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- Students in Name Only: Improving the Working Conditions of Articled
Students Via the Application of the BC Employment Standards Act
Abstract: Chase Blair
Articled students in Canada tend to be exempt from provincial employment standards legislation, which govern minimum hourly wages and overtime and statutory holiday pay rates. Exemption from these provisions, along with the strong power dynamic present in the articled student-principal relationship, has fostered exploitative working conditions for articled students. To justify the exclusion of articled students from employment standards legislation, supporters of the status quo have propagated the narrative that articled students’ labour is not that of an employee, despite evidence to the contrary. In recent years, advocates have proposed various reforms to improve the working conditions of articled students, but they have not targeted employment standards legislation itself. With a focus on British Columbia, this article argues that a better solution to improve the working conditions of articled students is to apply the base provisions of the Employment Standards Act. Further, on closer examination, assertions that such an approach is contrary to the public interest are more rhetorical than substantive.
- The Triumph of the “Therapeutic” in Quebec Courts: Mental Health,
Behavioural Reform and the Decline of Rights
Abstract: Emmanuelle Bernheim
In the Canadian province of Quebec, the role of the courts is crucial in civil, criminal or administrative proceedings concerning mental health: the courts must ensure both public safety and the protection of the rights of defendants. Therapeutic-jurisprudence theory has had a major influence on mental-health court practice over the past 30 years. According to that theory, the court system must take into account the therapeutic effects of the law and the judicial process to promote adherence to treatment by defendants. The empirical analysis of judicial practices in Quebec shows that courts have been the main actors in the decline of rights in mental health. Therapeutic justice has been dominated by discriminatory, controlling and reformist tendencies. These include the trivialization of concerns about the judicialization of groups living in precarious conditions, inconsistent and lifestyle-oriented legal arguments, and treatment-related judicial decisions.
- People With Disabilities Need Lawyers Too! A Ready-To-Use Plan for Law
Schools to Educate Law Students to Effectively Serve the Legal Needs of
Clients With Disabilities as Well as Clients Without Disabilities
Abstract: David Lepofsky
Canada's legal profession is not sufficiently equipped to meet the legal needs of clients with disabilities. For decades, legal education focused primarily, if not exclusively, on training law students to serve clients without disabilities. A law student can complete their legal education while learning little about how to meet the legal needs of clients with disabilities. Law students need to be effectively trained to serve clients with disabilities as well as clients with no disabilities. Law faculties commendably focus increasingly on Equity, Diversity, and Inclusion. Disability should be a strong and equal focus in their equity, diversity and inclusion strategies. How can a law school fix this' This article gives a roadmap, and gives further resources enabling law deans and law teachers to quickly take action. This article first describes why it is important to expand a law school's disability curriculum. It spells out disability content that should be shared with students, including a course-by-course delineation of topics. It offers practical, cost-effective options for law schools to systematically work towards permanently embedding disability content in their programs. A law school should make a concerted policy decision and create an action plan. This article’s tools point the way.
- The Influence of the Convention on the Rights of Persons with Disabilities
on Canadian Jurisprudence in the First Decade Since its Ratification
Abstract: Jessica De Marinis, Kerri Joffe and Rachel Weiner
Canada’s ratification of the United Nations Convention on the Rights of Persons with Disabilities [CRPD]in 2010 was met with hope and excitement that it would lead to much-needed improvements in equality, inclusion and accessibility for persons with disabilities in Canada. This paper explores the impact the CRPD has had on Canadian jurisprudence in the decade since Canada ratified the treaty. Our analysis of the jurisprudence indicates that Canadian courts and tribunals have employed a variety of approaches to the CRPD, for which we provide illustrative examples. Overall, the CRPD has impacted the reasoning or outcome in a small number of cases, but has not exerted great influence in Canadian jurisprudence to date. Despite this limited impact, a number of emerging factors suggest that the CRPD may well become more influential in Canadian jurisprudence in the future.
- Mapping Racial Geographies of Violence on the Colonial Landscape
Abstract: Ingrid Waldron
This paper unpacks the concept of “spatial violence” to examine the social justice dimensions of race, place, space, and the Indigenous and Black communities in Canada. The paper highlights the larger socio-spatial processes that create disproportionate exposure and vulnerability to the harmful social, economic, and health impacts of inequality in Indigenous and Black communities. It also argues that the lived experience of spatial violence and toxic exposure live together and that it is not possible to understand their impacts in Indigenous and Black communities in isolation. The paper also disrupts traditional notions of “the environment” that are centered on harmonizing cities and nature by highlighting the symbolic and materiality of space, especially with respect to how it harms Indigenous, Black and other racialized communities.
- Integrating Social Work Within Legal Clinics: An Inter-Professional
Perspective to Address Social-Legal Needs
Abstract: Alicia Lam, Vanessa Emery, Renee Griffin and Michael Saini
This project is a key demonstration of the benefits of social workers practising alongside lawyers within a legal clinic. Inter-professional practice between lawyers and social workers responds holistically to the needs of individuals experiencing socio-legal issues by both addressing their legal issues while supporting their mental, emotional, and spiritual well-being and adjustment. We provide lessons learned based on a new initiative that integrates social work within a legal clinic as a means of providing opportunities to receive individualized support while addressing legal issues.
- The Consequences of Unfreedom: Learning from Story Amidst a Global Climate
Crisis
Abstract: Meghan Robinson
As the world navigates the impending consequences of climate change, Canada remains one of the few countries to reject the right to a healthy environment for its citizens within the Canadian Constitution. Although Canada purports itself to be a free and democratic society, many argue that their freedoms are continually neglected by laws that continue to disregard the environment and, therefore, their right to a healthy existence. This article is an investigation into a particular word that is woven throughout Canada’s Constitution: “freedom.” It is an investigation into the conflicting understandings of the word and how these contrasting meanings have impacted Canada’s Constitution and its relationship to land. This article analyzes the history of freedom as seen through a liberal belief system and contrasts this understanding with Indigenous concepts of freedom, as told through Haisla and Nuu-chah-nulth stories. These narratives explore how the differing concepts of freedom have affected relationships with the land and the laws that govern the land. Finally, the discussion of these themes draws upon the possibility of using story within Canada’s laws to change the Constitution’s current relationship with the land in order to mitigate the potential effects of climate change. I argue that the liberal, colonialist world view is ever present in our current legal system and is in fact facilitated through the word “freedom.” Until we begin to re-story our Constitution through a diversity of understandings and world views, Canada will continue to ignore the looming ramifications of climate change.
- Incomplete Justice: The Costs of Partial Indemnity
Abstract: Adil Abdulla
In the mid-twentieth century, Ontario abandoned a simple, full indemnity costs rule in favour of a discretionary, partial indemnity costs regime with hundreds of sub-rules. This article argues that this was a mistake. Partial indemnity has no doctrinal, principled, or practical benefits that cannot be incorporated into a full costs regime. Additionally, partial indemnity carries significant costs to access to justice. Instead, this article proposes a costs regime that incorporates the best features of both the old rule and the new regime. In brief, it proposes a full indemnity rule; capped at the losing party’s costs; with exceptions for divided success, impecuniosity, and public interest cases; and discretionary fines for engaging in misconduct or dilatory tactics. Collectively, these rules would advance access to justice more than the existing costs regime.
- “A So-Called Tenants’ Union”: Defining the Organizational Power of
Tenants within and outside the Law
Abstract: Seema Shafei
How is a tenants’ union defined within the parameters of the law' How have tenants been defining themselves as a union outside of the law' This paper will examine the answers to these questions by laying out the historical context of the current rental regime in Ontario, analyzing the current case law on tenant associational activity, and highlighting the organizational tactics that tenants’ associations have used to build power where the law has failed to protect their interests. While advancing a legal case for robust tenant associational rights may force landlords to the bargaining table, the future of tenants’ associations in and outside of the law should draw on lessons learned from the labour movement in Canada with a “whole-worker organizing” approach in mind.
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Open Access journal
