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Windsor Yearbook of Access to Justice / Recueil annuel de Windsor d'accès à la justice
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This is an Open Access Journal

Open Access journal
ISSN (Online) 2561-5017
Published by Érudit

[139 journals]

Swimming Up Niagara Falls! The Battle to Get Disability Rights Added to
the Canadian Charter of Rights and Freedoms
- Abstract: M. David Lepofsky
  This is the personal memoir of blind lawyer and volunteer disability rights advocate David Lepofsky. It describes his involvement in and perspectives on the successful fight from 1980 to 1982 to get Canada’s proposed Charter of Rights amended to guarantee equal rights for people with disabilities. It includes a foreword by the Hon. Rosalie Abella, former Justice of the Supreme Court of Canada. This memoir recounts the little-known saga of the disability amendment to the Charter. Few know that equality for people with disabilities was the only constitutional right added to the Canadian Charter of Rights and Freedoms during the widely publicized eighteen-month battle over the patriation of Canada’s Constitution, from October 1980 to April 1982. It is aimed at anyone interested in disability rights, human rights, Canadian political or legal history, social justice advocacy, and Canadian constitutional law. It provides a mix of legal and legislative history, personal autobiography, grassroots advocacy strategy and reflective commentary on lessons learned. It compares social justice advocacy techniques in 1980 to those practiced in the disability rights arena four decades later.
Bound by Blame: Sentencing, Colonialism, and Fetal Alcohol Spectrum
Disorder
- Abstract: Sarah-jane Nussbaum
  Gladue and Ipeelee send important messages to judges, but messages that have tensions within them that reflect the broader tensions of using the criminal law system to acknowledge ongoing state involvement in discrimination against Indigenous Peoples. The heart of the tension is that the criminal law system is built around assigning individual blame. I look closely at examples of judges struggling with inadequate tools to follow the Supreme Court of Canada’s guidelines to acknowledge and redress the harmful impacts of colonialism within the constraints of their job of assigning individual blame. The result, unfortunately, is a consistent failure to recognize the Canadian state’s ongoing role in colonial oppression. This article explores these tensions in the context of a particular manifestation: the judicial practice of blaming Indigenous mothers for the fetal alcohol spectrum disorder affecting their accused sons. The analysis illuminates the depth of the tensions of a common law criminal justice system in a colonial state: in the process of sentencing Indigenous offenders living with FASD, judges both strongly contest, and subtly rely upon, harmful colonial logics. I propose that a standing to blame analysis could assist judges in identifying, and responding to, the state’s own role in causing, or being complicit in, an Indigenous individual’s experiences of injustice. When the state has played such a role, the state is not justified in blaming the individual through the criminal law. The benefit of this kind of approach is that it would highlight the inappropriateness of the state’s use of individual blame to respond to harms arising in the context of colonialism and inequality.
Tracing Colonial Entrenchments in the Development of the Central Bank of
Sri Lanka
- Abstract: Shanthi E. Senthe
  Sri Lanka’s recent tumultuous economic crisis has generated grave uncertainty in the global financial ecosystem. Sri Lanka’s fiscal demise, described as the “canary in the coalmine”, has served as a glaring cautionary tale for financial regulators. The International Financial Institutions continue to warn of subsequent economic fallouts as global debt issues simmer to the surface. Sri Lanka’s economic fallout serves as a story besieged by colonial, political and current geopolitical conditions, which are further compounded by the end of the brutal civil war, foreign debt and post Covid-19 consequences. This paper, however, explores the cracks in the economic foundation using historical moments that paved the legal framework for the emergence of a centralized banking institution. This historical inquiry includes the origins of the financial inclusion discourse in Sri Lanka, which encompasses both colonial and post-colonial temporalities. As a result of Sri Lanka’s fiscal collapse, the Central Bank of Sri Lanka’s role has been under scrutiny. The economic crisis began in 2019, yet the financial regulator’s failure to engage in mitigating tactics to combat the rapid decrease in foreign reserves, rise in sovereign debt, financial mismanagement and political interference is underexplored. In order to further understand how the CBSL, the country’s first financial steward and custodian of fiscal stability, became ineffective, a closer examination of its genesis is made. This paper serves to examine the formation of centralized banking through a particular conceptual goal of ‘financial inclusion’, which catalyzed the establishment of the current central bank structure in Sri Lanka. As such, the financial policies designed and developed crafted by the financial regulator are explored through the lens of financial inclusion.
Safety in Numbers or Lost in the Crowd' Litigation of Mass Claims and
Access to Justice in Ontario
- Abstract: Suzanne Chiodo
  Ontario’s Class Proceedings Act [CPA] is 30 years old. In the past three decades, it has inspired similar legislation across Canada and around the world, and its capacity for bringing about social change has been widely acknowledged. But, like all things that mature, some cracks are beginning to show. The certification test under section 5 of the CPA has been made more restrictive by recent legislative amendments. In addition, class action practitioners are starting to recognize that the CPA can be a blunt instrument and that some mass claims are better litigated outside of that context. While smaller claims may find safety in numbers in a class action, larger claims that require more individualized treatment may get lost in the crowd. Outside of the CPA, however, there is minimal guidance in this area, and this can lead to uncertainty and delay.This article proposes a set of informal guidelines for the litigation of mass claims in Ontario, informed by multidistrict litigation in the US and group litigation in England & Wales, as well as the theory and history of mass claims typology. This guidance will reduce uncertainty and delay by facilitating agreement between parties on procedural steps and provide much-needed direction for a growing phenomenon.
Bargaining Sectoral Standards: Towards Canadian Fair Pay Agreement
Legislation
- Abstract: Sara Slinn and Mark Rowlinson
  In response to the need for more inclusive collective bargaining legislation to combat inequality and improve conditions in the workplace, this paper considers the recently introduced New Zealand Fair Pay Agreement [FPA] sectoral bargaining framework and offers a preliminary series of ideas and proposals setting out how an FPA model for bargaining sectoral standards could work in Canada. It is intended as the beginning of a more detailed discussion on the development of an FPA regime culminating in model legislation that could be adapted to different Canadian jurisdictions. Guided by principles of accountability, integration, and inclusivity, this proposal is intended to apply to all workers in an employment relationship – including dependent contractors and gig and platform workers. The proposed system is to be structured as a new, stand-alone statute, drawing upon existing institutions administering collective bargaining legislation, incorporating some familiar collective bargaining concepts: good faith bargaining, dues check-off, and unfair labour practice protection. It is intended to preserve existing collective bargaining arrangements by excluding specified sectors with existing high union density or existing sectoral bargaining. However, it is also intended to offer a new, sectoral bargaining option based on industry or occupation sectors, producing FPA “sector agreements” containing minimum standards applying to all employees and employers in the sector. This proposed framework would operate in parallel and in conjunction with the existing enterprise-level collective bargaining system.
Planning Law and Accessibility: Third Party Permit Appeals by Persons with
Disabilities
- Abstract: Stephanie Chipeur
  A physical obstacle, such as a step at the entrance of a building, is the product of the interplay of regulations that govern what and we build. The human rights complaint process can provide a remedy to people with disabilities when they are excluded from public spaces. But there are limits to what can be accomplished by way of a human rights complaint. Human rights commissions and tribunals are not competent to mediate or adjudicate complaints about accessibility before construction commences, because any alleged discrimination is only hypothetical. But just because human rights law is limited in this way should not mean that people with disabilities must wait to encounter inaccessibility before they can influence what and how we build. Planning law legislation in Canada mandates public consultation and it also gives members of the public the right to contest planning decisions by way of an appeal. For people with disabilities, this would mean challenging development and building permits that have already been issued if the proposed development is not accessible.After a municipality issues a development permit, most jurisdictions in Canada allow for an appeal by a third party. There are also some jurisdictions that also allow for this type of appeal after the municipality issues a building permit. If successful in an appeal, members of the public who are opposed to a project, or some of its aspects, may block construction altogether or require modifications. These appeal processes could offer an opportunity for people with disabilities to have a direct impact on how we construct the built environment. An appeal at the permit stage is a promising complement to a human rights complaint, because it is prospective rather than retroactive.
Exploring the Importance of Criminal Legal Aid: A Canadian Perspective
- Abstract: Marcus Pratt and Trevor CW Farrow
  There is a growing global recognition that, in order to address the current access to justice crisis, more research, together with a better understanding of data, is needed. This article, through an examination of existing legal aid research primarily in the area of criminal law, explores some of what we know and do not know about the relative benefits and costs of providing different kinds of criminal legal aid services. Although not a comprehensive review of all available research, this article identifies data strengths and gaps and the need for further research and reforms.
The Nightingale Court Experiment: Lessons for Access to Justice in a
Post-Pandemic World
- Abstract: Natasha Naidu
  The literature is yet to consider the contribution of Nightingale Courts to access to justice in England and Wales during the COVID-19 pandemic. Nightingale Courts are courts that have been set up in repurposed buildings, such as town halls, hotels, and theatres, to facilitate socially distanced trials and hearings. I fill this gap by asking: to what extent have Nightingale Courts addressed access to justice concerns during the pandemic, and what lessons do Nightingale Courts hold for access to justice across jurisdictions and in the future' I argue that though costly and complex, Nightingale Courts have helped to prevent a further worsening of delay during the pandemic. Then, I explore the lessons of the Nightingale Court experiment for access to justice across jurisdictions and in a post-pandemic world. I consider Nightingale Courts as an experiment for legal architecture, informal justice, and adaptation and resilience. I conclude that Nightingale Courts have maintained and preserved access to the legal system during a time of crisis and thereby contributed to the resilience of the system.

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