Delighted to announce the publication of Child Support Law in Canada on CanLII: https://canlii.ca/t/7nsqj. This is the first and only open-access, comprehensive guide to the law of child support across the country. It has been such a pleasure to work with Prof. Shelley Kierstead of York University – Osgoode Hall Law School as co-editors of this project. (And thanks also to University of Windsor Faculty of Law for letting me work on interesting projects that don’t generate any SSHRC money or peer-reviewed publications 😁 )
But the “stars of this show” are our incredible chapter authors, some of the finest family lawyers in Canada: Frances E. Chapman, Katherine Cooligan, Duncan Dagley, Jasmine Dong, Denniel Duong, Sarah Harland, Haley Hrymak, Kiarash Izadifar, Georgialee Lang BA JD FCIArb, Elysia Martini, Ken Nathens, Kaylee Ness, Kayleigh Pink, Vanessa Lam, Irfan Reayat, & Rebecca Winninger.
Please spread the word, and keep Child Support Law in Canada https://canlii.ca/t/7nsqj in mind for all your CS-related legal knowledge needs!
Category: Academic Publications
The Purpose of Civil Procedure
Civil procedure should be “just, speedy, and inexpensive,” according to the purposive rules found at the outset of many procedural codes. However, this formula creates as many questions as it answers. What does it mean for procedure to be “just?” What sorts of costs are relevant when considering how “inexpensive” procedure is? How should rule-makers and adjudicators compromise between justice, speediness, and inexpensiveness when these goals are in tension and resources are scarce?
This article offers a normative account of civil procedure’s purpose. The goal is to identify the warrant for“just, speedy, and inexpensive,” and then to explain and refine it. I argue that welfarism, a general normative theory of public policy, is implicit in modern civil procedure. Welfarism is the idea that public policy decisions should always seek to optimize welfare for all affected individuals. I defend welfarism as a theoretical basis for reforming civil procedure and resolving its hard cases, and propose three refinements to civil procedure’s purposive rules to give better effect to it.
Download: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6710042
Let’s Look Before We Leap: Why Ontario’s Civil Rules Review Needs a Research Phase
Advocates’ Quarterly, December 2025.
Downloasd at SSRN: https://ssrn.com/abstract=4907051
The Civil Rules Review (CRR) has proposed a thorough rewrite of Ontario’s Rules of Civil Procedure. The goal is to make civil litigation speedier, more affordable, and less complex. The CRR’s April 2025 Consultation Paper makes dozens of reform proposals, affecting every major phase of the litigation process. This short paper argues that the leaders of Ontario’s civil justice system should take the time to look before they leap. To implement changes by the end of 2025, as proposed by the original Terms of Reference for the Civil Rules Review, would be dangerously and unnecessarily premature. The consultation phase (currently just 10 weeks) should be extended, and a methodologically rigorous empirical evaluation should be conducted. This evaluation should be informed by a solid theoretical understanding of civil litigation’s benefits and costs; the middle section of this paper briefly sketches such a theory.
Does Lady Justice Need a Sword?
Review of Benjamin Perrin, Indictment: the Criminal justice System on Trial. Toronto: AEVO UTP, 2023.
By Noel Semple[1]
Lady Justice can often be found, in statute form, in or near courthouses. This symbol of the Western justice system is blindfolded to show neutrality. She carries a scale, to weigh facts and arguments fairly. Sometimes she also holds an olive leaf, to symbolize mercy and healing. A sword is the other accessory that Lady Justice invariably carries. The sword is a ubiquitous part of this symbol because most people believe that justice in general, and criminal justice in particular, necessarily involves inflicting pain upon wrongdoers.
Benjamin Perrin’s provocative new book Indictment is a call to leave the sword of justice in its scabbard. Perrin, a Professor at the University of British Columbia Faculty of Law, argues that Canada’s criminal justice system is “fundamentally flawed,” because its objectives cannot be met by the painful and coercive techniques that it uses.[2] Perrin offers a new vision for criminal justice based on healing trauma, recentering victims, abolishing traditional prisons, and empowering indigenous Nations.
Continue reading “Does Lady Justice Need a Sword?”Tribunals for Access to Justice in Canada
Forthcoming, Canadian Bar Review (Spring 2025)
Tribunals have great potential to improve access to justice in Canada, and the goal of this article is to better understand this potential. It begins by defining “tribunals” and “access to justice,” the key concepts of this article. Because tribunals and trial courts are functional alternatives for the resolution of many legal disputes, the article first reviews the merits of Canada’s trial-level courts in terms of creating access to justice. It then turns to tribunals, reviewing some objective evidence of tribunal excellence in this regard.
Four key attributes of tribunals make them advantageous alternatives to trial-level courts for the accessible and just resolution of many types of legal dispute. First, tribunals are specialized instead of having general jurisdiction. Second, tribunals apply teamwork to dispute-resolution, instead of assigning all responsibility to individual adjudicators. Third, healthy forms of accountability are easier to establish in tribunals than they are in courts. This includes accountability of individual members to the tribunal and accountability of the tribunal to the legislature that created it. Finally, tribunals can be designed for maximal performance in creating access to justice, by contrast to courts which, for good reasons, resist design or reform efforts coming from outside themselves.
The final Part of the article argues that tribunals can advance access to justice not only by taking on dispute-resolution work that courts would otherwise do, but also by offering authoritative legal vindication of rights that would otherwise be abandoned, or resolved in a completely privatized way. The tribunal promise of accessible adjudication can also be expected to improve the quality of settlements, in terms of upholding parties’ substantive legal rights.
Full text (draft) : Tribunals for Access to Justice in Canada
Tribunals in Canada: A Coming of Age
(2024) Canadian Journal of Administrative Law and Practice, Vol 37, Page 135.
Tribunals constitute a vitally important part of Canada’s justice system, but their place in the Canadian state is fragile and their essential function is misunderstood. This article explains the need for pro-functional tribunal law, which would position tribunals to consistently deliver on their potential. Differentiating tribunals dedicated to resolving legal disputes from non-tribunal agencies that do other work is the key. Differentiation would advance goals related to specialization, the separation of powers, and democracy in Canada. It would allow tribunals to escape the taint of partiality to government. It would also set the stage for a professionalization and depoliticization of tribunal appointment practices, securing tribunals and their users from the type of dysfunction that has recently plagued Ontario’s tribunals. The final Part of the paper argues that the Canada’s legislatures, rather than its appellate courts, are the most promising venue for the adoption of pro-functional tribunal law.
Full text: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4780291
Risk, Freedom and the Regulation of Professions
Review of Michael Trebilcock, Paradoxes of Professional Regulation: In Search of Regulatory Principles. Canadian Business Law Journal, Vol. 67, page 247.
Draft Online: https://ssrn.com/abstract=4640225
The Inaccessibility of Justice in Ontario’s Adjudicative Tribunals: Symptoms and Diagnosis
(2024) Toronto Metropolitan University Law Review, Vol. 2, No. 1, page 84
Four of Ontario’s highest-volume adjudicative tribunals became seriously dysfunctional in late 2018. Systemic delays of months or years arose, basic procedural rights were abandoned, and substantive miscarriages of justice became common in the fields of residential tenancy, human rights, and entitlement to benefits. This article describes these symptoms, before seeking to diagnose the underlying problem. The proximate cause of the dysfunction was the approach to tribunal appointments taken by the executive branch of Ontario’s government. Members appointed by the previous government were “de-appointed” en masse, and meritorious replacements were not found promptly. Some of these problems began prior to 2018. Shortcomings in the other two branches of Ontario’s government also contributed to the dysfunctionality. The Ontario Legislature’s statute governing adjudicative tribunals, and its committee overseeing appointments, lacked the powers and resources that would be necessary to safeguard them from executive neglect. Meanwhile, Ontario’s courts are not an accessible and proportionate forum to backstop adjudicative tribunals. Moreover, a review of the case law shows that they lack doctrinal tools to hold the Government responsible for systemic delay and counterproductive appointment practices.
Full text: https://www.tmulawreview.com/current-issue/inaccessibility-justice
Better Access to Better Justice: The Potential of Procedural Reform
Canadian Bar Review, Vol 100, No. 2
Improving access to justice is often identified as a goal of reforms to legal procedure. What does access to justice mean in this context? This article proposes that “better access” and “better justice” should be understood as distinct but overlapping goals. Access improves when procedural costs confronting litigants are reduced. Justice has three qualities—substantive justice, procedural justice, and public justice—which legal procedure can produce to a greater or lesser degree. Although access and justice are sometimes in tension as goals for procedural reform, they are also harmonious. Better access to better justice is a worthy goal for procedural reformers. Welfarism is introduced in the final part of the article, as a way to focus access to justice reforms and make the necessary tradeoffs. This article’s argument is illustrated by three procedural reform trends—mandatory mediation, smaller-dollar procedure, and inquisitoriality.
Full text: https://cbr.cba.org/index.php/cbr/article/view/4772
Civil Procedure and Practice in Ontario, Vol. 2
I’m delighted to announce that the updated 2022 edition of Civil Procedure & Practice in Ontario is now live at https://www.canlii.org/en/commentary/81787.
We are also grateful to our publishers CanLII, and in particular the team of Sarah Sutherland, Alex Tsang, and Alicia Lazear. Assistant Editor Sheldon Leung and our Windsor Law editorial team (introduced below) were essential to the success of this project.
Review of Matthew D. Adler’s “Measuring Social Welfare: An Introduction.” New York, NY: Oxford University Press, 2019, 337 pp.
Erasmus Journal for Philosophy and Economics, Vol. 13, No. 1. (Spring 2020) https://ejpe.org/journal/article/view/442
My review of a terrific new book, offering a way to make public policy decisions objectively and ethically. The book is here.
Review:
Good Enough for Government Work? Life-Evaluation and Public Policy
The Journal of Happiness Studies, 2019, Volume 21, 30 pgs.
A life-evaluation question asks a person to quantify his or her overall satisfaction with life, at the time when the question is asked. If the goal of public policy is to make individuals’ lives better, does it follow that maximizing aggregate life-evaluations constitutes policy success? This paper argues that life-evaluation data provides a solid basis for welfare-consequentialist policy-making. This is illustrated by the successful argument for expanding state-funded mental health services in the United Kingdom.
However, life-evaluations do not always provide a complete account of individual welfare. Policy-makers therefore must sometimes inquire into the extent to which individuals’ preferences would be fulfilled, if different policies were to be adopted. This article proposes synthesizing life-evaluationist and preferentist data about individual welfare, as a basis for rational policy-making.
Full text: https://ssrn.com/abstract=3397151
Billing without Bilking: Regulating Time-Based Legal Fees
(2020) Forthcoming, Dalhousie Law Journal. 28 pages.
Online: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3616319
Measuring Legal Service Value
(2019) University of British Columbia Law Review, Vol. 52, No. 3.
This article proposes a theoretical foundation for measuring legal service value. It aims to support efforts to compare the value of offerings from different law firms, as well as alternative legal service providers.
The value of any legal service depends on (i) its effectiveness, (ii) its affordability, (iii) the experience it creates for its clients, and (iv) third party effects (the impact the service-provider has on people other than the client).
These four elements of value can be quantified through various metrics applied to firms or entities that provide a given service. Output metrics evaluate either the actual real-world impact of a legal service, or the written and oral work products of the firm. Internal metrics check for processes or structures within a firm that demonstrably support high value outputs. Input metrics focus on the attributes and credentials of the individuals who provide the service.
This article concludes that measuring legal service value is challenging, and may be dangerous if done poorly. Nevertheless, the rewards justify the challenge. Higher quality legal professionalism, more effective and less burdensome regulation, and consumer empowerment are among the payoffs if we can find better ways to measure legal service value.
Full text: https://ssrn.com/abstract=3144771
Everybody to Count for One? Inclusion and Exclusion in Welfare-Consequentialist Public Policy
Revised with major modifications, resubmitted June 2020, Moral and Political Philosophy.
Public policy should try to make individuals’ lives better than they would otherwise be, according to welfare-consequentialism. This article asks which individuals should count in welfare-consequentialist public policy analysis. Possible answers to the “who counts” question fall along a spectrum between parochial and inclusive. One relatively parochial answer is that only welfare effects experienced by the living human constituents of government should be considered. At the other end of the spectrum, a highly inclusive answer would be that welfare impacts on all individuals who are capable of having welfare should be weighed equally in a social welfare function.
The paper proposes a two-level theory to respond to the “who counts” question. Two-level theories distinguish between (i) what is ethically ideal, and (ii) decision procedures for humans who want to give effect to an ethical ideal, but have limited capacity to do so. Persuasive arguments support an inclusive approach that encompasses the unborn, foreigners, and animals. However, human predictions of the welfare consequences of policy options are prone to error. Welfare predictions about individuals who are temporally, politically, or biologically dissimilar from the predicting government are especially likely to be wrong. Using a social welfare function with excessive welfare-prediction requirements to make decisions may undermine the government’s capacity to correctly predict and advance anyone’s welfare. The paper concludes by analyzing alternative ways to make welfare-consequentialist decision procedures more parochial, and therefore more practical for real human governments seeking to make life better for everybody.
Full Text Online: https://ssrn.com/abstract=3392370