Proportionality was introduced into Ontario’s Rules of Civil Procedure in 2008. A plain reading of Rules 1.04(1) and (1.1) is the ‘traditional’ interpretation of proportionality: that proportionality is merely the means of furthering efficiency and economy in individual cases, with the aim of better securing substantive justice on the merits in those cases. The relative measure is what is at stake in the individual case. This article suggests a counter-cultural interpretation: that proportionality is equal in importance to substantive justice and that, in certain circumstances, substantive justice in individual cases must give way to proportionality, in order to secure the just distribution of resources for all cases. The relative measure is what is at stake for the civil justice system as a whole, with justice defined more collectively. This article posits that proportionality can effect a change in our legal culture, but only if we accept a countercultural definition of that word.

This article provides a comprehensive historical account of the doctrine of recent complaint, an evidence law principle which expressly disadvantages sexual assault survivors if they do not disclose their assault at the first reasonable opportunity. Parliament did not abrogate this doctrine until 1983. Given that most sexual assault complainants are women, the gendered foundations of this doctrine (and its survival until the late 20th century) must be interrogated. Others have explored the doctrine’s abrogation, but this article’s original contributions include an analysis of primary sources that are largely unexamined by the literature (e.g., rape crisis centre reports, Parliamentary debates). This article shows that, despite considerable attempts from both Parliament and the SCC, many stereotypes and rape myths underpinning the doctrine of recent complaint are alive and well in Canadian courts. Most importantly, by providing a detailed overview of Parliamentary records leading up to 1983, this work highlights predictive concerns that were disregarded and have now come to fruition.

Appellate courts occupy a unique position. They are the final instance for most litigants guiding lower courts but they are also a gateway to the Supreme Court. This dual role calls for special scrutiny and analysis. Yet, data and analysis of appeal courts remains scarce especially compared to apex courts. This article fills part of this gap relating to the Ontario Court of Appeal. It introduces a new dataset of its decisions between 2008-2021 consisting of both metadata, such as outcomes per decision, and the decision full text, which can be mined through natural language processing techniques. Aside from presenting the dataset, the paper uses novel data science approaches to trace the practice of the Court over time, to dissect the decision patterns of its judges, and to assess how the pandemic shock impacted the Court. It finds, amongst others, that the Court has been stable in its decision patterns, but that decisions have grown longer; it also shows that some judges render harsher decisions than others, and it illustrates how the pandemic created instant precedent. We hope that the new dataset and corpus will spur further research on the Ontario Court of Appeal.

What are the global canons of constitutional equality analysis? Many scholars would say that there are none. National courts cannot seem to agree on whether the guarantee is formal or substantive, intersectional or discrete, open-ended or strictly textual. This Article takes a different tact. There are two budding strands of equality law reasoning: the categorical canons and the difference canons. The former prohibit pernicious distinctions in the law, while the latter affirm individual difference. The difference canons are the more cogent of the two. Categorical equality reasoning leads to underinclusive protection that is discordant with the actual experience of discrimination. Meanwhile, difference equality reasoning quashes budding social inequities before they fester into pernicious “isms.” Categorical courts thus ought to take a page from the difference canons.

In December 2021, the Ontario government passed into law Bill 88, the Working for Workers Act, 2022. Among other developments, the Working for Workers Act, 2022 introduced the Digital Platform Workers’ Rights Act, 2022 (the “Act”), establishing a number of rights for platform workers. This Article is a brief, non-exhaustive evaluation of the provisions of the Act, with particular emphasis on how it impacts the salient issues associated with the regulation of platform work. This Article concludes that, notwithstanding its limitations, the Act is a major step in the right direction towards effective regulation of the working conditions for platform workers.

Surrogacy arrangements in Canada are estimated to have increased by 400% in the last decade, in part due to the rising rates of infertility. Costs for these arrangements can be upwards of $100,000. Individuals and couples using a surrogate to expand their family have sought relief under the medical expense tax credit pursuant to section 118.2(2) or the adoption tax credit pursuant to section 118.01(2) of the Income Tax Act. The deductibility of these payments is a relatively new issue in Canadian tax law; however Canadian courts have consistently denied the deduction of surrogacy payments. The Tax Court of Canada has heard five cases on the matter and has denied the deduction in all four that have precedential value. Surrogates do not meet the definition of “patient” to qualify for the medical expense tax credit and are outside the scope of the adoption tax credit. This article canvases legal and policy arguments in favour of and against allowing surrogacy payments to be tax deductible. It proposes the creation of a new surrogacy expense tax credit, similar in design to the existing adoption tax credit.

Within the current legislative landscape in Ontario, survivors of sexual harassment are treated differently than survivors of sexual assault and sexual misconduct with respect to when they can advance a legal claim against their perpetrators. Under sections 16(1)(h) and 16(1)(h.1) of the Ontario Limitations Act, survivors of sexual assault and misconduct are able to file a civil claim whenever they choose to do so. Under s 34(1) of the Ontario Human Rights Code, survivors of sexual harassment must file a human rights complaint within one year of the experienced harassment. This paper argues that s 34(1) should not apply to complaints based on sexual harassment. The author provides four reasons to substantiate this argument: (1) this provision fails to align with contemporary understandings of sexual harassment; (2) it is arbitrary to apply drastically different timelines to survivors depending on the type of sexual violence they have experienced; (3) two important objectives of limitation periods will not be seriously threatened by the suggested amendment to the Human Rights Code; and (4) section 34(1) favours the interests of the harassers over those of the survivor, the public, Bill 132 and the Human Rights Code.

In Tsilhqot'in Nation v British Columbia, the Supreme Court of Canada replaced the test for the justification of Aboriginal rights infringements with a framework that is nearly indistinguishable from the Oakes test. The goal of this paper is to show that this development in the law, and thus the current justification framework, is undesirable and erroneous. This paper submits four reasons to arrive at this conclusion. First, the justification test proposed in Tsilhqot'in mirrors the test rrequired to prove an infringement of Aboriginal rights, whose burden of proof falls on the Indigenous party, and hence shifts the entire onus of proving justification from the Crown to the Indigenous party. Second, the conflation of the Oakes test with the justification framework makes justification effectively impossible, which may cause reluctance amongst courts to recognize Aboriginal rights. Third, Aboriginal rights are fundamentally different from Charter rights and should not be subjected to a test designed for the Charter. Fourth, the incorporation of the Oakes test into the justification framework runs contrary to established principles of constitutional interpretation. These four reasons merit abandoning the framework proposed in Tsilhqot'in. Otherwise, this area of the law will be riddled with doctrinal flaws and Indigenous interests will suffer.

Canada’s innocence compensation framework is inadequate and unjust. To secure compensation for the myriad harms caused to them by miscarriages of justice, the wrongfully convicted in Canada can either rely on civil suits adjudicated on standards deferential to state actors and with remote prospects of recovery, or must subject themselves to entirely discretionary assessments of ex gratia payments by the executive. In this paper, I provide an overview of why this status quo is undesirable. I then examine other jurisdictions’ innovative approaches to innocence compensation, grounded in a distinction between ‘statutory schedule’ and ‘adjudicated rights’ frameworks. I conclude by setting out the advantages and disadvantages of each approach with a view to informing Canadian lawmakers should they be interested in reform.