Search
  • avantgarderyerson

Avant Garde | APRIL 2022 | Volume 2, Issue 4

DOWNLOAD THE FULL ISSUE HERE




Copy of Avant Garde, April 2022
.pdf
Download PDF • 21.29MB



AVANT GARDE
LINCOLN ALEXANDER SCHOOL OF LAW

IN THIS ISSUE:


1 | The Blockades, Police Budgets and Individual Freedom Dilemma

2 | Increasing Efficiency at the Landlord Tenant Board - A Losing Battle?

3 | Home Buyers and Provincial Legislation

4 | Review Of Clubs At Lincoln Law

5 | For Iftar: Lincoln Alexander’s Ramadan Food Drive

6 | Old Etiquette and New Tech Meet in Virtual Courtrooms

7 | A Tenuous Articling Program & The LSO Mandatory Minimum Wage Debate

8 | Leading Decision Affirms Right to Safe Drinking Water in First Nations Communities

9 | Avatar Lawyers - A New Way to Practice?

10 | Technological advances in immigration and refugee decisions

11 | 40 Years Later: Reflecting on the Impact of the Canadian Charter of Rights and Freedoms

12 | The ‘Kucherov Rule’: How to Circumvent the National Hockey League’s Salary Cap

13 | Food Inventions




The Blockades, Police Budgets and Individual Freedom Dilemma

An overview of the proposed “Keeping Ontario Open for Business Act”


BY MIRA SETIA, 2L, Editor-In-Chief


Following the six-day Ambassador Bridge (“Bridge”) blockade in February 2022, Bill 100, or the “Keeping Ontario Open for Business Act” (“Act”), was introduced by the Ontario government. The anti-mandate protests in Ottawa early this year caused major disturbances in the city. They reached Toronto, which increased Toronto Police Service’s presence in the downtown core; and finally made their way onto Windsor’s Ambassador Bridge. The Bridge, at the Windsor-Detroit border, is one of the busiest international crossings in North America and is one of the largest hubs for all Canada-U.S. trade. Approximately $17 million in goods crosses over the Bridge hourly, which makes up about a quarter of all Canada-U.S. trade. As such, the six-day blockade at the Bridge in February cost the Canadian economy around $3 billion (possibly more). The larger impact of this loss is harder to predict, because jobs and the value of those goods were also affected.



On Friday February 11th, 2022, Premier Doug Ford declared a province-wide State of Emergency in response to the protests and blockades; by the afternoon, an Ontario Superior Court judge granted an injunction barring protesters from blocking traffic on the Bridge. The goal was to end the “siege” and allow police to fine/imprison protesters that do not allow the transport of goods across international border crossings, as well as the 400-series highways, airports, bridges, ports and railways across the province. Police patrolled the Bridge that entire weekend and moved demonstrators who were blocking road access out by Sunday Night. Officers from Windsor, London, Ont., Ontario Police Service (OPP) and the RCMP remained at the former protest site the next day. The protests in Ottawa, Toronto, and Windsor increased police presence in all of these cities. The government was right to allow people to exercise their freedom of assembly and let people support the protests through freedom of opinion. But damage to the economy is where the State drew the line. The impact of massive protests like these is not cheap. The City of Ottawa incurred a $36 million policing bill to clear out the Country’s capital and it cost the City of Windsor $5.7 million to clear up the Bridge blockade (mainly a policing bill).


As a result, Bill 100 was proposed. This proposed legislation would make it illegal to obstruct certain protected transportation infrastructure (i.e international borders, airports and things relating to international trade) if the blockage disrupts economic activity or interferes with the safety, health, or well-being of members of the public.


If enacted, this Act will give law enforcement tools to respond to blockades without the province having to invoke an emergency. It includes an approximate $96 million policing investment to:

  • Establish a permanent Emergency Response Team for the OPP;

  • Enhance training at the Ontario Police College with a focus on effective public order policing; and

  • Purchase heavy equipment such as tow trucks to remove blockades.

Moreover, the Act allows police officers to:

  • Suspend drivers' licenses and vehicle permits;

  • Seize license plates of those involved in an illegal blockade; and

  • Remove and store other objects contributing to a blockade.


Solicitor General Sylvia Jones says the Act is narrow in scope and will not impede Ontarians' ability to peacefully protest; and Attorney General Doug Downey says that this action “will provide police and prosecutors with new tools to keep people safe and protect the vital economic lifelines that drive the prosperity of our communities.”


The primary goal here is to keep borders clear and keep trade flowing for the economy. Although the scope is narrow, increasing police budgets and broadening police powers may have potential trickle-down consequences to individual freedoms. This is the dilemma. Although we do not want to increase policing budgets, when those funds could be invested in mental health and social services (i.e. the #DefundThePolice movement), we cannot allow more blockades like the one on Ambassador Bridge; because the economy, jobs and trade will suffer greatly. However, we cannot stop those blockades without training police officers on public order and giving them the tools to do so; which requires a budget increase. All of these require balancing individual freedoms.


Although it is too early to predict the legal consequences for some of the Bridge protestors, we can still anticipate that future protests will be met with more strict action from the State. Whether these strict actions, and the increased police budget, will have a trickle down effect on individual freedoms is something only time will tell. If the Act comes into force, it will be reviewed after one year. That review will answer all our concerns.

 

References

  1. https://news.ontario.ca/en/backgrounder/1001812/keeping-ontario-open-for-business-act

  2. https://toronto.ctvnews.ca/ontario-legislation-to-prevent-blockades-at-borders-still-too-broad-advocates-say-1.5832557

  3. https://www.ola.org/en/legislative-business/bills/parliament-42/session-2/bill-100



INCREASING EFFICIENCY AT THE LANDLORD TENANT BOARD - A LOSING BATTLE?

BY BRYN COPP & DENA PAPAIOANNOU , 2L


The COVID-19 pandemic is accelerating a massive shift for technological solutions in industries that are historically slow to modernize. While a shift toward technology-based solutions is typically indicative of greater efficiency in processes and solutions, this is not always true.


In March 2020, at the beginning of the pandemic, the Landlord and Tenant Board of Ontario (“LTB”) shut down for five months, creating a massive backlog of cases. The LTB announced their plan to make online hearings permanent in November 2020. In an attempt to combat the nearly two-year backlog that closing operations created, the Ontario government announced on April 1, 2022, that it will be allocating $19 million to the LTB. The money will go towards accelerating LTB decisions through increasing the amount of full-time and part-time mediators and improving IT platforms. The goal of the province’s recent funding announcement is to make dispute resolution more efficient and accessible.




The need for greater efficiency is a result of the enormous strain that many landlords and tenants are experiencing because of the backlog in LTB decisions. The strain that this closure has left on the Ontario system is illustrated by a couple in Oakville who are dealing with tenants who are refusing to leave the property six months following the home’s sale. The couple filed two applications with the LTB. The first application was in November 2021 to evict their tenant, and the second application was in December 2021 for the non-payment of rent. They did not hear back from the LTB until the end of March 2022 when they learned that their hearing was scheduled for the upcoming week. The situation that these homeowners are facing has intensified because in addition to dealing with an unruly tenant, the home's new buyers are threatening to sue. The main cause of this issue is that the LTB hearing wait time is roughly three to four months; but the government’s response to this issue is to throw money at increasing online access to the hearings. There is a disconnect.


On its surface, provincial funding may appear to be an effective solution. However, in practice, increasing funding does not address the root of the problem. The online hearing process that was introduced through the pandemic is described as confusing and stressful for those involved. A woman in London, Ontario, who recently had a hearing with the LTB, describes her experience as unfair and disconcerting. In February 2021, this woman received an eviction notice after the building her condo is in was unexpectedly being sold. She had lived in this condo for the past nine years and was frustrated by this sudden disruption. The issue was brought to the LTB. On the day of her hearing, the woman sat on the phone for over four hours waiting for the tribunal to hear her case. Once the hearing began, she was given the opportunity to have a brief meeting with a legal aid representative and then moved into an online room alone with her landlord. An adjudicator did not enter the call until later when she was told she had verbally agreed to move out and that the hearing was over. At no point was a mediator provided to assist with the discussions.


By spending money to make things more efficient, the LTB is losing sight of what matters - providing complainants with a fair and reasonable outcome.



 

References

  1. https://ottawacitizen.com/news/local-news/province-touts-plan-to-clear-landlord-tenant-board-backlog-but-critics-say-efficiency-is-trumping-justice

  2. https://www.cbc.ca/news/canada/toronto/landlord-tenant-dispute-mississauga-1.6388097

  3. https://toronto.ctvnews.ca/ontario-earmarks-19m-for-landlord-tenant-board-in-effort-to-reduce-long-standing-backlog-1.5844425

  4. https://www.cbc.ca/news/canada/london/it-s-not-justice-it-s-efficiency-critics-slam-online-landlord-tenant-hearings-1.6403710



HOME BUYERS AND PROVINCIAL LEGISLATION

BY BRYN COPP & DENA PAPAIOANNOU , 2L



For the first time, the average Ontario home has risen above $1,000,000. The high home prices in southern Ontario have residents panicking about whether or not there is any hope of purchasing a home in the future. As housing prices continue to soar, the answer seems bleak. In February 2022, the average price of a home in Ontario increased 26% from February 2021, at a price of $1,086,493. Furthermore, it is a 9% monthly increase from January 2022.


Despite the soaring prices, it seems that every time a house is put on the market in southern Ontario, a bidding war ensues. When multiple buyers are looking at a house and there is limited time to make an offer, it is difficult to have each potential buyer bring their own home inspector. What this means for buyers is that they must forgo home inspections for fear of losing out on their dream home. In Toronto, it is common practice for a seller to elect into pre-listing inspections. While this appears to be a solution, it is an optional process and the home inspector at this stage is accountable to the seller and to getting them the highest possible price for the home. Ultimately, buyers are left without any recourse if the inspector misses something. Without an inspection, a buyer is at an increased risk for encountering unforeseen expenses.




In an attempt to offset high housing prices, the government of British Columbia is implementing new measures that aim to put homebuyers first. On March 28, 2022, the government introduced the Property Law Amendment Act which aims to protect homebuyers by giving them time to back out of a sale agreement. This protection period gives homebuyers the opportunity to assess, finance and inspect their potential home before signing a sale agreement. While not affecting housing prices, it may give buyers a sense of security. Unfortunately on the other hand, the legislation increases sellers' risk by potentially dealing with buyers who will make offers and face no consequences. The B.C. Real Estate Association recommends that the government reconsider its position, as they believe that a pre-offer period is more beneficial. Whereas a cooling-off period allows buyers to put in offers and revoke their offer within the specified time, a pre-offer period would not disadvantage sellers while simultaneously allowing buyers more time to consider their purchase. While the proposed legislation does not go beyond introducing a pre-offer period, it is rumored that the government is looking to implement mandatory inspections and closed bidding.


We leave you to consider whether legislation similar to B.C.s Property Law Amendment Act and its cooling-off period would provide southern Ontario home buyers with protections against unforeseen expenses that have the potential to arise when they are forced to refrain from conducting home inspections.



 

References

  1. https://www.macleans.ca/economy/realestateeconomy/want-to-buy-a-house-dont-bother-checking-the-foundations/

  2. https://wowa.ca/ontario-housing-market

  3. https://globalnews.ca/news/8706999/home-inspections-buyer-protections/

  4. https://www.cbc.ca/news/canada/british-columbia/province-introduces-homebuyer-protection-1.6400691?fbclid=IwAR1-JVMDT_aQw-84crCKzNGPz3LCVArwQBO2Opq3utnjttYa7JurQVrUzGQ



REVIEW OF CLUBS AT LINCOLN LAW

BY IVY LOK, 2L


As the end of the Winter 2022 term comes to a close, we can finally say that our students of LASL have experienced law school in-person. Between the bustle of POD’s hallways and the smell of hot chocolate wafting from the student lounge, our cohorts have been busy making the most out of their face-to-face communications – particularly our student organizations. Many of our associations and clubs have been busy planning in-person events (with the caveat of current COVID restrictions). Many of us had to get creative as we navigate accommodating our online and offline members.


Our organizations last year were a bit limited by the intricacies of building a constitution and the lack of promised funding for their events. This year, however, our students have been imbued with a financial budget and the addition of a new cohort has brought in a number of new organizations.


As we reach the end of the term, let us look back at the events that our student groups have worked so hard to put together.




Access to Justice Interest Group

This organization took a creative route with exam preparations by organizing “A Bubly For Your Thoughts”, where students were able to provide advice in exchange for a can of Bubly. If you walk into the student lounge, you may catch our interested readers snapping a photo for their later reference.


Asia Pacific Law Students’ Association

APLSA’s biggest celebration was held during Lunar New Year, where the organization hosted a hybrid Gathertown event for their online attendees, and an in-person dinner for members to get to know one another.


Black Law Students' Association

BLSA’s monthly Get It Off Your Chest events allows members to vent online about their experiences, to offer each other support, and to commiserate with one another. Among the many panels that BLSA has hosted, we cannot forget to mention BLSA’s in-person celebration of Black History Month.


Environmental Law Club

If there is an opportunity for this club to set up shop at our LALSS events, you can expect to see them there! The ELC has been busy with organizing environmental law panels, clothing swaps, holiday campaigns, and joint initiatives with Danny’s Legacy Initiative.


Legal Entrepreneurs Club

We are beginning to see more and more clubs partner up with other organizations this year to host events together. This club not only hosted an online Halloween Kahoot, but also teamed up with the Law and Technology Society and LALSS to give out goodie bags to our students.


OutLaw

The dedicated executives of this organization meet weekly, and their events have definitely reflected their efforts. They organized an EDI Training Session, open to all students and mandatory for our LALSS Executives and EDI Council members, which was an amazing opportunity for attendees to learn to be more equitable and inclusive in their leadership.


Many of these organizations took the chance to, at the very least, organize a meet and greet with their executive team. We have had quite a number of our new clubs and associations, and it has added a layer of camaraderie and unity within LASL that gives all of us a welcome break from assignments, readings, and our upcoming exams. Some of these new additions include Danny’s Legacy Initiative, Family Law Students’ Society, and Lincoln Alexander Animal Justice Club, as well as Jewish Law Students’ Association Access & Disability Association, Mature Law Students’ Association, and Caribbean Law Students’ Association adding more equity-based groups within our school. I am sure that we all look forward to next year’s additions and creative events that will no doubt add to the spirit of Lincoln Alexander School of Law.


FOR IFTAR: LINCOLN ALEXANDER'S RAMADAN FOOD DRIVE

BY: SOUTH ASIAN STUDENTS' ASSOCIATION


From April 1 to May 1, Muslims around the world will be celebrating Ramadan. Ramadan is a holy month of worship, the study of the Quran, prayer, and fasting; and during this month, all healthy adults are expected to fast. Individuals fast for many reasons during Ramadan, such as renewing their faith, seeking forgiveness, and increasing self-discipline. However, while some people are able to break their fast during iftar -the evening meal with which Muslims end their daily Ramadan fast at sunset - there are individuals who don’t know where their next meal is coming from and are unable to break their fast alongside their fellow devotees.


For this reason, Lincoln Alexander’s South Asian Law Students’ Association (SALSA), Muslim Law Students’ Association (LAMLSA), Middle Eastern Law Students’ Association (MELSA), and Danny’s Legacy Initiative (DLI) have all teamed up to host a Ramadan Food Drive to help those in need of receiving a meal to end their fast. Our donations will be going to the Central Toronto Islamic Foundation, which will help us distribute meals to those who need them most. A box for your non-perishable food item donations has been set up in the Law Students Lounge. We will also be accepting gift cards and Interac e-transfers for donations. We understand the school year is coming to an end, if students or staff have items in their homes that they don’t think they will use, here’s a perfect way to make sure they don’t go to waste! We hope that those who are able can support this initiative.






Old Etiquette and New Tech Meet in Virtual Courtrooms

BY KATRINA GROGAN-KALNUK , 2L


Just like us, the courts have endured a lot of disruption and change throughout the pandemic. Months of delays and closures added to existing backlogs. Courts were pushed to integrate modern technology, bringing hearings that used to occur in-person to video and teleconferencing platforms. Conversations about whether remote proceedings increased or reduced access to justice were rampant in the legal community. Many speculated about the future of virtual court – was it just a temporary fix? Will we return to the status-quo in the post-pandemic world? Two years later, although we cannot say the pandemic is fully behind us, it seems as though virtual proceedings are here to stay.


In June 2020, Chief Justice Richard Wagner made history when he gave his opening remarks at The Supreme Court of Canada (“SCC”) in the Court’s first fully virtual hearing. Although the Justices have since returned to the courtroom, counsel and interveners continue to appear virtually at the SCC today. The Ontario Court of Appeal just resumed in-person hearings and panel motions on April 4, 2022. Throughout 2021 the Ontario Court of Justice (“OCJ”) continued to urge judicial officials, parties, and lawyers to conduct hearings remotely unless an in-person appearance was required for access to justice.



Many changes came from the Ontario Government’s Justice Accelerated strategy such as the introduction of online document filing and e-signature approvals for civil, family, and small claims court matters in February 2022, a $19 million investment into the Ontario Land Tribunal and Landlord and Tenant Board to accelerate decisions, and the implementation of modernized court rules and procedures. But the updated rules ruffled some feathers in the profession – when the new OCJ and Ontario Superior Court (“ONSC”) rules were released in March 2022, lawyers flocked to Twitter to air their grievances about in-person and virtual appearances.


The new court rules in Ontario for criminal proceedings (in effect as of April 4, 2022) have kept certain proceedings online such as set date and first bail appearances, with an emphasis on continuing to have detained parties appear through video conference from custody. As of April 19, 2022, the Guidelines To Determine Mode of Proceeding in Civil come into effect and shift the presumption of online appearances for examinations for discovery, mandatory mediations, and trials to in-person. The ONSC’s new Virtual Courtroom Etiquette guidelines also come into effect on April 19th. Notably, counsel will be required to robe for virtual proceedings that would require robes if they occurred in-person. While many lawyers joke about being able to fit into their waistcoats, new calls are scrambling to purchase their first robes.



Meghan King, an associate at Goodmans LLP, was called to the Ontario bar in June 2020. In the middle of a lengthy trial, and out of necessity, she is finally getting her robe, but it does not come without challenges. First, she feels fortunate that her firm is covering the cost. She recognizes that the burden of $1000+ investment for new calls is heavy on the heels of large student loan debts. Cost aside, getting your personally tailored robe is no small feat. With providers only open during business hours when she is in court, Meghan is taking her own measurements and struggling to complete the extremely detailed order form from Harcourts.


Details like wearing robes and only drinking water out of clear cups may seem frivolous in a conversation about access to justice in a post-pandemic world, but courtroom rules and etiquette are inherently tied to one’s ability to access justice. While this shift to integrating traditional courtroom rules into video conference appearances may be uncomfortable, it certainly signals a commitment to continuing virtual proceedings. At least in Ontario, as of April 2022, it seems that virtual court appearances are here to stay – with the very important caveat that meaningful access to justice must take precedent. It will be interesting to watch whether the Ontario Government continues to push for innovation when the urgency of the pandemic has diminished.





A Tenuous Articling Program & The LSO Mandatory Minimum Wage Debate

BY CHANTELLE MCDONALD, 1L


Ontario has seen shifts in lawyer licensing requirements and articling programs since our first regulatory body was created in 1797. However, one thread runs through - underrepresentation of racialized and economically disadvantaged groups in paid articling positions and senior roles in the profession. On April 28, 2022, the Law Society of Ontario (LSO) benchers will debate a mandatory minimum wage for articling students, and its usefulness as a tool to combat inequity in the licensing process.



During the late 19th and early 20th centuries, articling in Ontario was a mandatory practicum running alongside classes (sound familiar Linc Lawyers!?). As part of the practicum, students were responsible for finding articling principals to supervise them throughout their degree. Since the profession was primarily comprised of white men, women and racialized groups had significant difficulty locating and solidifying articling principals. Ontario’s second Black lawyer, Delos Rogest Davis, was admitted to the Bar by special statute after he failed to find a principal willing to supervise his articling work.


Over time, articling disentangled from the law school semester, becoming a separate placement required to satisfy LSO licensing requirements. While most graduating law students article before being called to the Bar, articling is not accessible for everyone. Every year, 10 to 15 percent of articling positions (i.e., 130-150 students) take underpaid or unpaid positions to satisfy articles. Alternate pathways are emerging in response, like X University’s Law Practice Program (LPP), and the Integrated Practice Curriculums at Lincoln Alexander School of Law and Lakehead University. Racialized students account for 18 percent of Ontario’s articling pool compared to 32 percent of X University’s Law Practice Program.



Against this backdrop enters a debate about whether articling students should have a mandatory minimum wage. The LSO has a history of lobbying for articling student exclusion from the Employment Standards Act, which led to the carve-out of articling students. In contrast, students in other training programs are covered and protected.


In 2018, the LSO was poised to implement a mandatory minimum wage requirement based on a recommendation from its Professional Development and Competence Committee (“Committee”). Then COVID hit, and the LSO paused implementation. The Committee then performed further research and, in November 2021, released the Experiential Training Enhancements report; which recommended not moving ahead with this guideline because of economic uncertainty. A primary reason? Forcing employers to pay students for work means that formerly unpaid students will go without placements.


Before its benchers vote on the issue, the LSO invited submissions from interested parties. Groups such as the Black Law Students’ Association of Canada (BLSA) and the Federation of Ontario Law Associations (FOLA) responded. While both sides of the debate claim they are protecting equity, FOLA and BLSA argue that failure to implement a mandatory minimum wage is a barrier to diversity in the profession.


FOLA called for the LSO to consider more appropriate pathways to licensing and questioned why alternate pathways are not more broadly available in Ontario. They also recommend new policy options, including incentives and exemptions, instead of another gatekeeping mechanism that potentially exploits students.