ontario in <a href="https://www.canlii.org/en/on/onhrt/doc/2024/2024hrto233/2024hrto233.html" target="_blank" rel="noopener">2024 HRTO 233 (CanLII) </a>shows what can happen when a party is invited to participate but decides not to. As it turns out, the technique of putting one’s head in the sand works for ostriches but not for employers who seek to avoid liability for human rights complaints.
Background
The matter arose out of a sex-based human rights complaint by an employee against her former employer, a social club. The employer had numerous opportunities to . . . <a href="https://www.slaw.ca/2024/04/04/the-perils-of-remaining-silent/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/04/the-perils-of-remaining-silent/">The Perils of Remaining Silent</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[Written by Daniel Standing, LL.B., Content Editor, First Reference Inc.
The interim decision of Caroline Sand, Member of the Human Rights Tribunal of Ontario in <a href="https://www.canlii.org/en/on/onhrt/doc/2024/2024hrto233/2024hrto233.html" target="_blank" rel="noopener">2024 HRTO 233 (CanLII) </a>shows what can happen when a party is invited to participate but decides not to. As it turns out, the technique of putting one’s head in the sand works for ostriches but not for employers who seek to avoid liability for human rights complaints.
<h3>Background</h3>
The matter arose out of a sex-based human rights complaint by an employee against her former employer, a social club. The employer had numerous opportunities to participate but consistently chose not to engage. It initially responded to the application with a Form 2 filing (Response) but failed to participate further. Despite mediation attempts and multiple communications from the Tribunal, including reminders and invitations to case management conferences, the respondents did not respond. Even after its counsel indicated they were no longer representing them, the respondents remained unresponsive to communications from the Tribunal. Despite clear warnings and final notices offering them a chance to participate, the respondents did not reply. Their lack of engagement ultimately led to a default situation in the proceedings.
<h3>The Tribunal’s decision</h3>
Satisfied the employer received all relevant documents and notices, the Tribunal was left little choice but to conclude the employer’s absence was of its own choosing. This, in turn, led to a three-pronged ruling: the employer was deemed to have accepted the allegations made against it, it waived its right to participate, and it would receive no further notice respecting the application.
As this was an interim decision, the Tribunal scheduled a subsequent one-day hearing to consider the merits of the application.
<h3>Key takeaways</h3>
Parties’ participatory rights before administrative tribunals exist for good reason: they ensure procedural fairness by giving everyone involved a chance to be heard. With that opportunity comes risk, particularly if the respondent remains silent and fails to engage. In those situations, depending on the legislation and the Tribunal’s rules of procedure, the respondent could be deemed to have accepted the complaint, greatly lessening the applicant’s burden.
While no one is forced to play, the odds are stacked against the party who ignores the Tribunal’s invitation.
The post <a href="https://www.slaw.ca/2024/04/04/the-perils-of-remaining-silent/">The Perils of Remaining Silent</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/04/the-perils-of-remaining-silent/feed/</wfw:commentRss>
<slash:comments>0</slash:comments>
</item>
<item>
<title>Thursday Thinkpiece: Suing for Silence : Sexual Violence and Defamation Law</title>
<link>https://www.slaw.ca/2024/04/04/thursday-thinkpiece-suing-for-silence-sexual-violence-and-defamation-law/</link>
<comments>https://www.slaw.ca/2024/04/04/thursday-thinkpiece-suing-for-silence-sexual-violence-and-defamation-law/#respond</comments>
<dc:creator><![CDATA[Administrator]]></dc:creator>
<pubDate>Thu, 04 Apr 2024 11:00:21 +0000</pubDate>
<category><![CDATA[Justice Issues]]></category>
<category><![CDATA[Thursday Thinkpiece]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106563</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png">
Periodically on Thursdays, we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.
<a href="http://www.ubcpress.ca/suing-for-silence">Suing for Silence : Sexual Violence and Defamation Law</a>
<img loading="lazy" decoding="async" class="alignright size-medium wp-image-106565" src="https://www.slaw.ca/wp-content/uploads/2024/03/Suing-for-silence-267x400.jpg" alt="" width="267" height="400" srcset="https://www.slaw.ca/wp-content/uploads/2024/03/Suing-for-silence-267x400.jpg 267w, https://www.slaw.ca/wp-content/uploads/2024/03/Suing-for-silence-133x200.jpg 133w, https://www.slaw.ca/wp-content/uploads/2024/03/Suing-for-silence.jpg 533w" sizes="(max-width: 267px) 100vw, 267px" />Author: Mandi Gray
Publisher: UBC Press 
Publication Date: March 1, 2024 
ISBN: 9780774869171 
Page count: 180 pages; 6 x 9
Excerpt: Introduction
In summer 2017, I received a Facebook message from Lynn, a Canadian tattoo artist in her late twenties. Women from all . . . <a href="https://www.slaw.ca/2024/04/04/thursday-thinkpiece-suing-for-silence-sexual-violence-and-defamation-law/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/04/thursday-thinkpiece-suing-for-silence-sexual-violence-and-defamation-law/">Thursday Thinkpiece: Suing for Silence : Sexual Violence and Defamation Law</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png"> Periodically on Thursdays, we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.
<a href="http://www.ubcpress.ca/suing-for-silence">Suing for Silence : Sexual Violence and Defamation Law</a>
<img loading="lazy" decoding="async" class="alignright size-medium wp-image-106565" src="https://www.slaw.ca/wp-content/uploads/2024/03/Suing-for-silence-267x400.jpg" alt="" width="267" height="400" srcset="https://www.slaw.ca/wp-content/uploads/2024/03/Suing-for-silence-267x400.jpg 267w, https://www.slaw.ca/wp-content/uploads/2024/03/Suing-for-silence-133x200.jpg 133w, https://www.slaw.ca/wp-content/uploads/2024/03/Suing-for-silence.jpg 533w" sizes="(max-width: 267px) 100vw, 267px" />Author: Mandi Gray
Publisher: UBC Press 
Publication Date: March 1, 2024 
ISBN: 9780774869171 
Page count: 180 pages; 6 x 9
<h2>Excerpt: Introduction</h2>
In summer 2017, I received a Facebook message from Lynn, a Canadian tattoo artist in her late twenties. Women from all over the world often sent me messages, to share stories like my own, about reporting sexual violence to the police, their university, or their workplace and being met with institutional betrayal. Lynn had a different experience than those I typically heard. Several years earlier, Lynn had been working in France as an apprentice tattoo artist. Her mentor bullied and harassed her. Over time, the bullying and harassment escalated to repeated sexual harassment and, eventually, rape. Her work visa had expired, so she was working under the table, which made her especially vulnerable to his abuse. Eventually, she decided she could no longer tolerate his abuse. She reported him to the police for illegal employment practices and numerous instances of sexual violence. The police laid criminal charges. The case went to trial, and he was acquitted.
Unknown to Lynn, following an acquittal for rape in France, the accused can proceed with both criminal and civil charges against their accuser. Her mentor decided to pursue this option. But Lynn was back in Canada. She received a notice from the Canadian government, informing her that she was being sued and could face jail time for reporting the assault to the police. After a six-year legal battle, Lynn was acquitted of the criminal charges and the lawsuit was unsuccessful. Despite the apparent legal victory, Lynn remained fearful of talking about what had happened to her. The courts deemed that there was not enough evidence to convict her mentor of rape, but they also decided that there was not enough evidence to determine that her allegation was false. Fearful of facing further legal retaliation, she was, effectively, silenced. There were other repercussions. She had to take time of from her art practice to travel to France for court dates, causing her financial problems and costing her professional opportunities at a pivotal time in her career.
At the time, I believed these types of legal actions were an injustice happening elsewhere, not in Canada. Later that summer, I met another woman who shared with me that she had been sued after reporting sexual violence. It happened in Toronto. Like Lynn, she told me that being sued instilled so much fear in her that she self-censored to the point where she even avoided having general conversations among friends about sexual violence.
I had no idea it was possible to be sued for making a formal report of sexual violence. At the time, within both the antiviolence community and feminist academic literature, there was a lack of discussion about the possibility of civil legal action for reporting sexual violence. Ten, that fall, the viral #MeToo hashtag brought sexual violence to the forefront of global discussion. Although the movement was heralded as a sign of progress for women internationally, the people encouraged by the movement to come forward experienced backlash. One mechanism of this backlash was the use of defamation lawsuits. Indeed, they became so common that the New York Times declared in 2020 that defamation lawsuits were the new legal battleground for litigating sexual violence cases: “Women and men on both sides of #MeToo are embracing the centuries-old tool of defamation lawsuits, opening an alternative battlefield for accusations of sexual misconduct.” According to the New York Times, plaintiffs were using defamation law for the typical purpose of dissuading speech that results in reputational damage. But they were also using it to “endorse their version of disputed events.”
In 2021, the United Nations released the Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, which highlighted the global rise in defamation lawsuits, specifically against those who had publicly denounced perpetrators of sexual violence. It stated, “Weaponizing the justice system to silence women feeds impunity while also undermining free speech.” Evidence suggests that this is a global problem. Similar lawsuits have been reported by news media in countries such as the United States, Peru, China, South Korea, India, Australia, England, and France. In the last five years, there have been numerous high-profile defamation lawsuits initiated by powerful men such as Hollywood producer Brett Ratner, Oxford professor Tariq Ramadan, businessman Robert Herjavec, CTV reporter Paul Bliss, poet Jeramy Dodds, writer Stephen Elliott, producer Chris Nelson, musician Marilyn Manson, and popstar Justin Bieber. Famous women who have been public about their experiences of sexual violence have also been sued for defamation, including Taylor Swift and Kesha.
The most notable defamation lawsuit to date is probably actor Johnny Depp’s defamation action against his famous ex-wife Amber Heard. In 2016, Heard fled for divorce from Depp and sought a temporary restraining order alleging physical abuse. A UK newspaper labelled Depp a “wife beater,” which led Depp to sue the newspaper, a case he lost. The judge ruled that the newspaper was accurate in reporting that Depp had been violent in his relationship with Heard and referred to fourteen separate incidents. In the United States, in an op-ed for the Washington Post about how women are treated after reporting domestic violence, Heard wrote: “I became a public figure representing domestic violence, and I felt the full force of our culture’s wrath for women who speak out.” Heard did not name Depp in her article. In 2019, Depp sued Heard for the article. In 2021, Heard countersued. In April 2022, the defamation trial began before a jury.
The six-week trial quickly became a public spectacle as the legal proceedings were livestreamed across social media platforms. Social media content creators took clips of the testimony to make fun of Heard while exonerating Depp. Each day of the trial, hashtags such as #AmberHeardIsALiar and #AmberHeardAbuser trended on social media. Depp supporters globally harassed and attacked anyone who supported Heard or questioned Depp’s claims of innocence. The jurors ruled that both Depp and Heard were liable for defamation. They awarded Depp $15 million in damages, and Heard $2 million. Heard appealed the decision, which was settled in December 2022. She released a public statement declaring that she’d decided to settle because she’d lost faith in the American legal system, a system in which her “unprotected testimony served as entertainment and social media fodder.”
The legal action against Heard, coupled with social media commentary, made a loud statement to people who have experienced sexual violence and those who will experience sexual violence in the years to come: keep quiet or risk serious legal action and social consequences. The more privileged and powerful the man, the more severe the consequences, as these men can harass and abuse with impunity.
While defamation lawsuits tend to be a tool for powerful, rich, and famous men, it is important to stress that they are not the only men who initiate them. Given the resources required to initiate legal action, the men are typically well resourced, but not necessarily famous or wealthy. Nor is it only white, privileged, celebrity women who are being sued. Such cases are simply more likely to be reported by the media. The TIME’s Up Legal Defense Fund, initiated following #MeToo to support Americans who have experienced workplace sexual violence, reported that 33 of the 193 cases they were supporting involved workers who came forward and were then sued for defamation. Many defendants in these legal actions are not privileged and do not have access to the financial resources necessary for legal representation. Access to legal representation is further complicated for survivors experiencing intersecting forms of structural marginalization such as racism, colonialism, ableism, and homophobia.
This book focuses on the experiences of Canadian women who have been sued or threatened with a lawsuit for disclosing or reporting sexual violence or supporting someone who had experienced sexual violence. The research was guided by three central questions: What are the consequences of defamation lawsuits at both the individual and societal levels? To what extent are these lawsuits silencing public discourse about sexual violence? And, finally, are they strategic lawsuits against public participation (SLAPPs)?
The book demonstrates that abusive men can strategically use defamation law to silence accusations of sexual violence and recast themselves as the “true victims” of “false allegations.” When abusive men take legal action against their accusers, the action provides a legitimate avenue, such as the courts, to continue their abusive behaviour. This is not to suggest that men who have been falsely accused of sexual violence should be denied the ability to vindicate their reputations; rather, we must keep in mind that while false accusations do occur, they are incredibly rare.
In Canada, there is a low threshold for what constitutes a defamatory statement: as long as a communication “would cause the plaintiff to lose respect or esteem in the eyes of others,” that communication can be cause for a defamation lawsuit. Therefore, the law of defamation often works in favour of the plaintiff – the person who initiated the lawsuit – because it puts the onus on the defendant to justify their statements, a task that has particular challenges in sexual violence cases, particularly in a legal system demonstrably shaped by discriminatory rape myths.
I employ Jennifer Freyd’s concept of DARVO (deny, attack, and reverse victim and offender) to understand men’s motivation for initiating defamation lawsuits. This concept captures the disingenuous ways that abusive men make use of legal mechanisms to represent themselves as victims while undermining the credibility of the women who have called them out for their abusive behaviour. Abusive men will often threaten defamation lawsuits and make false accusations against the individual who confronted them to further situate themselves as the victims of an unfair attack. This is done strategically to create the impression that they are the real victim and the person who has made the complaint about their behaviour is the offender. The more actions that are taken to hold the offender accountable, the more victimhood the abuser can claim. Freyd acknowledges that men who are innocent will defend themselves against false allegations, but it is abusive men who engage numerous forms of retaliation against their accusers to shift the narrative away from the allegations and toward an investigation into their victimhood because of false allegations.
<h2>The Myth of False Accusations as a Common Occurrence</h2>
As the #MeToo movement gained traction, a loud antifeminist backlash took over. The countermovement centred white male victimhood by claiming false accusations had victimized these men. It successfully shifted the focus from experiences of gendered violence to the inaccurate notion that men should be worried about being falsely accused of sexual violence. For example, the counterhashtag #HimToo rose to prominence after a woman tweeted that the #MeToo movement had resulted in her son no longer going on dates with women alone “due to the current climate of false sexual accusations by radical feminists with an axe to grind.” The #HimToo hashtag recirculated after Dr. Christine Blasey Ford came forward with allegations of sexual violence against US Supreme Court nominee Brett Kavanaugh. Media pundits and politicians, including former US president Donald Trump, expressed concern that men’s lives were being unfairly destroyed by false allegations of sexual violence. Canadian media pundits similarly linked male victimhood to false allegations. These perspectives perpetuate the harmful myth that false allegations are common and that protecting men’s reputations should take priority over addressing the pervasive and global issue of sexual violence. These perspectives also tend to see an acquittal or an inconclusive investigative finding as evidence of a false allegation. According to law professor Constance Backhouse,
<blockquote>“Not guilty” does not mean you are innocent. It means that the Crown could not prove your guilt beyond a reasonable doubt. And as we know in a sexist legal system, individuals accused of sexual crimes may quite often be guilty, yet the prosecutor is unable to prove it to a jury and judge beyond a reasonable doubt. Trial judges will often say, “I believe the complainant, but the evidence still leaves me with a reasonable doubt regarding the conviction.” Our criminal justice system is quite capable of interpreting the Criminal Code in a sexist way. Consequently, it doesn’t follow that after an acquittal anyone should proclaim that the complainant “lied.” It does not follow. It is not the same thing. It seems to me that we should be careful about allowing the accused to claim, “I’m innocent.”</blockquote>
The problem is that there’s no agreement on what constitutes a false allegation. According to psychologist David Lisak, the most comprehensive and accurate definition of a false allegation of sexual assault comes from the International Association of Chiefs of Police:
<blockquote>The determination that a report of sexual assault is false can be made only if the evidence establishes that no crime was committed or attempted. This determination can be made only after a thorough investigation. This should not be confused with an investigation that fails to prove a sexual assault occurred. In that case the investigation would be labeled unsubstantiated. The determination that a report is false must be supported by evidence that the assault did not happen.</blockquote>
Despite the clarity in this definition, the line between a false accusation and the absence of evidence to substantiate a claim of sexual violence is often blurred in practice. Media and popular discourses tend to conflate false allegations with acquittals and cases unproven by police or campus investigations in a self-perpetuating cycle that keeps the myth that women frequently lie about sexual violence alive. The corollary to this widespread myth is that men and their reputations are the victims of women’s mendacity. Assumptions about women’s capacity to lie are also intertwined with stereotypes about race, gender, and sexuality. The narratives of survivors who experience intersecting forms of structural marginalization are regarded as less credible.
Canadian feminist antiviolence advocates have long recognized that the police’s tendency to declare women’s accusations unfounded is a major barrier to reporting. The frequency with which police dismiss claims of sexual assault came to the public’s attention when journalist Robyn Doolittle, investigating for the Globe and Mail, found that police dismiss sexual assault reports more than any other crime. The Canadian Centre for Justice Statistics Policing Services Program states that an “incident is ‘unfounded’ if it has been determined that no violations of the law took place at that time or location.” Doolittle found that nearly one in five reports of sexual assault are deemed unfounded in Canada. This is nearly double the rate for physical assault and dramatically higher than the rates for all other crimes. When unfounded cases are considered part of the total count of sexual assault charges reported, only 34 percent of such reports result in charges being laid. This staggering rate of dismissal by police, acting as gatekeepers to the criminal legal system, is widely condemned by feminist researchers and advocates who see it as evidence of negligence and discriminatory attitudes about women.
Societal beliefs about women who experience sexual violence also discourage women from reporting. Low reporting can partially be attributed to fear of being disbelieved. According to a 2018 survey, only 5 percent of women who experienced sexual assault reported it to the police. In comparison, 26 percent of women who were physically assaulted reported the assault. In addition to the fear of not being believed, women reported fear of retaliation, shame and embarrassment, and a belief that the experience was minor and therefore not worthy of reporting. Indigenous, Black, and racialized women commonly report revictimization by the police when they attempt to report violence. A recent study of the experiences of Indigenous women in Canada who reported sexual violence to the police found that many Indigenous women felt the police had viciously denied their experiences of violence and made them feel as if they were being interrogated for committing a crime.
Women’s reluctance to formally report to the police is, ironically, another reason that they are vulnerable to defamation lawsuits. The threat of a civil lawsuit disproportionally impacts women who feel they do not have access to formal reporting mechanisms because of systemic marginalization, which may also deter them from seeking other remedies. Toronto lawyer Lillian Cadieux-Shaw highlighted the fact that men who initiate defamation proceedings have something to gain whereas women who report “only face the prospect of harrowing litigation for their troubles.” Furthermore, “when women find out that there is also the possibility that their perpetrator may bring retaliatory litigation against them … why would any woman report?”
The decision to delay reporting or to not report at all can become “evidence” in a defamation proceeding that the sexual violence did not occur and that the complainant must be lying. This happens even though it is well known that there are numerous barriers to reporting and a host of reasons why someone may choose to pursue another avenue to justice. Knowing that the legal system will likely fail them, women may seek informal justice. Informal justice includes justice that is transformative or restorative and the use of social media.
Some of the women I interviewed sought justice outside of the legal system by using alternative means of disclosing their experiences and seeking accountability from the person who caused harm. For example, some relied on informal communication after their formal report was dismissed or minimized by authorities; others were already aware of the realities of the legal system and made active choices to avoid becoming entangled in what they saw as an inherently flawed process. Whatever their reasons, their use of alternative routes to justice made them vulnerable to being sued. Indeed, this act of agency can be re-narrated in legal proceedings to shift the blame onto women: if sexual violence actually occurred, the argument goes, it would have been reported. But reporting to the police does not automatically offer legal protection from a defamation lawsuit. To date, this is an unexplored link in feminist legal and sociolegal critiques, one that bridges the civil and criminal legal systems’ treatment of sexual violence and the vulnerability of those who experience sexual violence to the DARVO ethos in the legal system.
For antifeminist critics, the high rate of unfounded cases is proof that women frequently make false allegations. The systemic dismissal of reports of sexual assault alongside the deeply embedded myth that women frequently lie makes them especially vulnerable to being sued for defamation. Constance Backhouse expanded on the connection:
<blockquote>Every time a woman speaks about sexual coercion or sexual assault, the cultural response is, “women lie.” I would say 99.99 percent that is the initial reaction when a woman speaks. It’s almost a 100 percent pushback that “women are lying, you’re lying, women and children who speak about this lie.” Consequently, we have a culture that is at odds with reality … If you latch the ease of bringing a defamation action onto a culture that believes all women lie – they have the wind at their back. Any woman who makes those comments about a man can be labelled a liar, and a defamation suit can become just automatic. A defamation suit is the kneejerk reaction within a culture that does not believe women.</blockquote>
Despite decades of feminist intervention and plenty of evidence to suggest otherwise, there is a deeply entrenched belief that false allegations of sexual violence are a common occurrence.
<h2>Breaking the Silence and Silencing Suits</h2>
When someone is accused of defamation, the first thing most lawyers will advise is that they refrain from repeating the allegedly defamatory statements and refrain from speaking about the legal proceedings until they are concluded, a process that can take years. Lawsuits have a widespread silencing effect. The lawsuit has the power to silence those who are sued, but it also instills fear in others that, if they speak out, they will be added to the lawsuit. Even the threat of a lawsuit can remove allegations of sexual violence from the public and private domain. It chills speech at an individual level (deterring those who have experienced sexual violence from speaking up) and a systemic level (silencing media reports and public discourse on allegations and sexual violence more generally).
For this reason, I argue that these lawsuits must be regarded as SLAPPs. SLAPPs are not necessarily initiated to test a case at trial but, rather, to entangle the defendant in a long and expensive legal process while simultaneously keeping them and others quiet about the issue. At face value, these lawsuits look like ordinary civil claims, including defamation, malicious prosecution, abuse of process, conspiracy, and business torts. I argue that such lawsuits also chill public discourse about sexual violence.
Combine this chilling effect with fear of reporting and we are at risk of witnessing the disappearance of reports, disclosures, and discourse of sexual violence. This chilling effect will disproportionately harm women (who are statistically more likely to experience sexual violence) while protecting men (who are more likely to be perpetrators of sexual violence). Ultimately, redressing sexual violence must outweigh the private reputational interests of men accused of sexual violence.
Discussions about sexual violence always, in one way or another, reference silence: why women remain silent about sexual violence; the ways women are systemically silenced (for example, the police denying or minimizing reports of sexual violence); or the tactics abusive men use to ensure that their victims remain silent. Debra Delaet and Elizabeth Mills noted that “a pattern of personal and political silence in response to sexual violence is evident in diverse societies across the globe. Silence shapes the reactions of survivors as well as the institutional responses of state and non-state actors.” Indeed, more generally, silence has long been considered a feature of femininity, “a trope for oppression, passivity, emptiness, stupidity or obedience.” Speaking about sexual violence challenges existing oppressive power structures.
Breaking the silence on sexual violence has become a central tactic of feminist resistance because silencing is the “universal tactic of perpetrators, imposed on victims of this crime unlike any other.” bell hooks stresses the importance of breaking the silence:
<blockquote>Moving from silence into speech is for the oppressed, the colonized, the exploited, and those who stand and struggle side-by-side, a gesture of defiance that heals, that makes new life and new growth possible. It is that act of speech, of “talking back,” that is no mere gesture of empty words, that is the expression of our movement from object to subject – the liberated voice.</blockquote>
The #MeToo movement reignited the demand to break the silence on sexual violence. Following the viral hashtag, public discussion about sexual violence occurred on a global scale, largely attributed to social media, and became impossible to ignore. Shortly after, Time magazine named the Silence Breakers – from well-known movie stars and community organizers to hotel workers and office staff – the 2017 “Person of the Year.” This issue marked the historic significance of the #MeToo movement, noting the sheer volume of disclosures and the numerous political and legal actions being initiated internationally. The issue also recognized the intertwining of silence with sexual violence, which work together to disempower those who experience violence while protecting the perpetrators. Edward Felsenthal, editor-in-chief, said he chose the Silence Breakers as person of the year because of the incredible significance of “giving voice to open secrets, for moving whisper networks onto social networks, for pushing us all to stop accepting the unacceptable.” But as sexual violence discourse entered the public realm to an unprecedented degree, powerful men looked for ways to silence and push the allegations out of the public sphere and into obscurity. I argue that if such lawsuits continue, we will witness the disappearance of sexual violence discourse, not just in the public sphere but also in the private sphere.
The post <a href="https://www.slaw.ca/2024/04/04/thursday-thinkpiece-suing-for-silence-sexual-violence-and-defamation-law/">Thursday Thinkpiece: Suing for Silence : Sexual Violence and Defamation Law</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/04/thursday-thinkpiece-suing-for-silence-sexual-violence-and-defamation-law/feed/</wfw:commentRss>
<slash:comments>0</slash:comments>
</item>
<item>
<title>Wednesday: What’s Hot on CanLII? – March 2024</title>
<link>https://www.slaw.ca/2024/04/04/wednesday-whats-hot-on-canlii-march-2024/</link>
<comments>https://www.slaw.ca/2024/04/04/wednesday-whats-hot-on-canlii-march-2024/#respond</comments>
<dc:creator><![CDATA[Administrator]]></dc:creator>
<pubDate>Thu, 04 Apr 2024 04:33:16 +0000</pubDate>
<category><![CDATA[Wednesday: What's Hot on CanLII]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106659</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png">
At the beginning of each month, we tell you which three English-language cases and French-language cases have been the most viewed* on CanLII in the previous month and we give you a small sense of what the cases are about.
For this past month, the three most-consulted English-language decisions were:
<li>R. v. Kruk, <a href="https://canlii.ca/t/k39g6">2024 SCC 7</a> (également disponible en français <a href="https://canlii.ca/t/k39g7">ici</a>)</li>
[81] Assessments of credibility and reliability can be the most important judicial determinations in a criminal trial. They are certainly among the most difficult. This is especially so in sexual assault cases, which often involve acts that . . . <a href="https://www.slaw.ca/2024/04/04/wednesday-whats-hot-on-canlii-march-2024/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/04/wednesday-whats-hot-on-canlii-march-2024/">Wednesday: What’s Hot on CanLII? – March 2024</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png"> At the beginning of each month, we tell you which three English-language cases and French-language cases have been the most viewed* on CanLII in the previous month and we give you a small sense of what the cases are about.
For this past month, the three most-consulted English-language decisions were:
<ol>
<li>R. v. Kruk, <a href="https://canlii.ca/t/k39g6">2024 SCC 7</a> (également disponible en français <a href="https://canlii.ca/t/k39g7">ici</a>)</li>
</ol>
[81] Assessments of credibility and reliability can be the most important judicial determinations in a criminal trial. They are certainly among the most difficult. This is especially so in sexual assault cases, which often involve acts that allegedly occurred in private and hinge on the contradictory testimony of two witnesses. The trial judge, while remaining grounded in the totality of the evidence, is obliged to evaluate the testimony of each witness and to make determinations that are entirely personal and particular to that individual. Credibility and reliability assessments are also context-specific and multifactorial: they do not operate along fixed lines and are “more of an ‘art than a science’” (S. (R.D.), at para. <a href="https://www.canlii.org/en/ca/scc/doc/1997/1997canlii324/1997canlii324.html#par128">128</a>; R. v. Gagnon, <a href="https://www.canlii.org/en/ca/scc/doc/2006/2006scc17/2006scc17.html">2006 SCC 17</a>, [2006] 1 S.C.R. 621). With respect to credibility in particular, while coherent reasons are crucial, it is often difficult for trial judges to precisely articulate the reasons why they believed or disbelieved a witness due to “the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events” (Gagnon, at para. 20; see also R. v. R.E.M., <a href="https://www.canlii.org/en/ca/scc/doc/2008/2008scc51/2008scc51.html">2008 SCC 51</a>, [2008] 3 S.C.R. 3, at para. <a href="https://www.canlii.org/en/ca/scc/doc/2008/2008scc51/2008scc51.html#par28">28</a>; R. v. G.F., <a href="https://www.canlii.org/en/ca/scc/doc/2021/2021scc20/2021scc20.html">2021 SCC 20</a>, [2021] 1 S.C.R. 801, at para. <a href="https://www.canlii.org/en/ca/scc/doc/2021/2021scc20/2021scc20.html#par81">81</a>). The task is further complicated by the trial judge’s ability to accept some, all, or none of a witness’s testimony.
[82] The governing standard of review applicable to findings of credibility and reliability is well established: absent a recognized error of law, such findings are entitled to deference unless a palpable and overriding error can be shown (Gagnon, at para. <a href="https://www.canlii.org/en/ca/scc/doc/2006/2006scc17/2006scc17.html#par10">10</a>, citing Schwartz v. Canada, <a href="https://www.canlii.org/en/ca/scc/doc/1996/1996canlii217/1996canlii217.html">1996 CanLII 217 (SCC)</a>, [1996] 1 S.C.R. 254, at paras. <a href="https://www.canlii.org/en/ca/scc/doc/1996/1996canlii217/1996canlii217.html#par32">32-33</a>; H.L. v. Canada (Attorney General), <a href="https://www.canlii.org/en/ca/scc/doc/2005/2005scc25/2005scc25.html">2005 SCC 25</a>, [2005] 1 S.C.R. 401, at para. <a href="https://www.canlii.org/en/ca/scc/doc/2005/2005scc25/2005scc25.html#par74">74</a>). Credibility and reliability findings typically do not engage errors of law, as at their core they relate to the extent to which a judge has relied upon a particular factor and how closely that factor is tied to the evidence. Although such findings may be overturned on correctness if errors of law are disclosed, in most cases it is preferable to review them using the nuanced and holistic standard of palpable and overriding error — which defers to the conclusions of trial judges who have had direct exposure to the witnesses themselves.
(<a href="http://canliiconnects.org/en/cases/2024scc7">Check for commentary on CanLII Connects</a>)
<ol start="2">
<li>R. v. Bykovets, <a href="https://canlii.ca/t/k358f">2024 SCC 6</a> (également disponible en français <a href="https://canlii.ca/t/k358g">ici</a>)</li>
</ol>
[28] This appeal raises a single issue: Does a reasonable expectation of privacy attach to an IP address? In my view, the answer is yes. As I will explain, an IP address is the crucial link between an Internet user and their online activity. Thus, the subject matter of this search was the information these IP addresses could reveal about specific Internet users including, ultimately, their identity. To find that s. 8 does not extend to an IP address because police collected it only to obtain a Spencer warrant ignores the information it can reveal without a warrant. Such an analysis reflects piecemeal reasoning based on how the state intends to use the information in a specific case, contrary to the broad, purposive approach required by s. 8’s constitutional status. Nor can the analysis be limited to the privacy interests affected by what the IP address can reveal on its own, without consideration of what it can reveal in combination with other available information, particularly from third-party websites. Viewed normatively, an IP address is the key to unlocking a user’s Internet activity and, ultimately, their identity, such that it attracts a reasonable expectation of privacy. If s. 8 is to meaningfully protect the online privacy of Canadians in today’s overwhelmingly digital world, it must protect their IP addresses.
(<a href="http://canliiconnects.org/en/cases/2024scc6">Check for commentary on CanLII Connects</a>)
<ol start="3">
<li>MTCC No. 1260 v. Singh, <a href="https://canlii.ca/t/jn46q">2022 ONSC 1606</a></li>
</ol>
<div class="paragWrapper" data-lbh-p-number="40" data-lbh-p-anchor="par40" data-lbh-p-noteup-link="/en/#search/origin1=/en/on/onsc/doc/2022/2022onsc1606/2022onsc1606.html&linkedNoteup=&section1=40">
[40] Although landlord and tenant relations in Ontario are mostly governed by the <a class="reflex2-link" href="https://www.canlii.org/en/on/laws/stat/so-2006-c-17/latest/so-2006-c-17.html">Residential Tenancies Act,</a><a class="reflex2-link" href="https://www.canlii.org/en/on/laws/stat/so-2006-c-17/latest/so-2006-c-17.html"> 2006, SO 2006, c 17</a>, and proceedings before the Landlord and Tenant Board, there is some scope for orders affecting tenancies of condominium units under the <a class="reflex2-link" href="https://www.canlii.org/en/on/laws/stat/so-1998-c-19/latest/so-1998-c-19.html">Condominium Act, 1998</a>.
[41] In this case, for example, I am not concerned with the unit owner’s allegation that the tenants are in arrears of rent. That is a matter for the board.
[42] This proceeding was brought by the condominium corporation under <a class="reflex2-link" style="font-size: 1em;" href="https://www.canlii.org/en/on/laws/stat/so-1998-c-19/latest/so-1998-c-19.html#sec134_smooth">s. 134</a> of the <a class="reflex2-link" href="https://www.canlii.org/en/on/laws/stat/so-1998-c-19/latest/so-1998-c-19.html">Condominium Act, 1998</a>. The section provides for the enforcement of the statute and the condominium’s declaration, by-laws and rules against, among others, a unit owner and occupants (i.e. tenants). I have already found that the tenants’ behaviour violated s. 117 (1) of the statute. They are therefore also in breach of the general obligation to observe the terms of the statute s. 119 (1) of the act.
</div>
(<a href="http://canliiconnects.org/en/cases/2022onsc1606">Check for commentary on CanLII Connects</a>)
The three most-consulted French-language decisions were:
<ol>
<li>Organisation mondiale sikhe du Canada c. Procureur général du Québec, <a href="https://canlii.ca/t/k34qq">2024 QCCA 254</a> (also available in English <a href="https://canlii.ca/t/k358h">here</a>)</li>
</ol>
[23] Là où la <a href="https://www.canlii.org/fr/qc/legis/lois/rlrq-c-l-0.3/derniere/rlrq-c-l-0.3.html">Loi</a> innove, peut-être, c’est lorsqu’elle inclut expressément au nombre des principes constitutifs de la laïcité « l’égalité de tous les citoyens et citoyennes / the equality of all citizens ». Ce principe d’égalité, caractéristique fondamentale des sociétés démocratiques, est déjà garanti par notre droit et notamment par l’<a href="https://www.canlii.org/fr/ca/legis/lois/annexe-b-de-la-loi-de-1982-sur-le-canada-r-u-1982-c-11/derniere/annexe-b-de-la-loi-de-1982-sur-le-canada-r-u-1982-c-11.html#art15_smooth">art. 15</a> de la <a href="https://www.canlii.org/fr/ca/legis/lois/annexe-b-de-la-loi-de-1982-sur-le-canada-r-u-1982-c-11/derniere/annexe-b-de-la-loi-de-1982-sur-le-canada-r-u-1982-c-11.html">Charte canadienne</a> (en ce qui concerne l’État) ainsi que par l’<a href="https://www.canlii.org/fr/qc/legis/lois/rlrq-c-c-12/derniere/rlrq-c-c-12.html#art10_smooth">art. 10</a> de la Charte québécoise (ce dernier garantit l’exercice en toute égalité des droits reconnus par cette charte et vise les acteurs étatiques autant que les acteurs privés). Si la Loi relie le principe d’égalité à la laïcité, c’est vraisemblablement en raison des tensions entre les préceptes religieux et l’égalité, tout particulièrement l’égalité des sexes et, plus généralement, l’égalité des genres ou des identités de genre.
[24] Dans la foulée de l’affirmation de cette laïcité et des principes sur lesquels elle s’appuie, l’<a href="https://www.canlii.org/fr/qc/legis/lois/rlrq-c-l-0.3/derniere/rlrq-c-l-0.3.html#art3_smooth">art. 3</a> de la <a href="https://www.canlii.org/fr/qc/legis/lois/rlrq-c-l-0.3/derniere/rlrq-c-l-0.3.html">Loi</a>, disposition générale, enjoint à l’ensemble des institutions constitutives de l’État (c.-à-d. les institutions parlementaires, gouvernementales et judiciaires) de se conformer à l’art. 2 (et implicitement à l’art. 1) « en fait et en apparence / in fact and in appearance ». L’art. 4, qui établit le droit de toute personne à des institutions étatiques et à des services publics laïques, ajoute à cette exigence le respect de l’<a href="https://www.canlii.org/fr/qc/legis/lois/rlrq-c-l-0.3/derniere/rlrq-c-l-0.3.html#art6_smooth">art. 6</a> de la <a href="https://www.canlii.org/fr/qc/legis/lois/rlrq-c-l-0.3/derniere/rlrq-c-l-0.3.html">Loi</a> (interdiction du port de signes religieux par certaines personnes)<a href="https://www.canlii.org/fr/qc/qcca/doc/2024/2024canlii15135/2024canlii15135.html#_ftn35" name="_ftnref35">[35]</a> ainsi que celui du devoir de neutralité défini par la <a href="https://www.canlii.org/fr/qc/legis/lois/rlrq-c-l-0.3/derniere/rlrq-c-l-0.3.html">Loi</a> sur la neutralité religieuse de l’État. Sous réserve de quelques exceptions limitées, ce dernier impose principalement aux agents publics d’agir, dans l’exercice de leurs fonctions, sans privilégier ou désavantager quiconque en raison de son appartenance ou de sa non‑appartenance à une religion ou encore en raison de leurs propres convictions ou croyances religieuses ou de celles d’une personne en autorité<a href="https://www.canlii.org/fr/qc/qcca/doc/2024/2024canlii15135/2024canlii15135.html#_ftn36" name="_ftnref36">[36]</a>.
(<a href="https://canliiconnects.org/fr/cases/2024qcca254">Check for commentary on CanLII Connects</a>)
<ol start="2">
<li>Pharmaciens (Ordre professionnel des) c. Albert-Giroux, <a href="https://canlii.ca/t/k37f3">2024 QCCDPHA 6</a></li>
</ol>
<div class="paragWrapper" data-lbh-p-number="17" data-lbh-p-anchor="par17" data-lbh-p-noteup-link="/fr/#search/origin1=/fr/qc/qccdopq/doc/2024/2024qccdpha6/2024qccdpha6.html&linkedNoteup=&section1=17">
[17] Le Conseil doit répondre aux trois questions suivantes :
</div>
Q1. Sous le chef 1 de la plainte modifiée, dispose-t-il d’une preuve lui permettant de conclure que l’intimée a fait défaut de respecter les engagements qu’elle a souscrits auprès de la syndique adjointe de l’Ordre le 10 août 2019, et ce, en contravention de l’<a class="reflex2-link" href="https://www.canlii.org/fr/qc/legis/regl/rlrq-c-p-10-r-7/derniere/rlrq-c-p-10-r-7.html#art81_smooth">article 81</a> du <a class="reflex2-link" href="https://www.canlii.org/fr/qc/legis/regl/rlrq-c-p-10-r-7/derniere/rlrq-c-p-10-r-7.html">Code de déontologie des pharmaciens</a> ?
Q2. Sous les chefs 2 et 4 de la plainte modifiée, dispose-t-il d’une preuve lui permettant de conclure que l’intimée a contrevenu à l’<a class="reflex2-link" href="https://www.canlii.org/fr/qc/legis/regl/rlrq-c-p-10-r-12/derniere/rlrq-c-p-10-r-12.html#art5_smooth">article 5</a> du <a class="reflex2-link" href="https://www.canlii.org/fr/qc/legis/regl/rlrq-c-p-10-r-12/derniere/rlrq-c-p-10-r-12.html">Règlement sur les conditions et modalités de vente des médicaments</a> en conservant à l’infirmerie de l’établissement de détention de New Carlisle, des médicaments inscrits aux annexes I et II?
Q3. Sous les chefs 3 et 5 de la plainte modifiée, dispose-t-il d’une preuve lui permettant de conclure que l’intimée a contrevenu à l’<a class="reflex2-link" href="https://www.canlii.org/fr/qc/legis/regl/rlrq-c-p-10-r-12/derniere/rlrq-c-p-10-r-12.html#art9_smooth">article 9</a> du <a class="reflex2-link" href="https://www.canlii.org/fr/qc/legis/regl/rlrq-c-p-10-r-12/derniere/rlrq-c-p-10-r-12.html">Règlement sur les conditions et modalités de vente des médicaments</a>, en vendant à des détenus incarcérés à l’établissement de détention de New Carlisle des médicaments inscrits aux annexes I et II?
(<a href="https://canliiconnects.org/fr/cases/2024qccdpha6">Check for commentary on CanLII Connects</a>)
<ol start="3">
<li>Planigestec inc. c. Corporatek inc., <a href="https://canlii.ca/t/k37bm">2024 QCCS 642</a></li>
</ol>
[469] Les défendeurs se sont acquittés de leur fardeau de preuve difficile pour établir les agissements frauduleux de Khouzam. Ils ont méticuleusement exposé les preuves de la duplicité et de la tromperie de Khouzam, incluant les détournements des prêts et revenus de Corporatek. Ils ont produit plus de 1 100 pièces qu’ils ont découvertes au cours des sept dernières années et tout au long du procès.
[470] À l’audition, Khouzam ne montre aucun remords. Son témoignage pendant plusieurs jours du procès est complètement dépourvu de toute crédibilité alors qu’il continuait à tisser un réseau incrédule de mensonges et de tromperies contredit par ses propres documents, lettres et courriels, ainsi que par son témoignage antérieur dans cette affaire et d’autres affaires connexes.
[471] Plus surprenant encore, les codemandeurs Guilbert et Yacoub continuent naïvement à soutenir Khouzam au procès, ignorant la preuve de la fraude et choisissant plutôt de boire aveuglément le Kool-Aid que Khouzam continue de leur servir.
[472] Les dommages-intérêts accordés aux défendeurs sont dérisoires par rapport au préjudice causé à ces derniers par Khouzam avant et après qu’il intente le présent recours en oppression, et ce, dans le but de masquer sa fraude et de faire croire faussement aux investisseurs de Planigestec qu’il aurait investi leur argent chez Corporatek.
(<a href="https://canliiconnects.org/fr/cases/2024qccs642">Check for commentary on CanLII Connects</a>)
* As of January 2014, we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.
The post <a href="https://www.slaw.ca/2024/04/04/wednesday-whats-hot-on-canlii-march-2024/">Wednesday: What’s Hot on CanLII? – March 2024</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/04/wednesday-whats-hot-on-canlii-march-2024/feed/</wfw:commentRss>
<slash:comments>0</slash:comments>
</item>
<item>
<title>Newly-Launched Jurisprudence Database of the Inter-American Court of Human Rights</title>
<link>https://www.slaw.ca/2024/04/03/newly-launched-jurisprudence-database-of-the-inter-american-court-of-human-rights/</link>
<comments>https://www.slaw.ca/2024/04/03/newly-launched-jurisprudence-database-of-the-inter-american-court-of-human-rights/#comments</comments>
<dc:creator><![CDATA[Marcelo Rodriguez]]></dc:creator>
<pubDate>Wed, 03 Apr 2024 11:00:24 +0000</pubDate>
<category><![CDATA[Legal Information]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106614</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png">
At the beginning of this year, in January 2024, the <a href="https://www.corteidh.or.cr/index.cfm?lang=en">Inter-American Court of Human Rights (IACtHR)</a> based in San José, Costa Rica launched its first ever AI-powered case law database.This free legal source aims to provide an easy to use access to the regional court’s jurisprudence and important information regarding its procedure and composition. Recently, I had the tremendous opportunity to interview the Court’s Head Librarian, Ana Rita Ramírez and get more information regarding the process of producing this database and its future growth.
<a href="https://www.slaw.ca/wp-content/uploads/2024/04/IACtHR_Eng.png"><img loading="lazy" decoding="async" aria-describedby="caption-attachment-106615" class="wp-image-106615 size-large" src="https://www.slaw.ca/wp-content/uploads/2024/04/IACtHR_Eng-600x424.png" alt="" width="600" height="424" srcset="https://www.slaw.ca/wp-content/uploads/2024/04/IACtHR_Eng-600x424.png 600w, https://www.slaw.ca/wp-content/uploads/2024/04/IACtHR_Eng-300x212.png 300w, https://www.slaw.ca/wp-content/uploads/2024/04/IACtHR_Eng-200x141.png 200w, https://www.slaw.ca/wp-content/uploads/2024/04/IACtHR_Eng-768x543.png 768w, https://www.slaw.ca/wp-content/uploads/2024/04/IACtHR_Eng.png 1424w" sizes="(max-width: 600px) 100vw, 600px" /></a>
[Screenshot of the Database main page. Click image to see the larger picture.]
What was the . . . <a href="https://www.slaw.ca/2024/04/03/newly-launched-jurisprudence-database-of-the-inter-american-court-of-human-rights/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/03/newly-launched-jurisprudence-database-of-the-inter-american-court-of-human-rights/">Newly-Launched Jurisprudence Database of the Inter-American Court of Human Rights</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"> At the beginning of this year, in January 2024, the <a href="https://www.corteidh.or.cr/index.cfm?lang=en">Inter-American Court of Human Rights (IACtHR)</a> based in San José, Costa Rica launched its first ever AI-powered case law database.This free legal source aims to provide an easy to use access to the regional court’s jurisprudence and important information regarding its procedure and composition. Recently, I had the tremendous opportunity to interview the Court’s Head Librarian, Ana Rita Ramírez and get more information regarding the process of producing this database and its future growth.
<div id="attachment_106615" style="width: 610px" class="wp-caption alignnone"><a href="https://www.slaw.ca/wp-content/uploads/2024/04/IACtHR_Eng.png"><img loading="lazy" decoding="async" aria-describedby="caption-attachment-106615" class="wp-image-106615 size-large" src="https://www.slaw.ca/wp-content/uploads/2024/04/IACtHR_Eng-600x424.png" alt="" width="600" height="424" srcset="https://www.slaw.ca/wp-content/uploads/2024/04/IACtHR_Eng-600x424.png 600w, https://www.slaw.ca/wp-content/uploads/2024/04/IACtHR_Eng-300x212.png 300w, https://www.slaw.ca/wp-content/uploads/2024/04/IACtHR_Eng-200x141.png 200w, https://www.slaw.ca/wp-content/uploads/2024/04/IACtHR_Eng-768x543.png 768w, https://www.slaw.ca/wp-content/uploads/2024/04/IACtHR_Eng.png 1424w" sizes="(max-width: 600px) 100vw, 600px" /></a>[Screenshot of the Database main page. Click image to see the larger picture.]</div>
<h2>What was the journey to carry out this project?</h2>
This project represented an ongoing commitment by the Inter-American Court with civil society, academia, and various actors committed to the promotion and protection of human rights in the region and internationally. The jurisprudence of the IACHR constitutes an invaluable source of precedents and legal decisions related to human rights in the Inter-American region.
In the past, several initiatives have been promoted to develop a robust search engine that would offer relevant and specific search results within the vast knowledge of human rights contained in the jurisprudence of the Inter-American Court. However, high economic costs and limited human resources always posed a significant obstacle, given that such resources were not available. Faced with this need, other organizations undertook efforts to include the Court’s jurisprudence in their respective search engines, providing viable alternatives for users.
In August 2021, the Court’s Library team presented a proposal to the Court’s Secretariat to initiate the analysis and systematization of the information contained in the jurisprudence, in order to create an innovative database hosted on a robust platform that could offer an efficient search engine. This search engine would be equipped with machine learning algorithms, capable of self-feeding according to usage, and would be complemented by exhaustive information analysis. Additionally, we would use thesauri and metadata to identify descriptors and ensure that search results were more effective and reliable.
Thanks to the support of the Kingdom of Sweden, the 6 library professionals of the Inter-American Court formally began work in November 2021, in a platform hosted by Vlex.
<h2>How long did this process take?</h2>
As mentioned earlier, it has been two years since we started until the actual launch. However, this is a continuous and sustained work, which requires a constant editorial process of systematization and analysis of information, using descriptors and metadata. Additionally, we must consider the continuous improvement of our database.
The main objective of the Project is to guarantee its long-term sustainability and enrich the database with other elements that strengthen its utility as a high-level research resource, capable of meeting the needs of all users. This implies not only the inclusion of more relevant information but also the implementation of new tools and functionalities that improve the search and analysis experience of users.
To achieve this goal, it is essential to maintain a proactive approach in the constant updating and enrichment of the database, as well as in adapting to the changing needs of users and technological advances. Additionally, it is important to encourage collaboration and feedback with the community to ensure that the database evolves according to their needs and expectations.
The jurisprudence database seeks not only to establish itself as a solid resource in the present but also as a tool in constant evolution that continues to be relevant and useful over time.
<h2>Who was involved in this process?</h2>
This achievement is the result of a collaborative and multidisciplinary effort involving the entire Court, supported by the Secretariat, available financial resources, international cooperation, and technological support. Especially noteworthy is the work of the team made up of librarian professionals from the IACHR, who have played a fundamental role in the design, development, and maintenance of the database. Additionally, we have benefited from the valuable contribution of interns and law students who have contributed during their community service periods. This teamwork and collaborative approach have been key to achieving this significant milestone.
It is essential to highlight the importance of feedback and validation from the legal team of the IACtHR to enrich the database. This feedback allows us to identify areas for improvement and new elements that can strengthen the resource, thus ensuring that it continuously meets the needs and expectations of users. Through this collaboration and constant communication, we can guarantee the relevance and usefulness of the project over time.
<h2>What was the initial purpose and audience for this project?</h2>
From the beginning, we set for ourselves extremely ambitious objectives. Our vision was to create a jurisprudence database hosted on a robust platform that would provide highly relevant and accurate search results on specific topics.
This database would be designed to index content deeply within each resolution, providing access to resources that might go unnoticed in general search engines. Additionally, we were clear that the database should have distinctive features:
<ul>
<li>Personalization of results: Adapting search results according to user preferences and the context of the search.</li>
<li>Intuitive interfaces and navigation tools that simplify search and access to information, thus improving the user experience.</li>
<li>Allowing users to refine their searches using filters and specific categories to find desired information more efficiently and accurately.</li>
<li>Identifying and highlighting high-quality and relevant content within a specific topic, to help users discover valuable resources quickly and easily.</li>
</ul>
By staying true to these objectives and characteristics, we were confident that our jurisprudence database would become an indispensable tool for legal professionals, academics, and all civil society involved in the promotion and protection of human rights.
<h2>What problems does this resource solve?</h2>
Before the creation of this database, accessing the jurisprudence of the IACtHR could be difficult and limited, especially for those who were not familiar with international legal procedures or did not have access to specialized legal libraries. However, this new database provides easy and open access to the judicial decisions of the IACtHR, facilitating research and study in the field of human rights in the inter-American region.
The large amount of jurisprudence produced by the IACtHR can make it difficult for users to find the specific information they are looking for. Therefore, this database is designed to provide relevant and accurate search results, allowing users to quickly find the judicial decisions relevant to their needs and interests.
Additionally, the new database offers customization features that allow users to adjust their searches according to their specific needs and preferences. This provides a more efficient and satisfying search experience, thus improving the usability and usefulness of the platform for a wide range of users.
<h2>Why limit it to just Spanish? Are there plans to offer it in other languages in the future?</h2>
The interface of the database is available in the four official languages of the IACHR: Spanish, English, French, and Portuguese. However, the content of the jurisprudence is presented in the language in which it was officially published. Despite this limitation, the Court is making significant efforts to translate judgments and advisory opinions into English and Portuguese in order to improve access and understanding of jurisprudence for a broader audience.
<h2>What were the challenges in creating it?</h2>
To develop and create the database of jurisprudence of the Inter-American Court, the following challenges were identified that required a comprehensive approach.
Firstly, there was the challenge of securing the necessary financial support and ensuring the sustainability of a robust database that met the expectations and needs for which it was created. This involved not only obtaining initial funding but also establishing a plan to maintain operability in the long term.
Another aspect was having trained and professional staff capable of analyzing and describing information accurately and exhaustively, with knowledge of the jurisprudence of the Inter-American Court.
The systematization of jurisprudence also represented a significant challenge. The database needed to be organized in a way that was easy to navigate and search, which required the development of a categorization and labeling system that reflected the structure of each type of resolution and its respective linkages. This would establish connections between related cases, facilitating comparative analysis and contextualization of the precedents established by the Inter-American Court.
Additionally, it was essential to have knowledge of basic documents on human rights and relevant international instruments.
<h2>What are the next steps or plans to make it grow?</h2>
For the future development of our jurisprudence database, a series of plans and improvements can be considered to optimize its functionality and usefulness:
<ul>
<li>New search and filter functions: Implementing new advanced search functions that allow users to find cases more accurately, additional filters could be added to refine search results.</li>
<li>Improvements in organization and categorization: Continuing to improve the organization and categorization of jurisprudence to facilitate navigation and access to information. This could involve creating new tags or thematic categories to classify cases more precisely and in detail.</li>
<li>Incorporation of new documents: Expanding the database to include new types of documents, primary writings.</li>
<li>Collaboration and community functions: Implementing tools that encourage collaboration and participation from the community linked to the promotion and protection of human rights in the development and maintenance of the database.</li>
<li>Accessibility and usability improvements: Continuing to improve the accessibility and usability of the platform to ensure it is easy to use for a wide range of users, including lawyers, academics, students, and human rights activists.</li>
</ul>
In summary, the future of the jurisprudence database could include a series of improvements and new features aimed at making legal information more accessible, understandable, and useful for a variety of users.
The post <a href="https://www.slaw.ca/2024/04/03/newly-launched-jurisprudence-database-of-the-inter-american-court-of-human-rights/">Newly-Launched Jurisprudence Database of the Inter-American Court of Human Rights</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/03/newly-launched-jurisprudence-database-of-the-inter-american-court-of-human-rights/feed/</wfw:commentRss>
<slash:comments>2</slash:comments>
</item>
<item>
<title>Study Permits & Uncertainty</title>
<link>https://www.slaw.ca/2024/04/02/study-permits-uncertainty/</link>
<comments>https://www.slaw.ca/2024/04/02/study-permits-uncertainty/#respond</comments>
<dc:creator><![CDATA[Alastair Clarke]]></dc:creator>
<pubDate>Tue, 02 Apr 2024 23:19:49 +0000</pubDate>
<category><![CDATA[Justice Issues]]></category>
<category><![CDATA[Miscellaneous]]></category>
<category><![CDATA[Substantive Law: Judicial Decisions]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106627</guid>
<description><![CDATA[In July 2023, <a href="https://www.canada.ca/en/government/ministers/marc-miller.html">IRCC Minister Marc Miller</a> was put in charge of our immigration system and he has been focused on fixing problems while addressing the growing anti-immigration sentiment within Canada. On one side, he inherited many years of Liberal promises to welcome and support international students and to meet lofty goals. To that end, <a href="https://www.canada.ca/en/immigration-refugees-citizenship/news/notices/supplementary-immigration-levels-2024-2026.html">he remains committed to the goal of 485k new permanent residents in 2024, 500k in 2025 and 500k in 2026.</a> On the other side, Minister Miller has overseen a series of decisions to cut programs, increase restrictions and add roadblocks to previous pathways. Applicants most . . . <a href="https://www.slaw.ca/2024/04/02/study-permits-uncertainty/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/02/study-permits-uncertainty/">Study Permits & Uncertainty</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[In July 2023, <a href="https://www.canada.ca/en/government/ministers/marc-miller.html">IRCC Minister Marc Miller</a> was put in charge of our immigration system and he has been focused on fixing problems while addressing the growing anti-immigration sentiment within Canada. On one side, he inherited many years of Liberal promises to welcome and support international students and to meet lofty goals. To that end, <a href="https://www.canada.ca/en/immigration-refugees-citizenship/news/notices/supplementary-immigration-levels-2024-2026.html">he remains committed to the goal of 485k new permanent residents in 2024, 500k in 2025 and 500k in 2026.</a> On the other side, Minister Miller has overseen a series of decisions to cut programs, increase restrictions and add roadblocks to previous pathways. Applicants most affected: international students. Result: increased uncertainty and anxiety.
<h2>A Broken System</h2>
I would have loved to have sat in during Minister Miller’s initial debrief in the summer of 2023 to review the Study Permit system. I can only imagine how that meeting unfolded. Perhaps he was unacquainted with the relevant procedures and he asked <a href="https://www.clarkeimmigrationlaw.ca/success-urgent-study-permit-approved/">a step-by-step explanation how a student abroad applies for a Study Permit and comes to Canada.</a> During that initial debrief, he may have learned about:
<ul>
<li><a href="https://www.cbc.ca/news/canada/intl-student-program-1.7095990">“Puppy mill” schools that may be completely dependent on international student tuition;</a></li>
<li><a href="https://www.cbc.ca/news/canada/international-students-immigration-cbsa-india-1.6798162">The rampant use of unregulated, nefarious agents who guarantee results at exorbitant prices that lead families (and communities) into crippling debt;</a></li>
<li><a href="https://www.clarkeimmigrationlaw.ca/warning-agents-in-india/">The completely ineffective use of past warnings;</a></li>
<li><a href="https://www.clarkeimmigrationlaw.ca/success-warning-letter/">The widespread use of fake & fraudulent supporting documents;</a></li>
<li><a href="https://www.cbc.ca/news/canada/toronto/international-student-study-permits-data-1.7125827">The unbridled growth of private colleges whose existence is based on recruiting international students;</a></li>
<li><a href="https://www.canada.ca/en/border-services-agency/news/2023/06/cbsa-investigation-leads-to-criminal-charges-for-immigration-offences-including-fraudulent-letters-for-canadian-post-secondary-institutions-to-indi.html">Criminal investigations by CBSA that reveal 100s of victims every year;</a></li>
<li><a href="https://www.clarkeimmigrationlaw.ca/success-federal-court-aljr-re-study-permit-decision-chinook/">The systemic use of Chinook and other tools to process Study Permit applications as quickly as possible;</a> and,</li>
<li><a href="https://www.canada.ca/en/immigration-refugees-citizenship/services/protect-fraud.html">The schemes and scams to bring spouses on open work permits so the students can forego classes altogether.</a></li>
</ul>
From my limited access to Minister Miller, I imagine he left that meeting with an extreme level of frustration and a strong commitment to find solutions. To be clear, all the above points are true, to an extent. I have seen how thousands of students have been victimized and misled.
<a href="https://www.auditor.on.ca/en/content/annualreports/arreports/en21/AR_PublicColleges_en21.pdf">Ontario’s auditor general published a comprehensive report in 2021 that confirms many points above. As noted in the report, annual tuition average for domestic student in 2020/21: $3,228. Annual tuition average for international student: $14,306.</a> Also, <a href="https://gem.cbc.ca/the-fifth-estate/s48">The Fifth Estate did an amazing investigation “Sold a lie” where they travel to India and catch many agents peddling lies.</a> It’s no wonder colleges are focused on courting students from abroad!
There are certainly many “low-hanging fruit” problems that can easily be fixed. Over the past months, we have seen many changes to the system. I will outline these changes and suggest additional recommendations. To an extent, these changes have been improvements; however, they have also caused significant uncertainty and anxiety.
<h2>Improving the Study Permit system</h2>
Over the past few months, IRCC has been slowly announcing changes to address the issues above:
<ul>
<li><a href="https://www.canada.ca/en/immigration-refugees-citizenship/news/2023/06/statement-from-minister-fraser-concerning-reports-of-international-student-fraud.html">A taskforce with CBSA to identify victims of fraud;</a></li>
<li><a href="https://www.canada.ca/en/immigration-refugees-citizenship/news/2024/01/canada-to-stabilize-growth-and-decrease-number-of-new-international-student-permits-issued-to-approximately-360000-for-2024.html">Study Permit cap of 360k for 2024;</a></li>
<li><a href="https://www.canada.ca/en/immigration-refugees-citizenship/news/2023/12/revised-requirements-to-better-protect-international-students.html">Increase financial requirements;</a></li>
<li><a href="https://www.clarkeimmigrationlaw.ca/success-spousal-open-work-permit/">Limit access to Open Spousal Work Permits;</a></li>
<li><a href="https://www.canada.ca/en/immigration-refugees-citizenship/services/study-canada/work/after-graduation/about.html">Restrict access to Post Graduation Work Permits (PGWP);</a></li>
<li><a href="https://www.canada.ca/en/immigration-refugees-citizenship/services/study-canada/study-permit.html">New PAL requirements, adding responsibility on the shoulders of the provinces;</a></li>
<li><a href="https://www.canada.ca/en/immigration-refugees-citizenship/news/2023/10/changes-to-international-student-program-aim-to-protect-students.html">Warnings to private colleges.</a></li>
</ul>
<a href="https://ici.radio-canada.ca/rci/en/news/2042315/ottawa-planning-to-reduce-volume-of-international-students-in-certain-provinces-source">I remember the press conference when Minister Miller compared Canadian colleges to “puppy mills that are just churning out diplomas.”</a> His frustration was palpable and it is clear that he is focused on improving this situation.
Again, many of the changes have been “low-hanging fruit” problems. <a href="https://meurrensonimmigration.com/applying-for-a-study-permit/">IRCC issued ~300k Study Permits in 2020 so the cap is largely just getting back to pre-pandemic levels.</a> The new PAL continues the trend of downloading immigration responsibility to the provinces. Changes to the OSWP and the PGWP fix known loopholes.
These changes do not ease the current requirements that may include:
<ul>
<li><a href="https://www.canlii.org/en/ca/fct/doc/2018/2018fc701/2018fc701.html?searchUrlHash=AAAAAQA4InNoYWxsIGFjdGl2ZWx5IHB1cnN1ZSB0aGVpciBjb3Vyc2Ugb3IgcHJvZ3JhbSBvZiBzdHVkeSIAAAAAAQ&resultIndex=1">The extremely subjective bona fide student analysis;</a></li>
<li><a href="https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/522614/index.do">The Officer must be satisfied the applicant must leave Canada at the end of the study period;</a></li>
<li><a href="https://www.canlii.org/en/ca/fct/doc/2022/2022fc175/2022fc175.html">Financial documents must be credible and cover both tuition and costs of living;</a></li>
<li><a href="https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/515077/index.do">Permission by foreign employers they can come to Canada to study;</a> and,</li>
<li><a href="https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/522826/index.do">Recent transcripts and proof of academic performance.</a></li>
</ul>
To be clear, the citations above often refer to Federal Court cases where a judge has reversed or taken issue with the Officer’s decision. The point is to highlight that, despite these decisions, Officers continue to refuse Study Permit applications on these grounds.
The key word above is “may”, of course, as Visa Officers have broad discretionary authority to focus on particular issues while ignoring others. <a href="https://www.clarkeimmigrationlaw.ca/success-sp-appeal/">They also know that most applicants do not have the financial means to challenge IRCC refusals in Federal Court.</a> <a href="https://www.clarkeimmigrationlaw.ca/immigration-litigation-current-issues-part-1/">I have published my thoughts in detail on this last point in a previous post on Slaw.</a>
<a href="https://www.slaw.ca/2022/07/11/canada-study-permit-litigation-critical-analysis-of-inconsistent-jurisprudence-on-financial-requirement/">Prof Christian has also highlighted the inconsistent jurisprudence on financial requirements on Slaw. </a>
<h2>Recommendations</h2>
<ol>
<li>
<h3>Ban agents from receiving kickbacks from colleges (DLIs)</h3>
</li>
</ol>
In Canada, <a href="https://www.canada.ca/en/immigration-refugees-citizenship/services/study-canada/study-permit/prepare/designated-learning-institutions-list.html">Designated Learning Institutions (DLIs)</a> may pay agents or “sub-agents” to recruit international students. Consultants may receive significant payments or kickbacks from these colleges, often paid as a % of 1st year tuition, and the consultants may also receive fees from the students. Yes, these agents are getting paid from both sides of the transaction. <a href="https://www.quora.com/How-much-commission-does-a-Canadian-college-pay-to-the-immigration-agent-for-a-student-visa">This post suggests agents get 10% to 15% of the tuition paid by the student to the DLI. </a>
For example:
<blockquote><a href="https://www.canlii.org/en/ca/cicc/doc/2024/2024cicc7/2024cicc7.html?resultIndex=4&resultId=1593f867a8c2486abf23076d6a0b1e63&searchId=2024-03-21T15:48:27:958/8d6408606a5d4fcfa4b33a5def7e936b&searchUrlHash=AAAAAQAsImltbWlncmF0aW9uIGNvbnN1bHRhbnQiICJzdHVkeSBwZXJtaXQiIGZlZXMAAAAAAQ">Mr Bonito charged his client $3,000 for a Study Permit (before he lost his CICC licence).</a>
If he got also got 10% of the average tuition, that would lead to an extra kickback of $1,430 from the DLI
Total fees paid to the agent: $4,430.</blockquote>
The above example is hypothetical. I could not find any cases involving agents who disclosed their commissions from DLIs.
To be clear, <a href="https://www.clarkeimmigrationlaw.ca/top-5-immigration-lawyers/">the average fees paid to an immigration lawyer for a Study Permit is between $3,000 to $3,500.</a> <a href="https://lawlibrary.ca/2018/11/01/referral-fees-what-you-should-know/">Lawyers cannot get these extra payments from the DLI as we are bound, correctly, by Rules that prohibit these types of fees.</a> Consultants and agents do not have such rules. For a Study Permit, they can charge the student a fee for the application and then, for the same student, they can get a commission from the private college or public university. Representing both sides of the process is a direct conflict of interest, of course. Neither CICC nor IRCC bans this conduct.
I spoke with an immigration consultant who does not accept kickbacks from DLIs. She was, however, approached by a few private colleges that offered between $700 to $2000 per student. She did not feel right about the offer so she did not accept. She knows other consultants whose businesses focus on this market. There is significant $$$ involved. She asked to remain anonymous.
Another source stated, “Some consultants ‘buy’ whole classrooms and then fill them with students making huge commissions.”
From my perspective, this is a huge issue and I believe most folks in Canada are completely unaware. I was describing this situation to a friend who pointed out that Canadian universities have limited spots for students. Each spot given to an international student through a shady agent leads to one fewer spot for a student in Canada.
<ol start="2">
<li>
<h3>Publish black-listed agents</h3>
</li>
</ol>
<a href="https://www.clarkeimmigrationlaw.ca/warning-agents-in-india/">IRCC has published blanket warnings against using agents abroad.</a> News agencies report <a href="https://www.clarkeimmigrationlaw.ca/warning-agent-in-india-causes-deportation-order/">story</a> after <a href="https://www.clarkeimmigrationlaw.ca/cbc-news-indian-died-at-border-re-fake-documents/">story</a> after <a href="https://www.clarkeimmigrationlaw.ca/bad-advice-cost-fn-150k/">story</a> of the rampant corruption. <a href="https://www.canada.ca/en/immigration-refugees-citizenship/news/2024/01/canada-to-stabilize-growth-and-decrease-number-of-new-international-student-permits-issued-to-approximately-360000-for-2024.html">As the Honourable Miller put it, the system “has become so lucrative that it has opened a path for its abuse.”</a> The current warnings are not enough.
When I meet with victims of scams, I would love to be able to show them an IRCC website that lists shady agents, with their personal information. This would not be difficult. I have spoken with CBSA Investigators who are constantly tracking down shady agents and their victims.
<a href="https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/eligibility/public-list-employers-who-have-been-non-compliant.html">On the business side, IRCC currently publishes a page of employers who have abused workers and violated immigration laws.</a> I have referred to this IRCC website when I give presentations to employers regarding potential issues of non-compliance. It can be quite effective.
<ol start="3">
<li>
<h3>Encourage the use of lawyers licenced in Canada</h3>
</li>
</ol>
I hesitate to add this recommendation as it is, of course, in my own self-interest. I cannot ignore, however the merit of the recommendation. <a href="https://www.clarkeimmigrationlaw.ca/success-study-permit/">The fact is that many immigration consultants falsely advertise themselves as “lawyers”.</a> Many agents, unfortunately, lie to their clients and put themselves out as lawyers. I cannot count the number of times I have spoken with a prospective client who describes incompetence by their “lawyer” only for me to find out they never retained a lawyer.
IRCC does the opposite. They do not distinguish between representatives and they actively discourage applicants from hiring professionals. <a href="https://www.canada.ca/en/immigration-refugees-citizenship/services/immigration-citizenship-representative/learn-about-representatives.html">On the government website, it states that representatives could be:</a>
<ul>
<li>citizenship or immigration consultants</li>
<li>lawyers</li>
<li>friends</li>
<li>family members or</li>
<li>other third parties</li>
</ul>
I have to admit, I am mildly insulted they include consultants at the top of the list. They also include this warning:
<img loading="lazy" decoding="async" class="wp-image-106628 aligncenter" src="https://www.slaw.ca/wp-content/uploads/2024/04/Screenshot-2024-04-02-at-5.20.50 PM-300x69.png" alt="" width="652" height="150" srcset="https://www.slaw.ca/wp-content/uploads/2024/04/Screenshot-2024-04-02-at-5.20.50 PM-300x69.png 300w, https://www.slaw.ca/wp-content/uploads/2024/04/Screenshot-2024-04-02-at-5.20.50 PM-600x138.png 600w, https://www.slaw.ca/wp-content/uploads/2024/04/Screenshot-2024-04-02-at-5.20.50 PM-200x46.png 200w, https://www.slaw.ca/wp-content/uploads/2024/04/Screenshot-2024-04-02-at-5.20.50 PM-768x177.png 768w, https://www.slaw.ca/wp-content/uploads/2024/04/Screenshot-2024-04-02-at-5.20.50 PM-1536x353.png 1536w, https://www.slaw.ca/wp-content/uploads/2024/04/Screenshot-2024-04-02-at-5.20.50 PM-2048x471.png 2048w" sizes="(max-width: 652px) 100vw, 652px" />
“You should be able to fill out the forms and submit them yourself.” That’s rich. I would suggest the writer of the above spend more time with applicants and listen to the high level of frustration out there. I suppose, along the same lines, we should all be able to file and submit our taxes by ourselves. When my life was simpler, I took the time and did the research to file my own taxes. I hire a professional.
If IRCC provided sufficient support to applicants and they provided guides that were clear & comprehensive, then I could see Officers discouraging the use of representatives. The fact is the government does not provide adequate support. Clients who call the <a href="https://www.canada.ca/en/immigration-refugees-citizenship/corporate/contact-ircc/client-support-centre.html">IRCC Call Centre</a> may wait 2 to 3 hours on hold, or they may not get through at all.
<ol start="4">
<li>
<h3>Prioritize applications submitted via Authorized Paid Representatives’ Portal (APR Portal)</h3>
</li>
</ol>
IRCC needs to find better ways to curb the firehose of applications to Officers. <a href="https://www.clarkeimmigrationlaw.ca/changes-to-webform-cse/">At the end of 2023, they have made it more difficult to request an update or to provide additional information through the Case Specific Enquiry (CSE/ Webform).</a> I spoke with an Officer who advised the number of CSE requests has skyrocketed over the past few years and many are simply ignored. Many self-represented applications are sent back due to missing information or other issues. <a href="https://www.clarkeimmigrationlaw.ca/success-pgwp-restoration/">This wastes Officers’ time and leads to delays and unnecessary refusals.</a>
One possible remedy would be to prioritize applications submitted through <a href="https://www.canada.ca/en/immigration-refugees-citizenship/corporate/partners-service-providers/authorized-paid-representatives-portal/enrolment-guide.html">the APR Portal, available to all licenced lawyers and all licenced consultants.</a> This could increase the quality of the applications submitted to IRCC and potentially increase efficiency.
The critique of this recommendation is that it could create a hierarchy of applicants and raise fairness issues. Giving high priority to applications through the APR Portal may lead to longer processing of applications submitted by self-represented applicants. Two steps forward, one step back?
Potential clients often ask, “if I hire you, will I get a faster result?” I answer, “if you submit an application without any mistakes that is done properly and includes all the supporting documentation to address any potential issue, then it will be processed just as fast as if we were to submit on your behalf.”
<h2>Uncertainty and Expectations</h2>
I hope I have adequately conveyed the serious nature of this problem. I could probably write a book on this topic. This is only scratching the surface.
Yesterday, I met a student from Lebanon in my office. She is taking a 1 year study program and she has dreams of becoming a pharmacist. She applied for a work permit and it was refused. She was told by her agent in Beirut that getting PR in Canada was “easy” and <a href="https://www.clarkeimmigrationlaw.ca/cbc-news-mpnp-program-2023-recap/">Manitoba (MPNP)</a> has the easiest path to PR status. Indeed, under the system in 2021, the agent was not wrong. Under the current system, it will be very difficult for this Lebanese student to realize her dreams.
<h2>UPDATE</h2>
Since this post was published, a Ukrainian friend shared her experience. She worked for an agent in Europe. That agent received significant commissions from DLIs in Canada and he also charged the student. He got “at least $2,000 commission per student” and there were DLIs who would also pay commissions for both the 1st and 2nd year tuitions. They would push students to the DLIs that were paying the highest commission. And then charge the student for the Study Permit.
The post <a href="https://www.slaw.ca/2024/04/02/study-permits-uncertainty/">Study Permits & Uncertainty</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/02/study-permits-uncertainty/feed/</wfw:commentRss>
<slash:comments>0</slash:comments>
</item>
<item>
<title>Can Self-Represented Litigants Access Justice? NSRLP’s New Intake Report</title>
<link>https://www.slaw.ca/2024/04/02/can-self-represented-litigants-access-justice-nsrlps-new-intake-report/</link>
<comments>https://www.slaw.ca/2024/04/02/can-self-represented-litigants-access-justice-nsrlps-new-intake-report/#respond</comments>
<dc:creator><![CDATA[National Self-Represented Litigants Project]]></dc:creator>
<pubDate>Tue, 02 Apr 2024 11:00:30 +0000</pubDate>
<category><![CDATA[Justice Issues]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106540</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png">
Since 2013, the NSRLP has gathered data from self-represented litigants (SRLs) across Canada through our <a href="https://www.surveymonkey.com/r/2016Intake">SRL Intake Form</a>. After the publication of <a href="https://representingyourselfcanada.com/wp-content/uploads/2016/09/srlreportfinal.pdf">Julie Macfarlane’s original study on self-representation</a> in 2013, SRLs wished to continue sharing their stories and experiences with the legal system, so the Intake Form was developed as a means to continue collecting this data, as it was clear there was a significant gap in existing organizations and systems and that SRLs’ contributions and experiences were going unheard. Every 1-2 years the NSRLP analyzes the Intake Form data for the previous period, and writes an updated report . . . <a href="https://www.slaw.ca/2024/04/02/can-self-represented-litigants-access-justice-nsrlps-new-intake-report/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/02/can-self-represented-litigants-access-justice-nsrlps-new-intake-report/">Can Self-Represented Litigants Access Justice? NSRLP’s New Intake Report</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"> Since 2013, the NSRLP has gathered data from self-represented litigants (SRLs) across Canada through our <a href="https://www.surveymonkey.com/r/2016Intake">SRL Intake Form</a>. After the publication of <a href="https://representingyourselfcanada.com/wp-content/uploads/2016/09/srlreportfinal.pdf">Julie Macfarlane’s original study on self-representation</a> in 2013, SRLs wished to continue sharing their stories and experiences with the legal system, so the Intake Form was developed as a means to continue collecting this data, as it was clear there was a significant gap in existing organizations and systems and that SRLs’ contributions and experiences were going unheard. Every 1-2 years the NSRLP analyzes the Intake Form data for the previous period, and writes an updated report based on the ongoing trends and newly developing issues in self-representation in Canada.
Our previous intake reports have been released in <a href="https://representingyourselfcanada.com/nsrlp-intake-report-2014-2015/">2015</a>, <a href="https://representingyourselfcanada.com/srl-intake-report-2015-16/">2017</a>, <a href="https://representingyourselfcanada.com/srl-intake-report-2017/">2018</a>, <a href="https://representingyourselfcanada.com/srl-intake-report-2018-19/">2020</a>, and <a href="https://representingyourselfcanada.com/srl-intake-report-2019-2021/">2021</a>. We are now excited to announce the release of our <a href="https://representingyourselfcanada.com/srl-intake-report-2021-2023/">latest Intake Report</a>, encompassing data collected from July 1, 2021 to September 30, 2023, comprising responses from 268 self-represented litigants. Following are some highlights from this report.
<h2>Demographic Data from SRLs</h2>
As observed in previous intake reports, the predominant age group among SRL respondents continues to be individuals aged 50 and above. This statistic reflects the trend that individuals over 40 are more likely to face civil or family law disputes. Consistent over the years, this dataset still has a notable absence of younger respondents. Potential explanations could be that younger people face fewer legal issues, choose to handle legal problems through informal dispute-resolution mechanisms, or end up lumping legal issues. More research is needed to explain and further analyze disparities in age brackets in the self-representation process.
SRLs in the sample continue to be highly educated. Almost 40% of respondents have a university degree, and a further 27% have a college diploma. Despite their educational background, navigating self-representation in legal matters remains difficult for many. SRLs also continue to speak a diversity of languages. While most respondents stated that their first language was English, many other first languages were reported in the sample, including French, Mandarin, Punjabi, Spanish, Urdu, German, and Polish. However, it should be noted that the Intake Form is currently only available in English. As such, there may be more languages spoken by SRLs that the current data cannot capture, particularly if these litigants use translators or other language services, and many more SRLs navigating the justice system whose first language is not English. The NSRLP feels strongly that this consideration needs to inform the production and delivery of legal information resources going forward.
<h2>Barriers to Access to Justice</h2>
In line with both Julie Macfarlane’s original study and all subsequent intake reports, the primary barrier cited by respondents was the high cost of lawyers’ fees and the general unaffordability of legal services. They cite this as the primary reason they are self-represented in their legal matter. Similar to previous intake reports, this data suggests that the standards of poverty and income eligibility thresholds used by most provincial Legal Aid organizations are out of date with the current Canadian economic landscape and the income of the average Canadian. Even among respondents who reported earning higher incomes, financial barriers were cited as reasons not to retain a lawyer for the entirety of their cases. To this effect, one respondent wrote: “I slowly was losing my savings and realized my only option was to self-represent.”
An alarming portion of SRLs surveyed also described encountering discrimination based on disability, gender, and race throughout their legal proceedings. Systemic discrimination and racism in the justice system remain significant issues. Combatting these demands greater sensitivity and cultural awareness on the part of judges, lawyers, and other actors within the system.
Disabled Canadians continue to be disproportionately represented within the SRL community. 43% of respondents identified as individuals with cognitive and/or physical impairments. SRLs with disabilities reported encountering additional obstacles during their cases, describing struggles in obtaining accommodations from courts and tribunals, and the overall detrimental impact on their physical and mental well-being of navigating an inaccessible system.
<h2>SRL Experiences in the Justice System</h2>
The final part of the Intake Form includes an open-ended question prompting SRLs to share their personal experiences and provide advice for others navigating the justice system on their own. Drawing on this open-ended question, a significant portion of each intake report is dedicated to showcasing the firsthand accounts and insights of SRLs in their own words.
Many respondents continue to write about the misperceptions they believe justice system insiders hold about SRLs. Other respondents expressed feeling that the system is stacked against them. One respondent wrote: “I feel like court officials are dismissive of SRLs. I liken this experience to being gaslit, being made to question your perception of reality, being told constantly that you are wrong.” Another respondent described assumptions legal actors made about SRLs: “When I was self-represented and unable to afford a lawyer, judges have assumed that I chose to appear before them self-represented rather than accept the advice of a lawyer.”
Many respondents took the opportunity to address other SRLs, enthusiastic to assist others and advocate for broader reforms within the justice system and its processes. Numerous respondents offered insightful and practical advice to fellow SRLs on how to navigate procedural matters, conduct legal research, and prepare for proceedings. (Examples of this advice can be found in the full Report.)
<h2>Imperative User Perspectives</h2>
At the NSRLP we’re very grateful for the time respondents take to share their stories and experiences with us every day. We are committed to providing information and resources to support self-represented litigants and to help address the access to justice crisis in our legal system, and this first-hand data informs our work in these regards. The Intake Form is an ongoing and evolving initiative, and we are committed to continuously modifying the Form to respond to changes observed in the legal system and the development of new access to justice issues. In recent iterations we have added questions respecting unbundled legal services and access to mediation. Currently we are in the process of adding questions about SRLs’ use of AI to assist them with their legal matter. We encourage self-represented individuals to continue to share their insights through the Form, and to share with us any feedback on how the Form itself might be improved.
The data from SRLs provides invaluable insights for legal professionals and illuminates the challenges and biases these justice system stakeholders face. As legal actors in the justice system seek to address blind spots and bridge the access to justice gap, it is imperative to actively seek and consider the firsthand perspectives of users.
The full 2021-2023 Self-Represented Litigant Intake Report can be <a href="https://representingyourselfcanada.com/wp-content/uploads/2024/02/2021-23-Intake-Report.pdf">read here</a>.
_____
Written by Keerthi Chintapalli, NSRLP Law Student Research Assistant
The post <a href="https://www.slaw.ca/2024/04/02/can-self-represented-litigants-access-justice-nsrlps-new-intake-report/">Can Self-Represented Litigants Access Justice? NSRLP’s New Intake Report</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/02/can-self-represented-litigants-access-justice-nsrlps-new-intake-report/feed/</wfw:commentRss>
<slash:comments>0</slash:comments>
</item>
<item>
<title>New Article on Algorithmic Personalized Pricing by Windsor Law Professor Pascale Chapdelaine</title>
<link>https://www.slaw.ca/2024/04/01/new-article-on-algorithmic-personalized-pricing-by-windsor-law-professor-pascale-chapdelaine/</link>
<comments>https://www.slaw.ca/2024/04/01/new-article-on-algorithmic-personalized-pricing-by-windsor-law-professor-pascale-chapdelaine/#respond</comments>
<dc:creator><![CDATA[Annette Demers]]></dc:creator>
<pubDate>Tue, 02 Apr 2024 00:45:51 +0000</pubDate>
<category><![CDATA[Technology]]></category>
<category><![CDATA[Technology: Internet]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106604</guid>
<description><![CDATA[On March 27, 2024, <a href="https://www.uwindsor.ca/law/" rel="noopener" target="_blank">Windsor Law</a> <a href="https://www.uwindsor.ca/law/chapdel/" rel="noopener" target="_blank">Professor Pascale Chapdelaine</a> released her latest article on the very interesting topic of algorithmic personalized pricing. 
<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4755474" rel="noopener" target="_blank">Pascale Chapdelaine, “Algorithmic Personalized Pricing: A Personal Data Protection and Consumer Law Perspective” (2024) 102 Can Bar Rev (forthcoming, online via SSRN).</a>
Here’s more information about the article:
“Price is often the single most important term in consumer transactions. As the personalization of e-commerce continues to intensify, the law and policy implications of algorithmic personalized pricing i.e., to set prices based on consumers’ personal data with the objective of getting as closely as possible to their maximum willingness . . . <a href="https://www.slaw.ca/2024/04/01/new-article-on-algorithmic-personalized-pricing-by-windsor-law-professor-pascale-chapdelaine/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/01/new-article-on-algorithmic-personalized-pricing-by-windsor-law-professor-pascale-chapdelaine/">New Article on Algorithmic Personalized Pricing by Windsor Law Professor Pascale Chapdelaine</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[On March 27, 2024, <a href="https://www.uwindsor.ca/law/" rel="noopener" target="_blank">Windsor Law</a> <a href="https://www.uwindsor.ca/law/chapdel/" rel="noopener" target="_blank">Professor Pascale Chapdelaine</a> released her latest article on the very interesting topic of algorithmic personalized pricing. 
<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4755474" rel="noopener" target="_blank">Pascale Chapdelaine, “Algorithmic Personalized Pricing: A Personal Data Protection and Consumer Law Perspective” (2024) 102 Can Bar Rev (forthcoming, online via SSRN).</a>
Here’s more information about the article:
“Price is often the single most important term in consumer transactions. As the personalization of e-commerce continues to intensify, the law and policy implications of algorithmic personalized pricing i.e., to set prices based on consumers’ personal data with the objective of getting as closely as possible to their maximum willingness to pay (APP), should be top of mind for regulators. 
This article looks at the legality of APP from a personal data protection law perspective, by first presenting the general legal framework applicable to this commercial practice under competition and consumer law. There is value in analysing the legality of APP through how these bodies of law interact with one and the other. This article questions the legality of APP under personal data protection law, by its inability to effectively meet the substantive requirements of valid consent and reasonable purpose. Findings of illegality of APP under personal data protection law may in turn further inform the lawfulness of APP under competition and consumer law.”
The post <a href="https://www.slaw.ca/2024/04/01/new-article-on-algorithmic-personalized-pricing-by-windsor-law-professor-pascale-chapdelaine/">New Article on Algorithmic Personalized Pricing by Windsor Law Professor Pascale Chapdelaine</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/01/new-article-on-algorithmic-personalized-pricing-by-windsor-law-professor-pascale-chapdelaine/feed/</wfw:commentRss>
<slash:comments>0</slash:comments>
</item>
<item>
<title>Monday’s Mix</title>
<link>https://www.slaw.ca/2024/04/01/mondays-mix-550/</link>
<comments>https://www.slaw.ca/2024/04/01/mondays-mix-550/#respond</comments>
<dc:creator><![CDATA[Administrator]]></dc:creator>
<pubDate>Mon, 01 Apr 2024 11:00:06 +0000</pubDate>
<category><![CDATA[Monday’s Mix]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106611</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png">
Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from more than 80 recent <a href="http://www.clawbies.ca/">Clawbie</a> winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
This week the randomly selected blogs are 1. <a href="https://www.clio.com/blog/">Official Clio Blog</a> 2. <a href="https://cybersecuritylaw.ca/">Canadian Cybersecurity Law</a> 3. <a href="https://ofaolain.com/">David Whelan</a> 4. <a href="https://greatlibrary.blog/">Know How</a> 5. <a href="https://bc-injury-law.com/">BC Injury Law Blog</a>
Official Clio Blog 
<a href="https://www.clio.com/blog/tiktok-ban/">TikTok Ban: A 2024 Update (and What You Should Know)</a>
If you’re one of the one billion monthly active TikTok users worldwide—or a devout “LawTok” follower—you’ve . . . <a href="https://www.slaw.ca/2024/04/01/mondays-mix-550/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/04/01/mondays-mix-550/">Monday’s Mix</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png"> <div class="content-wrap">
<div class="content-wrap">
<div class="content-wrap">
<div class="content-wrap">
<div class="content-wrap">
<div class="content-wrap">
<div class="content-wrap">
<div class="content-wrap">
Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from more than 80 recent <a href="http://www.clawbies.ca/">Clawbie</a> winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
This week the randomly selected blogs are 1. <a href="https://www.clio.com/blog/">Official Clio Blog</a> 2. <a href="https://cybersecuritylaw.ca/">Canadian Cybersecurity Law</a> 3. <a href="https://ofaolain.com/">David Whelan</a> 4. <a href="https://greatlibrary.blog/">Know How</a> 5. <a href="https://bc-injury-law.com/">BC Injury Law Blog</a>
Official Clio Blog 
<a href="https://www.clio.com/blog/tiktok-ban/">TikTok Ban: A 2024 Update (and What You Should Know)</a>
If you’re one of the one billion monthly active TikTok users worldwide—or a devout “LawTok” follower—you’ve probably seen news stories discussing an upcoming TikTok ban in the United States. With legislation targeting the regulation or outright banning of TikTok in American jurisdictions, there’s a lot going on—which is why we’re providing a TikTok ban update. Below, we’ll cover what TikTok is, a quick run-down on the current TikTok-related legislation in the United States, and the potential implications of these legislative changes. …
Canadian Cybersecurity Law 
<a href="https://cybersecuritylaw.ca/home/2019/3/6/frequently-asked-questions-pipedas-security-breach-obligations">Frequently Asked Questions – PIPEDA’s Security Breach Obligations</a>
Canada’s federal Personal Information Protection and Electronic Documents Act (“PIPEDA”) imposes obligations on private sector organizations that suffer a breach of security safeguards affecting personal information under their control. Details of those obligations are set out in PIPEDA, the Breach of Security Safeguards Regulations and the guidance document titled “What you need to know about mandatory reporting of breaches of security safeguards” issued by the Office of the Privacy Commissioner (OPC) (the “Guidance”). …
David Whelan 
<a href="https://ofaolain.com/blog/2024/03/25/mind-the-gap/">Mind the Gap</a>
I was talking with some folks recently and someone asked why our law library hired part-time staff. Was it for financial reasons? It isn’t and the financial rationale—a part-timer saves costs because you cut out benefits and other perqs full-timers get—is one reason I have avoided creating or keeping part-time roles at other organizations I’ve worked in. But we use part-timers at our law library to build in resilience in our public-facing roles. They are an example of utilization planning. …
Know How 
<a href="https://greatlibrary.blog/2024/03/25/house-of-bills-march-18-21-2024/">House of Bills: March 18-21, 2024</a>
Hello and welcome back to our regularly scheduled Bill summary programming. Our summary of Bill activity for the March 18-21 sitting week is ready for you: Bill 81, Croatian Heritage Day Act, 2024 …
BC Injury Law Blog 
<a href="https://bc-injury-law.com/bc-supreme-court-judge-unable-to-presume-that-icbc-will-conduct-itself-honourably-moving-forward/">BC Supreme Court Judge “Unable to Presume That ICBC Will Conduct Itself Honourably Moving Forward”</a>
Pointed reasons for judgment released this week by the BC Supreme Court showed just how poorly ICBC fulfilled their obligations to an individual they insured despite making promises to the court that they will be fair. Madam Justice Murray noted she is “unable to presume that ICBC will conduct itself honourably moving forward“. Here is the context. In the recent case (Taylor v. Peters) the Plaintiff suffered serious injuries in a 2017 crash. She was not at fault. Back then BC crash victims still enjoyed the right to sue for proper compensation. …
 
_________________________
*Randomness here is created by Random.org and its <a href="http://www.random.org/lists/">list randomizing function</a>.
</div>
</div>
</div>
</div>
</div>
</div>
</div>
</div>
The post <a href="https://www.slaw.ca/2024/04/01/mondays-mix-550/">Monday’s Mix</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/04/01/mondays-mix-550/feed/</wfw:commentRss>
<slash:comments>0</slash:comments>
</item>
<item>
<title>Summaries Sunday: Supreme Advocacy</title>
<link>https://www.slaw.ca/2024/03/31/summaries-sunday-supreme-advocacy-117/</link>
<comments>https://www.slaw.ca/2024/03/31/summaries-sunday-supreme-advocacy-117/#respond</comments>
<dc:creator><![CDATA[Administrator]]></dc:creator>
<pubDate>Sun, 31 Mar 2024 11:00:19 +0000</pubDate>
<category><![CDATA[Summaries Sunday]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106608</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png">
One Sunday each month we bring you a summary from Supreme Advocacy LLP of recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers a weekly electronic newsletter, Supreme Advocacy Letter, to which you may <a href="http://supremeadvocacy.ca/newsletter/">subscribe</a>. It’s a summary of all Appeals, Oral Judgments and Leaves to Appeal granted from February 9 – March 20, 2024 inclusive.
Appeals
Aboriginal Law/Constitutional Law: Division of Powers 
Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, <a href="https://canlii.ca/t/jn7nb">2022 QCCA 185</a>; <a href="https://canlii.ca/t/k2qhn">2024 SCC 5</a> (40061)
In an order in council made on December 18, 2019, . . . <a href="https://www.slaw.ca/2024/03/31/summaries-sunday-supreme-advocacy-117/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/03/31/summaries-sunday-supreme-advocacy-117/">Summaries Sunday: Supreme Advocacy</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png"> One Sunday each month we bring you a summary from Supreme Advocacy LLP of recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers a weekly electronic newsletter, Supreme Advocacy Letter, to which you may <a href="http://supremeadvocacy.ca/newsletter/">subscribe</a>. It’s a summary of all Appeals, Oral Judgments and Leaves to Appeal granted from February 9 – March 20, 2024 inclusive.
<h2>Appeals</h2>
Aboriginal Law/Constitutional Law: Division of Powers 
Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, <a href="https://canlii.ca/t/jn7nb">2022 QCCA 185</a>; <a href="https://canlii.ca/t/k2qhn">2024 SCC 5</a> (40061)
In an order in council made on December 18, 2019, the Government of Québec gave the province’s Attorney General a mandate to challenge, through a reference to the Court of Appeal, the constitutionality of the Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 (“Act”), on the ground that it exceeds the jurisdiction of the Parliament of Canada. Stating that the federal statute [translation] “raises fundamental constitutional issues with regard particularly to the division of legislative powers and the constitutional architecture of Canada”. Nothing prevents Parliament from affirming, as it does in s. 18(1) of the Act, that Indigenous peoples have jurisdiction to make laws in relation to child and family services. This “affirmation”, through which Parliament declares that the inherent right of self government recognized and affirmed by s. 35 of the Constitution Act, 1982 includes “legislative authority” in relation to Indigenous child and family services, certainly represents a legislative commitment that Parliament must honour in its conduct toward Indigenous peoples. Furthermore, nothing prevents Parliament from declaring, as it does in s. 7, that this commitment, like the others made toward Indigenous peoples in the Act for the protection of children, “is binding” on His Majesty.
Criminal Law/Charter: Search & Seizure; IP Addresses 
R. v. Bykovets, <a href="https://canlii.ca/t/jprgb">2022 ABCA 208</a>; <a href="https://canlii.ca/t/k358f">2024 SCC 6</a> (40269)
This appeal asks whether an IP address itself attracts a reasonable expectation of privacy. The answer is yes. An IP address is a unique identification number. IP addresses identify Internet-connected activity and enable the transfer of information from one source to another. They are necessary to access the Internet. An IP address identifies the source of every online activity and connects that activity (through a modem) to a specific location. And an Internet Service Provider (ISP) keeps track of the subscriber information that attaches to each IP address. Correlated with other online information associated with that IP address, such as that volunteered by private companies or otherwise collected by the state, an IP address can reveal a range of highly personal online activity. And when associated with the profiles created and maintained by private third parties, the privacy risks associated with IP addresses rise exponentially. The information collected, aggregated and analyzed by these third parties lets them catalogue our most intimate biographical information. Viewed normatively and in context, an IP address is the first digital breadcrumb that can lead the state on the trail of an individual’s Internet activity. It may betray personal information long before a Spencer warrant is sought. On balance, the burden imposed on the state by recognizing a reasonable expectation of privacy in IP addresses is not onerous. This recognition adds another step to criminal investigations by requiring that the state show grounds to intrude on privacy online. But in the age of telewarrants, this hurdle is easily overcome where the police seek the IP address in the investigation of a criminal offence. Section 8 protection would let police pursue the Internet activity related to their law enforcement goals while barring them from freely seeking the IP address associated with online activity not related to the investigation. Judicial oversight would also remove the decision of whether to reveal information — and how much to reveal — from private corporations and return it to the purview of the Charter.
Criminal Law: Sexual Assault; Ungrounded Common Sense Assumptions 
R. v. Kruk, <a href="https://canlii.ca/t/jlttq">2022 BCCA 18</a>; <a href="https://canlii.ca/t/jscrr">2022 BCCA 345</a>; <a href="https://canlii.ca/t/k39g6">2024 SCC 7</a> (40095) (40447)
These appeals in two sexual assault matters concern the standard for appellate intervention with respect to a trial judge’s credibility and reliability findings in a criminal trial and the appropriate role of common sense when assessing the evidence of witnesses. The S.C.C. was asked to recognize a novel rule referred to as the “rule against ungrounded common-sense assumptions”. No such change to the law is warranted; the S.C.C. declined to recognize the rule against ungrounded common-sense assumptions as giving rise to an error of law. The current standards under which appellate courts review trial judgments are well-designed, long-established, and promote the fair assessment of testimony.
<h2>Leaves to Appeal Granted</h2>
Criminal Law: Evidence Exclusion 
R. v. Wilson, <a href="https://canlii.ca/t/k0246">2023 SKCA 106</a> (40990)
Evidence exclusion after police search.
Criminal Law: Prior Convictions 
A.H. v. R., <a href="https://canlii.ca/t/jwnq9">2023 ONCA 253</a> (41015)
Use of prior convictions at trial.
Criminal Law: Sentencing 
J.W. v. R., <a href="https://canlii.ca/t/jzqb3">2023 ONCA 552</a> (40956)
Considering rehabilitative programming in sentencing.
Criminal Law: Sexual Assault 
K. v. R., <a href="https://canlii.ca/t/jzr8t">2023 BCCA 337</a> (40964)
Tendering evidence of previous sexual history without an application.
Immigration: Marriage of Dependant Child 
Dorinela Pepa v. Minister of Citizenship and Immigration, <a href="https://canlii.ca/t/jx651">2023 FCA 102</a> (40840)
Effect of delay on right to appeal removal order due to visa expiring.
The post <a href="https://www.slaw.ca/2024/03/31/summaries-sunday-supreme-advocacy-117/">Summaries Sunday: Supreme Advocacy</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/03/31/summaries-sunday-supreme-advocacy-117/feed/</wfw:commentRss>
<slash:comments>0</slash:comments>
</item>
<item>
<title>Summaries Sunday: SOQUIJ</title>
<link>https://www.slaw.ca/2024/03/31/summaries-sunday-soquij-522/</link>
<comments>https://www.slaw.ca/2024/03/31/summaries-sunday-soquij-522/#respond</comments>
<dc:creator><![CDATA[SOQUIJ]]></dc:creator>
<pubDate>Sun, 31 Mar 2024 10:59:44 +0000</pubDate>
<category><![CDATA[Summaries Sunday]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106622</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png">
Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.
FISCALITÉ : La portion des incitatifs qu’un contribuable a reçus d’un courtier afin de souscrire une police d’assurance-vie universelle et qui se rapportent purement à la couverture d’assurance-vie ne sont pas visés par l’article 87 w) de la Loi sur les impôts; toutefois, la partie des incitatifs reçus au . . . <a href="https://www.slaw.ca/2024/03/31/summaries-sunday-soquij-522/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/03/31/summaries-sunday-soquij-522/">Summaries Sunday: SOQUIJ</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png"> Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.
FISCALITÉ : La portion des incitatifs qu’un contribuable a reçus d’un courtier afin de souscrire une police d’assurance-vie universelle et qui se rapportent purement à la couverture d’assurance-vie ne sont pas visés par l’article 87 w) de la Loi sur les impôts; toutefois, la partie des incitatifs reçus au regard des versements effectués aux assureurs aux fins du compte de placement prévu dans le contrat le sont.
Intitulé : Verrier c. Agence du revenu du Québec, <a href="http://citoyens.soquij.qc.ca/ID=BC5C65AD6AE1EC4D30C695148AA9DBE5">2024 QCCA 298</a> 
Juridiction : Cour d’appel (C.A.), Québec 
Décision de : Juges Robert M. Mainville, Stéphane Sansfaçon et Michel Beaupré 
Date : 12 mars 2024
Résumé
FISCALITÉ — revenu (impôt sur le) — calcul du revenu — revenus non déclarés — revenus d’un bien — paiement incitatif — exploitation d’un bien — stratagème — police d’assurance-vie universelle — incitatif reçu d’un courtier dans le but de souscrire la police et la maintenir en vigueur — revenu exonéré d’impôt — imposition différée au moment du rachat de la police — compte de placement — exploitation d’un bien — interprétation de l’article 87 w) de la Loi sur les impôts — bien exploité pour en tirer un revenu — test objectif — bien raisonnablement susceptible d’engendrer un revenu.
ADMINISTRATIF (DROIT) — contrôle judiciaire — cas d’application — fiscalité — calcul du revenu — revenus non déclarés — revenus d’un bien — paiement incitatif — exploitation d’un bien — stratagème — police d’assurance-vie universelle — incitatif reçu d’un courtier dans le but de souscrire la police et la maintenir en vigueur — revenu exonéré d’impôt — imposition différée au moment du rachat de la police — compte de placement — exploitation d’un bien — interprétation de l’article 87 w) de la Loi sur les impôts — bien exploité pour en tirer un revenu — test objectif — bien raisonnablement susceptible d’engendrer un revenu.
INTERPRÉTATION DES LOIS — intention du législateur — différence entre les versions anglaise et française — interprétation de l’article 87 w) de la Loi sur les impôts — interprétation de l’article 12 (1) x) de la Loi de l’impôt sur le revenu.
Appel d’un jugement de la Cour du Québec ayant rejeté un appel de cotisations. Accueilli en partie.
L’appelant s’est laissé convaincre par un courtier en assurances de participer à un stratagème illicite qui lui permettait de souscrire pour lui-même une police d’assurance-vie «universelle» à coût nul. Ce type de police offre à la fois une protection d’assurance-vie souple et un mécanisme de placements financiers. Les avantages fiscaux sont importants puisque les revenus engendrés ne sont pas imposables, dans la mesure où il s’agit d’une police exonérée.
Le stratagème consistait à enrichir le courtier au moyen de généreuses commissions que lui versaient les assureurs lorsqu’un des clients de celui-ci souscrivait ce type de produit financier. Puisque les paiements requis pour maintenir les polices en vigueur durant les premières années étaient moindres que les commissions versées au courtier, ce dernier remboursait aux clients la totalité des sommes versées aux assureurs durant la période nécessaire pour que les commissions deviennent acquises. Cette période expirée, le client pouvait alors choisir de cesser les versements à l’assureur, ce qui menait à la déchéance du contrat, ou de continuer ceux-ci afin de maintenir le contrat en vigueur. L’appelant a choisi de cesser les versements à partir du moment où il ne se faisait plus rembourser par le courtier.
L’Agence du revenu du Québec a cotisé l’appelant et lui a imputé des revenus additionnels de 250 000 $ pour l’année 2008 et de 44 250 $ pour l’année 2009. Selon elle, ces sommes qu’il avait reçues du courtier afin de lui rembourser les versements effectués en vertu du contrat constituaient des paiements incitatifs imposables en vertu de l’article 87 w) de la Loi sur les impôts. La juge de première instance a conclu que les conditions d’application de cette disposition étaient remplies.
L’appelant estime que la juge a erré en concluant que le contrat intervenu avec l’assureur portait sur l’exploitation d’un bien au sens de l’article 87 w) de la loi. Il soutient qu’il n’a pas, de fait, tiré un revenu du contrat puisqu’il n’a jamais perçu les revenus de placement crédités à son compte, et ce, étant donné que, pendant la durée totale effective du contrat, sa valeur de rachat était nulle. L’appelant prétend aussi que l’article 87 w) de la loi ne s’applique pas aux polices d’assurance-vie.
Décision
M. le juge Mainvillle: L’article 87 w) de la Loi sur les impôts et l’article 12 (1) x) de la Loi de l’impôt sur le revenu visent les mêmes objectifs et doivent être interprétés de la même façon.
D’une part, la couverture d’assurance prévue dans le contrat ne constitue pas un revenu tiré d’un bien, mais l’aspect prédominant du contrat, soit le compte de placement, peut indubitablement servir à engendrer des revenus. Ce compte de placement est donc un bien exploité dans le but d’en tirer un revenu, ce qui signifie qu’il est visé par l’article 87 w) de la Loi sur les impôts.
D’autre part, le fait que les revenus engendrés par une police exonérée soient exemptés d’impôt ne permet pas d’exclure l’application de l’article 87 w) de la Loi sur les impôts. Dans le présent cas, la portion des incitatifs reçus au regard des versements effectués par l’appelant aux assureurs aux fins du compte de placement prévu dans le contrat sont visés par cette disposition. Toutefois, la partie des incitatifs reçus qui se rapportent à la seule couverture d’assurance-vie ne le sont pas.
Enfin, le fait que l’appelant n’ait pas touché aux revenus engendrés en vertu du contrat parce que celui-ci avait pris fin avant qu’il ne puisse exercer son droit de rachat ne permet pas d’exclure l’application de l’article 87 w) de la Loi sur les impôts. Si le bien est raisonnablement susceptible d’engendrer des revenus, cette disposition peut s’appliquer, et ce, peu importe que celle-ci génère effectivement des revenus ou que le contribuable décide de s’en départir avant que cela soit le cas.
Le texte intégral de la décision est disponible <a href="http://citoyens.soquij.qc.ca/ID=BC5C65AD6AE1EC4D30C695148AA9DBE5">ici</a>
The post <a href="https://www.slaw.ca/2024/03/31/summaries-sunday-soquij-522/">Summaries Sunday: SOQUIJ</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/03/31/summaries-sunday-soquij-522/feed/</wfw:commentRss>
<slash:comments>0</slash:comments>
</item>
<item>
<title>Governments: A2J Is Mostly Your Mess to Clean Up</title>
<link>https://www.slaw.ca/2024/03/28/governments-a2j-is-mostly-your-mess-to-clean-up/</link>
<comments>https://www.slaw.ca/2024/03/28/governments-a2j-is-mostly-your-mess-to-clean-up/#comments</comments>
<dc:creator><![CDATA[Jordan Furlong]]></dc:creator>
<pubDate>Thu, 28 Mar 2024 11:00:57 +0000</pubDate>
<category><![CDATA[Practice of Law]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106508</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png">
It’s easy to blame lawyers for the failure to provide people with accessible and reliable legal solutions. But truthfully, I’d place only about a third of the responsibility for the A2J at the feet of the legal profession.
Lawyers’ contribution to the access failure in Canada falls into two broad categories:
Regulatory: Lawyers elected by other lawyers constitute the great majority of law society Benchers who have consistently blocked expanding the supply of legal services providers beyond the legal profession.
Commercial: Lawyers in private practice charge fees that are beyond most people’s financial capabilities, both in terms of amount and . . . <a href="https://www.slaw.ca/2024/03/28/governments-a2j-is-mostly-your-mess-to-clean-up/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/03/28/governments-a2j-is-mostly-your-mess-to-clean-up/">Governments: A2J Is Mostly Your Mess to Clean Up</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"> It’s easy to blame lawyers for the failure to provide people with accessible and reliable legal solutions. But truthfully, I’d place only about a third of the responsibility for the A2J at the feet of the legal profession.
Lawyers’ contribution to the access failure in Canada falls into two broad categories:
Regulatory: Lawyers elected by other lawyers constitute the great majority of law society Benchers who have consistently blocked expanding the supply of legal services providers beyond the legal profession.
Commercial: Lawyers in private practice charge fees that are beyond most people’s financial capabilities, both in terms of amount and uncertainty, driving ordinary people away from the justice system.
Neither of these problems is insoluble — lawyers could reform both these areas if they were sufficiently interested. But if we could wave a magic wand tomorrow and make lawyers in this country widely available and reasonably affordable, we’d still have an access problem. (In fact, as I wrote here a few years ago, <a href="https://www.slaw.ca/2020/10/05/access-to-justice-is-not-about-lawyers-and-judges/">free and plentiful lawyers would actually make that problem worse.</a>)
Most of the responsibility for our access failure, I’ve come to conclude, lies with governments, both federal and provincial. Governments’ contributions to our failure to ensure accessible and reliable justice again fall into two broad categories.
Institutional: Governments have allowed the public infrastructure of justice to deteriorate, from <a href="https://nationalpost.com/news/politics/federal-court-lambastes-liberals-for-failing-to-fill-judicial-vacancies">a federal government that seems incapable of appointing badly needed new judges</a> to <a href="https://www.cbc.ca/news/canada/toronto/ford-appointing-former-staffers-judge-selection-committee-1.7127050">provincial governments that don’t even understand why they can’t tell judges how to rule</a>. <a href="https://toronto.ctvnews.ca/cases-collapse-at-toronto-s-newest-courthouse-amid-staggering-number-of-closures-staff-shortages-1.6557378">Not enough courthouses and staff</a>, not enough public-facing resources in those courthouses, <a href="https://livewirecalgary.com/2024/02/16/its-something-thats-not-nothing-legal-aid-thresholds-increased-in-alberta-but-gaps-remain-says-cdla/">not enough money for civil legal aid</a>.
Democratic: Governments have failed to address people’s disempowerment in seeking justice solutions. They have not overruled law society protectionism, they have insufficiently educated people on their legal rights and remedies, they have failed to develop more alternatives to the calcified court system like the Civil Resolution Tribunal, and they have been largely indifferent to the ensuing justice gap.
Whereas lawyers’ sins against access are mostly those of commission — restricting supply and charging inaccessible fees — governments’ sins have been those of omission: failing to act, refusing to intervene, allowing the justice system to corrode and decay. (<a href="https://www.slaw.ca/2023/12/07/the-courts-can-help-solve-the-a2j-crisis-by-doing-less/">Courts and judges</a> have their own flaws to reckon with, including overly complex rules of procedure and needlessly formalistic standards for submissions.)
Anyone involved in the justice system who wants to point fingers of blame at others for the access crisis should remember <a href="https://www.complex.com/pop-culture/a/j-rose/tom-holland-andrew-garfield-and-tobey-maguire-recreate-spider-man-pointing-meme">the Spider-Man meme</a> — there are just as many fingers pointing back your way. Nobody is guiltless here. But the good news is that we can do something about all of this.
<ul>
<li>As lawyers, we can press for <a href="https://www.slaw.ca/2023/03/29/the-last-bencher-election-governance-reform-is-coming-to-legal-regulation-in-canada/">regulatory governance reform</a> and invest in modernization efforts to lower our costs of doing business to make our services more affordable while still maintaining profitability.</li>
<li>As friends of the court, we can collegially push judges to lower their procedural barriers and join them to demand better justice infrastructure.</li>
<li>And as citizens, we can demand that our elected representatives take justice in this country seriously, or organize and campaign in favour of challengers who will.</li>
</ul>
There’s plenty of blame to go around, and governments own more than anyone. But let’s not forget that fundamentally, we are the government — it’s run by people like us, led by people voted into office by us. Ultimately, the only people who can change that — the ones with the right and responsibility to change that, through public advocacy and at the ballot box — is us.
The post <a href="https://www.slaw.ca/2024/03/28/governments-a2j-is-mostly-your-mess-to-clean-up/">Governments: A2J Is Mostly Your Mess to Clean Up</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/03/28/governments-a2j-is-mostly-your-mess-to-clean-up/feed/</wfw:commentRss>
<slash:comments>4</slash:comments>
</item>
<item>
<title>Book Review: Art Law: Cases and Controversies</title>
<link>https://www.slaw.ca/2024/03/28/book-review-art-law-cases-and-controversies/</link>
<comments>https://www.slaw.ca/2024/03/28/book-review-art-law-cases-and-controversies/#respond</comments>
<dc:creator><![CDATA[Canadian Association of Law Libraries]]></dc:creator>
<pubDate>Thu, 28 Mar 2024 11:00:23 +0000</pubDate>
<category><![CDATA[Thursday Thinkpiece]]></category>
<guid isPermaLink="false">https://www.slaw.ca/?p=106051</guid>
<description><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png">
Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (<a href="https://www.callacbd.ca/Publications">CLLR</a>). CLLR is the official journal of the <a href="https://www.callacbd.ca/">Canadian Association of Law Libraries (CALL/ACBD)</a>, and its reviews cover both practice-oriented and academic publications related to the law.
Art Law: Cases and Controversies. By Paul Bain. Toronto: LexisNexis Canada, 2022. xxii, 362 p. Includes illustrations, table of cases, and index. ISBN 9780433509653 (softcover) $170.00.
Reviewed by Susan Barker 
Librarian Emeritus, 
University of Toronto
As author Paul Bain writes in his introduction to Art Law: Cases and Controversies, . . . <a href="https://www.slaw.ca/2024/03/28/book-review-art-law-cases-and-controversies/" class="read-more">[more] </a>
The post <a href="https://www.slaw.ca/2024/03/28/book-review-art-law-cases-and-controversies/">Book Review: Art Law: Cases and Controversies</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></description>
<content:encoded><![CDATA[<img src="https://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-today.png"> Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (<a href="https://www.callacbd.ca/Publications">CLLR</a>). CLLR is the official journal of the <a href="https://www.callacbd.ca/">Canadian Association of Law Libraries (CALL/ACBD)</a>, and its reviews cover both practice-oriented and academic publications related to the law.
Art Law: Cases and Controversies. By Paul Bain. Toronto: LexisNexis Canada, 2022. xxii, 362 p. Includes illustrations, table of cases, and index. ISBN 9780433509653 (softcover) $170.00.
Reviewed by Susan Barker 
Librarian Emeritus, 
University of Toronto
As author Paul Bain writes in his introduction to Art Law: Cases and Controversies, the last time a new book on Canadian art law was published was 1980. At the time, Aaron Milrad and Ella Agnew’s The Art World: Law Business and Practice in Canada identified the “photocopy machine” as the next big threat to copyright protection. How the art world has changed! Forty years after the publication of Milrad and Agnew’s book, the law has—in addition to the classic legal issues of copyright and moral rights—newer matters like NFTs (non-fungible tokens), rapidly advancing technology, social media, and changing social mores to contend with. Looking at this assortment of issues, it is clear that art law is not one cohesive body but is woven through several areas of law, including intellectual property, taxation, copyright, fraud, and censorship, as well as being a reflection of the current social environment. This text provides a modern look at these issues and how they affect artists, collectors, and cultural institutions.
The author is a lawyer who specializes in entertainment, media, and intellectual property law, and is also active in the visual arts community, having served on the boards of several arts organizations and galleries. Eleven other experts, comprised of experienced practitioners and academics, each with a particular knowledge and enthusiasm for the subject, have also contributed chapters. Each contributor’s biography also mentions their own favourite work of art.
Despite this text being entitled Art Law: Cases and Controversies, its scope is limited to the visual arts—painting, sculpture, and photography—and does not include issues specific to the performing or literary arts. The text focuses on the Canadian and American experience, although there are some references to British and European perspectives for history, context, and comparison.
Each chapter begins with a vignette from popular culture or a leading case that draws the reader into that chapter’s topic. These include the question of who owns the copyright in a photograph of Eddie Van Halen’s guitar, whether the Eaton Centre had the right to install Christmas ribbons on Michael Snow’s Canada geese installation (called Flight Stop), and whether Naruto, the “selfie” macaque, has the right to copyright in his own image. Banksy’s failed attempts to copyright his work and Gustav Klimt’s stolen Portrait of Adele Bloch-Bauer I also make an appearance. These examples and their accompanying images are very effective in illustrating, both figuratively and literally, the unique legal issues being discussed, creating a narrative thread that makes the text engaging, accessible, entertaining, and, to some extent, gossipy. However, this does not mean the text is frivolous. On the contrary, historical context, case law, and legislation provide a serious, practical, and academic examination of the issues at hand.
The text begins with a clear and comprehensive overview of the two traditional aspects of art law in Canada and the United States. The first is copyright. In the Canadian chapter, Bain traces the history of copyright, from its origins in 18th century England to the modern-day Copyright Act, and looks at how to establish copyright, how it is protected, and how it has been applied by Canadian courts. The American chapter follows the same pattern, including the history of the protection of copyright in the U.S. Constitution and the current Digital Millennium Copyright Act. Of particular interest to academic librarians are the sections on fair dealing and fair use that appear in each respective chapter.
The second traditional aspect is the concept of moral rights. Moral rights enable artists to preserve the “unique expression of [their] work” (p. 37), meaning that works of art cannot be distorted, modified, or mutilated (p. 35) without the permission of the artist. The artist retains their moral rights even after the sale of a work, which is why Michael Snow was successful in getting the festive ribbons removed from Flight Stop at the Eaton Centre.
Woven throughout each chapter is an awareness of the current social considerations that affect art and art law. Chapter 12, “Censorship and the Visual Arts,” provides a comprehensive overview of censorship in Canada, including state censorship on the grounds of obscenity, child pornography, and hate speech, as well as curatorial censorship, which occurs when art organizations attempt to manage public outrage and political sensitivities with a form of pre-emptive self-censorship by withdrawing potentially controversial pieces of art from display. Curatorial censorship is a specific response to the way in which obscenity charges were used as a weapon in the culture wars of the 1980s and ’90s. As the author notes, “artists, particularly those from historically-marginalized communities—LGBT, people of colour, and/or women” (p. 293) were disproportionately challenged on the grounds of obscenity.
Chapter 11, “’Tis Mine and I Will Have It … Provenance and Restitution Under Quebec Civil Law,” looks at how, according to Québec’s civil law, the ownership of a work of art vests in the possessor after a certain period of time, even if that work of art is stolen property. This model of ownership contrasts with the common law, where the rights of the original owner are favoured and is particularly problematic when looking at “cultural objects stolen from First Nations, family heirlooms confiscated during World War II, and historical treasures from cultural institutions” (p. 276).
Chapter 13, “Resale Payment Rights for Artists,” proposes that legislation be enacted to ensure that artists receive payment whenever a work is resold. As a justification for this proposed legislation, the author uses the example of several female artists whose work was undervalued for most of their lifetimes. One of the artists in question, Carmen Herrera, had her first solo exhibit at the age of 101, vastly increasing the value of her work, and yet has “no legally enforceable right to a share in resale proceeds when current owners resell [her] works” (p. 307) at a much higher price than that of the original purchase. The author notes that female artists and artists of colour were often dismissed by critics and galleries in their early careers and that resale payment rights would address some of these inequities.
Further chapters examine trademarks (including NFTs), taxation of cultural property, art fraud, the restitution of Nazi-looted art, and particular legal issues around photography that include privacy, ownership of images, and the male gaze and exploitation of women.
Art Law: Cases and Controversies is accessible to a broad audience. Its writing makes it a valuable resource for artists, collectors, and art institutions looking to understand their rights and responsibilities. Legal practitioners will benefit from the real-world aspects of this examination of art law, and academics will benefit from the additional social and cultural commentary.
The post <a href="https://www.slaw.ca/2024/03/28/book-review-art-law-cases-and-controversies/">Book Review: Art Law: Cases and Controversies</a> appeared first on <a href="https://www.slaw.ca">Slaw</a>.
]]></content:encoded>
<wfw:commentRss>https://www.slaw.ca/2024/03/28/book-review-art-law-cases-and-controversies/feed/</wfw:commentRss>
<slash:comments>0</slash:comments>
</item>
</channel>
</rss>

If you would like to create a banner that links to this page (i.e. this validation result), do the following:

Download the "valid RSS" banner.
Upload the image to your own server. (This step is important. Please do not link directly to the image on this server.)
Add this HTML to your page (change the image src attribute if necessary):

<a href="http://www.feedvalidator.org/check.cgi?url=http%3A//www.slaw.ca/feed"><img src="valid-rss-rogers.png" alt="[Valid RSS]" title="Validate my RSS feed" /></a>

If you would like to create a text link instead, here is the URL you can use:

http://www.feedvalidator.org/check.cgi?url=http%3A//www.slaw.ca/feed

Home · About · News · Docs · Terms