Executive orders are in the headlines again. As every child in the US is taught in school, the federal government is made up of three branches, the Executive, the Legislative, and the Judiciary. This arrangement was designed as part of an intricate system of checks and balances intended to avoid giving too much power to any part of the government. In recent years there has been much debate over the limits of executive orders, particularly those executive orders relating to immigration, and this debate has been brought to the fore in recent weeks because of executive orders signed by the . . . [more]

In these extraordinary times of the pandemic, unusual steps must be taken to protect the public interest. On March 25, 2020, the Government of Canada’s sweeping COVID-19 Emergency Response Act received royal assent. Among its many measures is a compulsory licensing clause for patents that enables the Government “to make, construct, use and sell a patented invention to the extent necessary to respond to a public health emergency that is a matter of national concern.” This suspension of patent rights is not to be without recompense for the patent holder, but that, too, was framed in unusual ways on behalf . . . [more]

I was recently invited to participate in a Runnymede Society debate against Asher Honickman—a co-founder of the Society—on “the future of legal education and curriculum.” I paused. I consulted. I reflected. And now, I am declining that invitation. But I want to explain why.

As a former debater and mooter, I love to argue. But as a legal scholar—and especially, a scholar of critical race theory—I am mindful of power and its inseverability from the conversations we engage in. Thinking about power, and its particular dynamics within the context of this proposed Runnymede Society debate, is ultimately what led me . . . [more]

On August 26th, Lexbox benefited from a major update. Among the new features included in this release is the capacity to link to the CanLII website the legal citations from your documents, as discussed in last month’s post. We invite you to try it out by submitting a few of your own files to your Lexbox account and checking how they get interconnected with CanLII’s content.

But this post is about Lexum’s next step in providing Knowledge Management as a Service (KMaaS): making it easier for you to keep track of changes to public legal information affecting the issues . . . [more]

If you’re reading this blog and are a litigator in Toronto, there’s a fair chance that you’ve been involved either as a participant or an instructor in Osgoode’s Intensive Trial Advocacy Workshop (ITAW). ITAW is a multi-day program that has run every summer for the last 40 years and has had thousands of participants from Toronto, from across Canada, and from other parts of the world. It’s a rigorous program, characterized by advocacy performance in a supportive environment, personalized feedback from experienced instructors from the Bench and Bar trained in ITAW’s teaching methods, and a culminating mock jury trial presided . . . [more]

It was not a surprise to us when classes and events were cancelled on campus mid March 2020. As an international lawyer with an interest in international disaster law I had been following the international response with dread. A faculty-led COVID-19 response team was already in place and meeting daily when the call came to transition to on-line delivery. Although we largely had to cancel our events, courses that had materials left to be delivered moved swiftly to online platforms and the exam schedule was revised from primarily sit-down, to entirely take-home. At the forefront of our deliberations was the . . . [more]

Eight months and a pandemic ago, the Supreme Court of Canada released the Vavilov trilogy (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65). While Vavilov may have introduced a significant change in how the standard of revie is determined, it confirmed that there remain only two standards: correctness and reasonableness. However, in British Columbia, the third standard of reasonableness simpliciter remains fossilized through the provisions of the Administrative Tribunals Act, SBC 2004, c. 45 (“ATA”). What interests me at this point is how the BC courts have applied Vavilov, given the . . . [more]

One of the first instances of recorded law we are aware of is the Code of Hammurabi. It was literally etched in stone. If you read about it, what strikes you is how little has changed about how we record laws in roughly 3700 years. We learned to put laws on parchment. Then paper. Then typesetting, and photocopying. Eventually, we began to digitize images of the pieces of paper on which the law was written. But all of these were just different ways of recording the etchings in the stone so people could use them.

While significant progress has . . . [more]

Much has been written over the past weeks about the Supreme Court of Canada decision in Uber v. Heller, one of the most anticipated decisions of the year – at least in arbitration and employment law circles.

I won’t go into a detailed analysis of the decision in the face of much more learned comments. But I do want to suggest that the Court provides some practical lessons for those drafting and those seeking to engage (or avoid) arbitration agreements.

First, and most important, don’t try to use arbitration to frustrate legitimate claims.

Sadly this has become a common . . . [more]

It’s been a long time since I did an analysis of the constitutional give-and-take between the courts and the legislature when it comes to Charter decisions, so I’m not going to opine on Justice Minister David Lametti’s remarkable musings last month that the government might legislate a solution to court backlogs caused by enforcement of the Jordan decision during the pandemic.

As the defence lawyer states in the linked article, the Supreme Court’s ruling already allows for flexibility around “illness or extraordinary circumstances,” and COVID-19 certainly qualifies as both. There’s no need to legislate a solution to Jordan backlogs . . . [more]

[This post was a collaboration written by Anna Sallah and Julie Macfarlane.]

COVID-19 has driven up anxieties and everyday challenges for everyone, but for the self-represented litigant, it has raised new and especially difficult issues. Being a self-represented litigant on a normal day is no small feat: it involves tackling issues ranging from searching for and identifying legal resources, to applying arcane and complex rules and procedures, all while navigating unfamiliar territory.

Moving from dealing with the regular uncertainties of being an SRL to being an SRL during COVID-19 is like moving from the frying pan, to the fire.

As . . . [more]

On May 21, 2020, the Federal Court released a decision (2020 FC 629) strongly in favour of Justice Patrick Smith, a judge of the Ontario Superior Court of Justice, and highly critical of the Canadian Judicial Council. It is unfortunate that the decision is so one-sided. The CJC deserves some of the criticism. However, the position taken by the CJC is not as untenable as the court claims. More importantly, there is legitimate cause for concern about Justice Smith’s conduct.

This litigation arises from events in the spring of 2018 when Justice Smith accepted an appointment as the Interim Dean . . . [more]