While Canadian immigration law has generally evolved incrementally, the law and policy around skilled immigrant selection has undergone generational shifts. The 1960s and 1970s saw the implementation of a human capital model, whereby immigrants were selected based on long-term adaptability to the labour market. This shift was accompanied by a broad national discussion on immigration. In the past decade, Canada has seen another generational shift away from the human capital model towards an employment-based model, where immigrants are chosen based on immediate employment prospects. The consequences of this shift are profound for our economy and society, but this change has not been accompanied by meaningful consultation or debate. Even more problematic has been the use of various lawmaking tools to limit debate and avoid judicial scrutiny. In contrasting recent changes and the accompanying lawmaking processes with the previous changes, this paper argues for a more comprehensive national conversation on immigration.

The Tax Court of Canada and the Federal Court of Appeal are regularly asked by taxpayers and the Canada Revenue Agency to determine whether a worker is an employee or an independent contractor. The distinction has significant tax consequences. The analysis and various legal tests used by the courts to determine the characterization of a worker have been through significant transformations over the last 15 years. The analysis remained objective for several years. However, in 2002, courts began to consider the common intent held between the taxpayer and the worker when characterizing that worker’s status as either an employee or an independent contractor. Since its introduction, the courts have placed various levels of importance on this common intent in the characterization process. This paper seeks to quantify the varied emphasis placed by the courts on the intent held between a taxpayer and its worker.

The Tax Court of Canada and the Federal Court of Appeal are regularly asked by taxpayers and the Canada Revenue Agency to determine whether a worker is an employee or an independent contractor. The distinction has significant tax consequences. The analysis and various legal tests used by the courts to determine the characterization of a worker have been through significant transformations over the last 15 years. The analysis remained objective for several years. However, in 2002, courts began to consider the common intent held between the taxpayer and the worker when characterizing that worker’s status as either an employee or an independent contractor. Since its introduction, the courts have placed various levels of importance on this common intent in the characterization process. This paper seeks to quantify the varied emphasis placed by the courts on the intent held between a taxpayer and its worker.

Limitations on the customizability of property rights (the numerus clausus principle) are a puzzling feature of the common law conception of property. An economic rationale, built upon 1) the pivotal role that rules of exclusion play in fostering user innovation, and 2) the role that psychological ownership plays in preventing recontracting around governance rules, is offered to explain the modern persistence of the doctrine. Application of the numerus clausus principle limits the proliferation of governance rules in the economy (governance), replacing them with rules of exclusion (exclusion). Exclusion unifies rights of use and possession in assets, while governance separates, to a greater or lesser degree, possession from use rights. Full user, sale and the policy against restraints on alienation are the paradigmatic examples of exclusion; while governance is exemplified by servitudes and contractually-burdened assets. Exclusion plays a critical role in user innovation because it allows the possessors of assets to unilaterally seek out new uses of those assets. Whenever the law replaces governance with exclusion, user innovation is more likely to occur because the possessors of assets can apply their unique, rival and nontransferable human capital inputs to tangible assets, generating outputs (the new uses) that move resources to their higher-value uses. This is how all innovation, both high-tech and low-tech, occurs. In addition to negatively impacting user innovation, governance hinders recontracting because both possession and legal entitlements (rights of use in an asset) give rise to feelings of psychological ownership, and individuals will not recontract over uses that they feel they already ‘own’. The user innovation theory’s focus on search, innovation and human capital explains why the numerus clausus principle remains most robust in the areas of personal and intellectual property (where users generate a significant amount of innovation), and why it has been somewhat attenuated in the area of real property (where we restrict search in order to facilitate coordination of land uses). It also explains why the law enforces the principle even when the cost of providing notice of governance rules is low.

This thesis examines judical mediation from a constitutional and jurisprudential perspective. More specifically, it asks whether Ch III of the Commonwealth Constitution limits the capacity of Australian judges to engage in judicial mediation and, if so, how this will afffect the development of judicial mediation in practice.

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.