This article offers an analysis of how environmental tribunals contribute to important advances in environmental laws. The article compares the legislative and adjudicative administrative processes and examines decisions from environmental tribunals and courts in Canada. The author also reviews developments in environmental protection legislation since the 1970s. Consideration is also given to whether environmental laws are better framed on a model of comprehensive rationality or an incrementalist approach. The article concludes such tribunals make significant contributions to environmental laws by articulating emerging principles of environmental law. In doing so, the author examines the legislative underpinning and characteristics of tribunals which enable them to articulate such principles, namely that the statute express as its purpose protection of the environment. Also, the tribunal should have expertise in environmental matters, permit participation by third parties in the proceedings, be independent and be accountable through providing written reasons and the mechanism of judicial review.

This paper explores the relative benefits of command and control, reflexive law and social licensing in ensuring oil industry compliance with environmentally sustainable practices and obligations. Recognizing why oil sands and their development are significant, the background and development are reviewed first, and then the focus is shifted to look at its economics including the benefits, uncertainties and environmental costs of development. This paper examines how lawmakers in Canada have failed to meet their respective obligation. Drawing on environmental provisions, case law and legal scholars’ articles, books and reports, this paper examines the very problematic issue of oil sands regulation. It proposes to provide an in depth analysis of each regulatory forms and their application to the oil sands. It concludes that in order to solve the oil sands regulation challenges, a collaborative stringent enforcement of regulation from both federal and provincial governments, oil industry and public Pressure is required.

There is a problem with determining rights to research data created or compiled in science research labs at Canadian universities. Unlike many copyright and patent issues that arise on university campuses, the law is unsettled with respect to rights to research data. This is primarily due to two factors: the uncertain legal status as to facts, which would include research data, and the differences in norms and academic traditions that exist. Some universities have implemented polices in an attempt to resolve the issue. However, the policy response has been confusing and inadequate. This thesis considers a new theoretical approach to the problem. The Coase Theorem is analyzed to determine what lessons can be applied to a university environment. The conclusion is that from the three main parties who would normally have claims to rights in research data – a professor, graduate student(s), or the university itself, the default rule should be to assign the initial ownership rights to the professor with a right of use to the graduate student(s), for research and publication required as part of her degree/program. The acquisition of additional rights would be the subject of negotiations between the parties.

The U.S. is facing a serious decline in its water supply and is likely to turn to Canada as its next major source of water. Under NAFTA, Canada may become legally obligated to allow American companies to begin selling Canadian water. If one province trades its water, Canada can do little to stop water exports nationally. Consequently, it is crucial that Canada takes steps now to legally ensure its water is protected. This paper portrays the Canada / U.S. bulk water export issue as a conflict, and proposes strategies that Canada could take to protect its freshwater. It applies a game theory perspective to the conflict, and illustrates the moves that each country might make to “win” the game and secure Canada’s water supply. The purpose of this application is to better predict future strategies and their consequences when two political allies legally battle over the world’s most precious natural resource.

This paper justifies and delineates a common law right to privacy. The first part of the paper reviews the current state of the law of privacy. The second part defines privacy by distinguishing privacy rights from those otherwise protected by the common law. The paper argues that the appropriate organizing principle behind the legal concept of privacy is the idea of control over one’s interactions with others. The third part argues that protection of privacy at common law is justified both pursuant to the demands of the Charter and with a theoretical understanding of private law based on a Kantian notion of Right. The final part argues that such an analysis determines the substantive nature of the protection that should be afforded at common law, namely that privacy should be protected from both intentional and negligent interference.

Parliamentary privilege encompasses certain special rights and immunities deemed necessary to protect legislatures and members from undue interference so that they can effectively carry out their functions of inquiring, debating and legislating. The doctrine has engendered conflicts that have never been wholly resolved between courts and legislatures, and between individual rights and parliamentary privileges. The advent of modern human rights and emphasis on democratic values such as accountability and transparency has brought a new urgency to this problem. The current passive and defensive approach of Canadian legislatures is unsustainable, as is the approach taken by the SCC in recent jurisprudence. The paper argues against expanding the scope of judicial review of privilege claims as a solution, and in favour of open modernization processes led by parliamentarians, and involving public participation. Further, the paper advocates for the application of a “relational approach” versus the traditional “contest approach” to parliamentary privilege.

This paper explores the theory of intersectionality and its viability for the analysis of human rights under the new legal process and institutional framework in Ontario. First, I examine the debate between essentialism and intersectionality and conclude that intersectionality is a more comprehensive and inclusive approach to anti-discrimination laws. Second, I examine Canadian Human Rights Code cases and Charter equality cases involving intersectional claims. These cases reveal three inadequate approaches to analyzing multiple grounds of discrimination and two positive developments in the intersectional analysis of human rights claims. After assessing the general congruence of the new institutional framework with the principles of administrative justice, I identify three recent changes to Ontario’s system that hinder the development of an intersectional analytical framework and I offer suggestions for improvement. I conclude that an intersectional approach to human rights claims is possible but is currently frustrated by the new institutional framework in Ontario.

This thesis applies arguments for greater diversity, and more specifically, racial diversity, on the judiciary to administrative tribunals with an adjudicative function. I draw from both formal arguments, such as institutional legitimacy, and substantive arguments, such as the different perspectives that diversity would provide, to propose an integrative conception of diversity. By relying upon concepts such as structural impartiality, I argue that an integrative conception of diversity more fully reveals the transformative potential of diversity in legal decision-making. This integrative conception is particularly well-suited to the administrative context because it demonstrates how diversity will enhance the values of participation and justification, which are instrumental to the principle of fairness. Through interviews with adjudicators and legal clinic lawyers, I offer a preliminary view of the potential impact that diverse administrative adjudicators could have in practice. Finally, this thesis offers recommendations on how this potential could be further realized.

This thesis surveys the last three decades of Canadian jurisprudence on the standards of review applicable to judicial review of substantive administrative decisions, with a focus on the guidance that is or is not forthcoming on the significance and practical application of reasonableness (deferential) review. My argument is that the doctrinal developments I survey trace out a burgeoning understanding of the purposes of substantive review which is at the same time a particular understanding of administrative state legitimacy. I refer to an account of legitimacy, or the legitimacy proper to law, that conceives of law as an aspirational project aimed at fostering relationships of reciprocity as between legal subjects and legal authorities. On this account (advanced in the work of David Dyzenhaus, and others), common law administrative law principles of procedural fairness and substantive reasonableness function as co-ordinate mechanisms for grounding administrative decision-making in a “culture of justification”.

The Supreme Court of Canada has attempted several times to reform the way it approaches the issue of curial deference in judicial review. Each attempt however, has been in vain. This paper argues that the cause of this failure of each reform of the deference test proposed by the Supreme Court is not necessarily one of content, but instead one of structure. Each of the reforms retained a ‘multifactorial approach’ to the deference test, involving the weighing of several factors leading to a prescribed level of deference. Through critical analysis of the approach, and the postulation of an alternative, this paper argues that the multifactorial approach is what thwarts the Court’s intentions, and that it needs to abandon it should it wish to achieve clarity and coherence within judicial review.