Damaging the Charter: Ernst v. Alberta Energy Regulator

This post was originally published by thecourt.ca on January 20, 2017.

In a fascinating, divided, and ultimately underwhelming start to 2017, the Supreme Court in Ernst v. Alberta Energy Regulator, 2017 SCC 1, grapples with the availability of Charter damages in the face of a statutory bar to civil litigation against a public regulator. Continue reading “Damaging the Charter: Ernst v. Alberta Energy Regulator”

What’s in a Plan?

On January 9, 2017, Osgoode Hall Law School’s Faculty Council unanimously approved in principle the Law School’s next Strategic Plan – “Access Osgoode, 2017-2020.” This new Strategic Plan, to be posted shortly on our website, aims at progressive, future-oriented goals and aspirations, as well as a commitment to Osgoode’s rich history and tradition. The “Access Osgoode” Plan commits the Law School to advancing five specific themes and goals:

1) Accessibility;
2) Community Engagement;
3) Experiential Education;
4) Reconciliation with Indigenous communities; and
5) Research Intensification.

Planning can be a long and winding road – at Osgoode, we began the process for the “Access Osgoode” Strategic Plan over 18 months ago, by assessing the outcomes of Osgoode’s previous Plan, “Experience Osgoode” and included a range of retreats, town halls, roundtables, research and multiple drafts. Students, staff and faculty collaborated on the development of Osgoode’s Plan, which in turn builds on other University Plans (including York’s University’s Academic Plan and other strategic initiatives). So, now what? Where does a Plan take us? How can this amount to more than words on a page? That is the question to which I devote some reflections in this post.
Continue reading “What’s in a Plan?”

Marie Henein, Universities and the Sounds of Silence

I was sitting with Marie Henein at a dinner this weekend, discussing the debates her speaking tour at several Canadian Universities have sparked. While Michael Goldbloom, the Principal of Bishops University, notably wrote in defence of that University’s invitation to Marie Henein to speak, I was reminded that too many leaders in the legal and academic community have simply remained on the sidelines.
Continue reading “Marie Henein, Universities and the Sounds of Silence”

Designing Administrative Justice

With so much roiling around us, I am reluctant to confess that the design of administrative tribunals has been top of mind this month, but there it is. I have been revising a paper on the topic, forthcoming in the Windsor Yearbook of Access to Justice. I presented on the topic as part of CLEBC’s Annual Administrative Law Conference a couple of weeks ago, and recently have participated in training and education retreats for two different tribunal reform initiatives. Why are so many people in the administrative justice community turning to design to cure what ails administrative law decision-making? Below, I explore the possibilities and limits of design thinking to reinvent administrative tribunals, discretionary decision-making schemes, and even public inquiries. The discussion below builds on earlier forays in posts from last year exploring the intersection between law and design on “Justice By Design”  and “Legal Education by Design”

Continue reading “Designing Administrative Justice”

What York Needs in a New President

York is in the midst of a search for a new President. As we have seen at peer Universities throughout Canada (and elsewhere), this process may hold both promise and peril. In light of the importance of this leadership role (and the fact I am neither a member of the search committee nor a candidate), I wanted to share my reflections on the 5 areas of strength I believe York needs most in a new President , which I also shared with the Chair of the search committee when asked for my input over the summer.

Continue reading “What York Needs in a New President”

Institutions, Constitutions & Connections!

On September 26th and 27th, Osgoode welcomed back one of its most accomplished graduates – Asher Grunis, who retired as President of the Supreme Court of Israel in 2015. In the 1970s, Dr. Grunis spent several years studying at Osgoode as a doctoral student, ultimately completing a dissertation on the Freedom of Assembly in Canada. The Symposium focused on how we institutionalize constitutional ideas, and included spirited discussions on judicial appointments, how best to protect minority rights in a democracy, the role of a notwithstanding clause, and the role, more broadly, of the Judge.

Continue reading “Institutions, Constitutions & Connections!”

The Long and Winding Road to Diversity and Inclusion on Canada’s Supreme Court

[This comment piece first appeared on August 9, 2016 on the IRPP/Policy Options site at http://policyoptions.irpp.org/magazines/august-2016/the-supreme-courts-long-road-to-transparency-and-inclusiveness/]

Prime Minister Justin Trudeau has hailed the new approach to Supreme Court appointments unveiled last week as “open, transparent and…a higher standard for accountability.” While devils may lurk in some details, the proposals promise a more transparent and inclusive appointments process, and for this reason alone they are significant and welcome.  The changes are also intended to create a more diverse and inclusive Supreme Court. The focus on diversity as an important characteristic of the Court (and its justices) deserves more attention, as it engages the complicated relationship between geographic representation, professional accomplishment, knowledge and analytic ability, demographic background, bilingual capacities, personal attributes and temperament, and experience. Continue reading “The Long and Winding Road to Diversity and Inclusion on Canada’s Supreme Court”

Law School as Social Innovation

I have just finished an eventful week of talks and touring in New Zealand (or, Aotearoa, as it is known in the Maori language), culminating in an address in Wellington at the Australasian Law Teacher’s Association (ALTA) annual conference on the idea of Law Schools as social innovation. I heard from a number of Australian, New Zealand, and South Pacific colleagues about the challenges Law Schools in that part of the world face, from too many Universities chasing too few students, to the bifurcation of legal education between traditional LL.B. programs and emerging J.D. programs, to the rise of managerialism and a fetish for research performance metrics, to the search for Reconciliation with Indigenous peoples through legal education. Some of these dynamics are distinct to the Australasian model, while others resonate more broadly. Similarly, the reflections on legal education as social innovation I shared are dynamics in many ways particular to North American legal education, but which include elements I believe to be relevant more broadly. Below I summarize the points I expressed.

Continue reading “Law School as Social Innovation”

20 years later – Reflections of a 1996 Call on Change!

This month marks 20 years since I was called to the Bar in 1996. As it happens, we are marking the 20th anniversary of milestones in the legal community with far greater significance, and I want to highlight just a few of those as they reflect the many ways in which the legal profession of today is different and better than the one I joined almost a generation ago.

Continue reading “20 years later – Reflections of a 1996 Call on Change!”

Open Letter to Prime Minister Trudeau on Federal Appointments

[this letter was sent to Prime Minister Trudeau and Minister of Justice Wilson-Raybould on May 5, 2016]]

May 5, 2016
The Right Honourable Justin Trudeau, P.C., M.P.
Prime Minister of Canada
Langevin Building
80 Wellington Street
Ottawa, Ontario K1A 0A2

Dear Prime Minister,

Re: Governor-in-Council Appointments to Adjudicative Tribunals

We were all pleased to see the announcement in February of your intention to develop a more rigorous, open, transparent, and merit-based GIC appointments process for the federal “commissions, boards, Crown corporations, agencies and tribunals”. This is a welcome and long overdue initiative.

Your announcement and the Canadian Bar Association’s April 27, 2016 response, which we endorse, have prompted us to write to encourage you, in developing new GIC appointments processes generally, to pay particular and special attention to the processes for appointing – and re-appointing – the chairs and members of federal tribunals whose function is mainly the adjudication of legal rights disputes including, for example, the Canadian Industrial Relations Board, the Canadian Human Rights Tribunal and the Social Security Tribunal.

This is not to minimize the need for reforms regarding the appointment processes for non-adjudicative, executive-branch bodies – the regulatory agencies, Crown corporations and the like – whose functions are regulatory, administrative or management in nature. We look forward to appointment process reforms for those bodies, consistent with the rule of law, which will optimize their competence and independence, minimize their partisanship, and enhance the extent to which these bodies reflect the populations they serve.

However, as recognized in the CBA’s response, the appointment and re-appointment processes for adjudicative tribunals present a special challenge. The powers of adjudication entrusted to the chairs and members of these tribunals should manifestly respect the rule of law and rest on clear and strong principles of adjudicative independence and impartiality.

The processes for the appointment and re-appointment of adjudicative tribunal chairs and members in Canada’s administrative justice systems, and not least in the federal system, are incompatible with the rule-of-law’s adjudicative principles to the extent that they:

• are perceived to be partisan processes;
• appoint chairs and/or members at pleasure;
• expose chairs and members to arbitrary, mid-term dismissals without cause; or
• render reappointment decisions that are not transparent or merit-based and are often perceived to be arbitrary.

These deficiencies all strike at the heart of the entitlement of Canadians to an adjudication of their rights and obligations by decision makers who are, and are seen to be, independent and impartial. Their nature and justice implications were authoritatively documented in La justice administrative : entre indépendance et responsabilité, the report of a recent empirical study of Québec’s adjudicative tribunals which will serve as an invaluable reference in your planned reform of GIC appointments.

Your commitment to the development of a “new approach” to GIC appointments in the federal system generally presents an opportunity for a careful review of what is needed from a rule of law perspective for adjudicative tribunals in particular, and offers the prospect of fundamental reforms in what has been a long-neglected component of our justice system.

It is a prospect we embrace and an opportunity which we are respectfully hopeful you might seize.

Yours truly,

Professor Lorne Sossin, Dean, Osgoode Hall Law School, York University; Professor Emeritus David Mullan (Queen’s University); Professor Laverne Jacobs, University of Windsor, Faculty of Law; Professor France Houle, Associate Dean (études de 1er cycle), Faculté de droit, Université de Montréal; Professor Gerald Heckman, University of Manitoba, Faculty of Law; Dr. Ron Ellis, Q.C.

Cc: The Honorable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada