This thesis offers a reading of the legal philosophy of the mid-twentieth century legal scholar, Lon L. Fuller. By illuminating how Fuller’s vision of law gravitates constantly to the relationship between the form of law and the status of the legal subject as an agent, this reading provides a basis for revisiting the issues in dispute in his famous exchanges with the legal positivist philosopher, H.L.A. Hart. The thesis as a whole seeks to meet two main objectives. First, I seek to demonstrate how Fuller’s persistent concern for the way that the form of law instantiates respect for the legal subject lends his legal philosophy a coherence that has been insufficiently appreciated to this point. Second, I seek to elaborate the claim that once we appreciate the centrality of the relationship between legal form and agency to Fuller’s thought, we come to understand why he insisted that law can and should be distinguished from other modes of ordering, and why it must also be regarded as distinctively moral.

This thesis examines three interrelated issues. The first concerns a question about the status of administrative law, namely whether administrative officials have authority to determine what the law requires under a democratic constitution. Historically, this question has not been adequately addressed in public law scholarship because neither Diceyan constitutional theory nor common law doctrine has been traditionally receptive to administrative law. In this thesis, I argue that there are good reasons for people to respect the legal authority of administrative officials and their decisions. Those reasons are rooted in respect for the democratic process by which administrative officials are empowered, and respect for the various forms of expertise that administrative officials possess. The second issue concerns the doctrinal aspect of administrative law. If there are good reasons for believing that administrative officials have legitimate legal authority, then those same reasons suggest that judges should respect administrative legal decisions. In order to better understand how the relevant reasons for respecting administrative decisions alter the practice of judicial review, I compare and contrast the traditional doctrine of jurisdictional review with the doctrine of curial deference. This comparison shows that the doctrine of curial deference provides a superior account of the legitimate legal authority of administrative officials, and that this account makes a practical difference for the practice of judicial review. The third issue concerns whether the doctrine of curial deference can be reconciled with the rule of law. Assuming that there are good reasons for respecting administrative decisions, how can judges both respect an administrative decision while ensuring that it is consistent with the rule of law? I argue that judges can both respect administrative decisions and maintain the rule of law by requiring administrative officials to justify their decisions adequately in light of public reasons which are both patent and latent in existing legal materials.

In an era of highly advertised blockbuster medicines, newly approved pharmaceuticals can pose a hazard to the public if not properly monitored following their approval. Drugs are only given to a limited number of healthy individuals during clinical trials, leaving significant questions as to the risks for the population at large. There are limited opportunities for assessment following the product’s introduction onto the market and adverse effects may not be detected. This paper argues that hurdles in tracking long-term safety and effectiveness can be partially remedied through the aggregation and analysis of information collected through pharmaceutical data mining. Pharmaceutical data mining is a process whereby private organizations compile extensive information on patients’ prescription histories, including: the drug prescribed, recommended dosage, and the patient’s subsequent history with the medication. The Canadian government should collect this information and analyze its meaning to better ensure the long-term safety and effectiveness of drugs.

This paper argues that given the proliferation of electronic health records (EHRs) in the health care system, legislative reform must occur to address the inadequacies of Ontario’s current health privacy legislation in accommodating EHRs. A coherent framework for legislation is necessary to capture the important role that privacy plays in public perception when it comes to legislating and managing EHRs in Ontario and, in turn, serve as a tool for legislators to understand the definitions and values of privacy associated with EHRs and the privacy problems worthy of protection in an electronic health environment. The failure to properly address these problems may lead to privacy losses and loss of public confidence in EHR systems. In applying this framework to three legislative options, it is evident that Ontario should amend the Personal Health Information Protection Act, 2004 to better contemplate the privacy protections necessary in an electronic health environment.

This paper argues that given the proliferation of electronic health records (EHRs) in the health care system, legislative reform must occur to address the inadequacies of Ontario’s current health privacy legislation in accommodating EHRs. A coherent framework for legislation is necessary to capture the important role that privacy plays in public perception when it comes to legislating and managing EHRs in Ontario and, in turn, serve as a tool for legislators to understand the definitions and values of privacy associated with EHRs and the privacy problems worthy of protection in an electronic health environment. The failure to properly address these problems may lead to privacy losses and loss of public confidence in EHR systems. In applying this framework to three legislative options, it is evident that Ontario should amend the Personal Health Information Protection Act, 2004 to better contemplate the privacy protections necessary in an electronic health environment.

In an era of highly advertised blockbuster medicines, newly approved pharmaceuticals can pose a hazard to the public if not properly monitored following their approval. Drugs are only given to a limited number of healthy individuals during clinical trials, leaving significant questions as to the risks for the population at large. There are limited opportunities for assessment following the product’s introduction onto the market and adverse effects may not be detected. This paper argues that hurdles in tracking long-term safety and effectiveness can be partially remedied through the aggregation and analysis of information collected through pharmaceutical data mining. Pharmaceutical data mining is a process whereby private organizations compile extensive information on patients’ prescription histories, including: the drug prescribed, recommended dosage, and the patient’s subsequent history with the medication. The Canadian government should collect this information and analyze its meaning to better ensure the long-term safety and effectiveness of drugs.

This thesis examines three interrelated issues. The first concerns a question about the status of administrative law, namely whether administrative officials have authority to determine what the law requires under a democratic constitution. Historically, this question has not been adequately addressed in public law scholarship because neither Diceyan constitutional theory nor common law doctrine has been traditionally receptive to administrative law. In this thesis, I argue that there are good reasons for people to respect the legal authority of administrative officials and their decisions. Those reasons are rooted in respect for the democratic process by which administrative officials are empowered, and respect for the various forms of expertise that administrative officials possess. The second issue concerns the doctrinal aspect of administrative law. If there are good reasons for believing that administrative officials have legitimate legal authority, then those same reasons suggest that judges should respect administrative legal decisions. In order to better understand how the relevant reasons for respecting administrative decisions alter the practice of judicial review, I compare and contrast the traditional doctrine of jurisdictional review with the doctrine of curial deference. This comparison shows that the doctrine of curial deference provides a superior account of the legitimate legal authority of administrative officials, and that this account makes a practical difference for the practice of judicial review. The third issue concerns whether the doctrine of curial deference can be reconciled with the rule of law. Assuming that there are good reasons for respecting administrative decisions, how can judges both respect an administrative decision while ensuring that it is consistent with the rule of law? I argue that judges can both respect administrative decisions and maintain the rule of law by requiring administrative officials to justify their decisions adequately in light of public reasons which are both patent and latent in existing legal materials.

This thesis considers the substance of a labour arbitrator’s expertise. The author argues that the question is timely in that its answer provides a novel way to approach the position the Supreme Court of Canada has taken with respect to an arbitrator’s rightful jurisdiction, most notably in the over-decade old decision of Weber v. Ontario Hydro, a decision which continues to act as a thorn in arbitrators’ sides.

A large body of jurisprudence has developed in Canada criminalizing the conduct of HIV positive persons who transmit or expose others to the HIV infection in an equivocal attempt to be seen to be doing something about individuals who are perceived to be driving the HIV epidemic. Convictions have been obtained for charges ranging from aggravated assault to, most recently, murder. The Cuerrier judgement, a landmark decision of the Supreme Court of Canada, left a number of issues unresolved. Given the ambiguities in the decision, this Thesis will address the unfortunate consequences resulting from the Cuerrier’s decision. The conclusion I will attempt to reach is that criminalization is an inadequate strategy to prevent further HIV infection, its increased use in practice is misguided, and counterproductive to public health goals, thus alternatives to the routine criminalization of HIV transmission that may enhance the goals of public health should be considered.

In contemporary legal writing and discourse, Lord Atkin’s neighbour principle is unloved. The now dominant view is that the neighbour principle performs no practical function since it is a mere descriptive label of the very different factual circumstances in which a duty to take reasonable care exists. It is the central contention of this paper that the neighbour principle is – in fact – invaluable as aid for the principled development of the tort of negligence. As this paper will show, the neighbour principle furnishes a common perspective that renders possible uniform determinations of analogical similarity and difference between novel categories of relations and established forms of negligent liability. The principle thus works in tandem with analogical reasoning to ensure objectivity in the delineation of the proper ambit of negligence law’s protection. Accordingly, the principle is an essential in ensuring a principled law of negligence whereby like cases are treated alike.