scispace - formally typeset
Search or ask a question

Showing papers in "University of Toronto Law Journal in 2002"





Journal ArticleDOI
TL;DR: The authors suggests that an appropriate resolution to residential school claims cannot be found via the Alternative Dispute Resolution (ADR) mechanisms currently being suggested or utilized, as applied to the residential school situation.
Abstract: The recent flood of civil litigation suits filed against the federal government and four major Christian churches by former students of Canadian Native residential schools threatens to overwhelm the court system and bankrupt several of the Church organizations involved. Litigation has proved problematic as a mechanism through which to respond to the abuse and other harms experienced in, and by, the residential school system for all the parties involved. Dissatisfaction with the court process has led those involved to look to the mechanisms collected under the umbrella term ‘alternative dispute resolution’ (ADR) in order to find an alternative to litigation. This article suggests that an appropriate resolution to residential school claims cannot be found via the ADR mechanisms currently being suggested or utilized. These ADR mechanisms do not challenge those assumptions underlying the current tort litigation system that are most problematic as applied to the residential school situation. Specifically, they...

71 citations


Journal ArticleDOI
TL;DR: In this paper, the scope of the federal government's jurisdiction over social policy is examined, and it is argued that the Constitution draws a sharp distinction between jurisdiction over the financing of contributory social insurance and social services, and jurisdiction over their design and delivery.
Abstract: Who speaks for Canada? For the past fifty years, during both the expansion and the retraction of the Canadian welfare state, the politics of social policy has revolved around this single question. In this article, I step back from the politics of social policy to reflect on the constitutional framework within which that politics occurs. My focus is the scope of the federal government’s jurisdiction over social policy. A distinctive feature of Canadian social policy since World War II has been the central role played by the federal government in the development of the Canadian welfare state, now commonly referred to as the social union. The federal role has been all the more remarkable in light of the constitutional limits on federal jurisdiction over social policy. Although jurisdiction over social policy has long been and continues to be disputed by both levels of government, I argue that underlying the politics of social policy lies a set of legal assumptions. These assumptions hold that the Constitution draws a sharp distinction between jurisdiction over the financing of contributory social insurance and social services, and jurisdiction over their design and delivery. Short of explicit constitutional amendment (as occurred in the case of unemployment insurance and pensions), federal jurisdiction is thought to be confined to the former realm, largely exercised through the use of the so-called federal spending power, whereas provincial jurisdiction encompasses both the former and the latter areas. In this article, I question this assumption, and argue that constitutional doctrine provides for federal jurisdiction over subject-matters where there is the risk of races to the bottom.

41 citations


Journal ArticleDOI
TL;DR: The distinction between employees and independent contractors has been described as the "cornerstone" of labour and employment laws, but proves difficult to apply as discussed by the authors, and the question of who should be considered an "employee" in the context of protective labour and labour laws is addressed.
Abstract: The distinction between employees and independent contractors has been described as the "cornerstone" of labour and employment laws, but proves difficult to apply. This article is concerned with the question of who should be considered an "employee" in the context of protective labour and employment laws, i.e. what kinds of workers should be covered by such laws. The basic approach is purposive. It is argued that protective labour and employment laws share a general purpose, which can be used to articulate a general understanding of who should be considered an employee. The employment relationship can be likened to an integration of three axes: organizational, social/psychological and economic. Organizationally, employees are characterized by being subject to a structure of governance with democratic deficits. Socially/ psychologically, the employment relationship is characterized by the dependency of employees on the relationship for the fulfillment of certain social and psychological needs. And economically, employees are characterized by their reliance on the employment relationship, in the sense that they are unable to spread their risks. These Three Axes point to the vulnerabilities that put employees in need of protection and explain their inclusion within the ambit of protective regulations. The article then explores the practical implications of the thesis. At the legislative level, a typology of four categories (employees, dependent contractors, independent employees and independent contractors) is suggested as a tool to refine the scope of protective regulations according to the particular vulnerabilities of different workers. At the interpretive level, the Three Axes are offered as an overarching test, and existing lists of indicia are examined in their light. This general test may need to be adjusted in the context of specific regulations, depending on their more particular goals.

24 citations