Ultra Vires Vol 17 Issue 5: 2016 February

FEBRUARY 24, 2015 | ULTRAVIRES.CA

THE INDEPENDENT STUDENT NEWSPAPER OF THE UNIVERSITY OF TORONTO FACULTY OF LAW

IT'S FINALLY OPEN BRETT HUGHES (3L)

PHOTOS BY MATT HOWE (3L) AND BRETT HUGHES (3L)

The new Bora Laskin Library began its new life in Jackman Hall with a soft open on Tuesday, February 16, the beginning of reading week. Students flocked to the new space and racked up many Facebook likes for posting the first images of the new library. Then, after the first week sans Wi-Fi, and a weekend move for the librarians, the space officially opened on Monday, February 22. The event was marked with balloons, free pencils and candy, and some distinguished guests. Justice Rosalie Abella of the Supreme Court of Canada toured the building with Dean Ed Iacobucci and former Dean Mayo Moran (now Provost of Trinity College).

The administration has warned students to expect some noise from construction and ongoing “repatriation” of the library’s book collections over the next few weeks. Various student services, including the Financial Aid Office and Career Development Office, will be the next to move into the new space.

Features of the new library include: an expanded information commons with new computers; twelve group study rooms, up from four in the old library; a new Bluetooth-enabled scanner that will allow students to scan directly to their phone or laptop; a fireplace; more natural light; more space for books; and more space for studying.

New Intersession Planned Focus To Be On Intensive Courses, Experiential Learning MAUD ROZEE (1L) At the February 10 Faculty Council meeting, Associate Dean Kerry Rittich presented the Standing Curriculum Committee’s initial discussions about introducing an “intersession” to the Faculty’s academic calendar. This is one of Dean Iacobucci’s priorities, which he raised at the first Faculty Council meeting this year. Other law schools, including Western and Harvard, have similar short academic terms in January.

The intersession would be two to three weeks in length, most likely in January. It would allow students to participate in new educational opportunities which are difficult to provide during the regular course schedule, including workshops, field research, or brief internships. It would also allow the law school to offer a wider range of intensive courses, and make the scheduling of them easier.

The committee has considered a number of administrative issues about the proposed intersession. Upper-year participation would likely be mandatory, although many different modes of participation will be offered. The first-year schedule is likely to continue as is, at least for the first few years of the intersession.

For upper-year students, the intersession would likely substitute for one course in the winter semester, with the remaining courses having increased weekly class time. Extending the semester by one week (thereby compressing the exam period), and holding more Friday classes were also floated as possible ways to make up for time lost by the new intersession. The committee is aiming to launch this change in the 2017-2018 academic year. Associate Dean Rittich said that the committee would consult widely before committing to a plan.

Associate Dean Rittich also commented on the recent changes to the first-year curriculum. The primary changes are the switch to semesters, the introduction of the Legal Methods course in orientation week, and expansion of the Legal Research and Writing course. According to the Standing Curriculum Committee, the changes have mostly been favourably received by first-year students, faculty members, the administration, and librarians.

Jordana Laporte, Interim Director of the Career Development Office (CDO), provided a brief update on the CDO’s activities so far this year. She reported that 8.5% of the Class of 2016 is still looking for articling positions, which is consistent with prior years. The CDO expects that 95-97% of the class will ultimately secure articling positions before the end of the year, or the same range as recent years. As

for second-year students, approximately 65% of the Class of 2017 has found a summer job.

Laporte also noted that 17 students are headed to New York for the summer, and that 13 out of 24 Ontario Court of Appeal were offered interviews.

Associate Dean Rittich also presented the planned sessional dates for 2016-2017 to Faculty Council for approval. The schedule again includes a fair number of “deemed” Fridays— i.e. instead of being a day off, certain Fridays are treated as weekdays for class scheduling.

As usual, the deemed Fridays accommodate public holidays such as Labour Day, on-campus interviews (OCIs), and certain Jewish holidays.

ALSO IN THIS ISSUE LAW SCHOOL COMMITTEES

THINKING ON ISIS

FROM THE ARCHIVES

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EDITORIAL/NEWS

2 | FEBRUARY 24, 2016

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Editorial: Give Us Back Our Facebook Groups THE EDITORIAL BOARD The Facebook groups for each year’s U of T Law class provide an important platform for communication between students. They allow students to share information—to promote events, hunt for roommates, and ask for lecture notes. The groups also serve as forums for discussing student concerns at the law school. Or at least they used to.

In past years, students have used class Facebook groups to air the difficulties, frustrations, and disputes that they encounter during their time at law school. Often, these problems have involved the administration. When students were asked to choose between power outlets and desk space for writing final exams; when they were disappointed with the lack of student input into the decanal selection process; when they encountered professors recycling exam problems—they took to Facebook to discuss the problem with the student community, and to organise a response.

The student Facebook groups were once organised by students, for students. Since 2014, however, U of T Law’s admissions office has created the Facebook groups and retained control over them.

Professor Benjamin Alarie and admissions director Jerome Poon-Ting are the admins for the Class of 2017, 2018, and presumably 2019 Facebook groups. This is inappropriate for at least two reasons.

First, as group admins, Professor Alarie and Mr. Poon-Ting both grant access to the groups and have the power to remove students from them. Mr. Poon-Ting used this power to remove certain upper-year students from the Class of 2018 Facebook group last summer. He said that he did so because he had an “overall communication strategy” concerning when to “launch [the upper-year] presence on the group page” and that he would “assist with passing info along” until then. He later as-

serted that he removed the students because he did not recognise their names. Still, beyond perhaps ensuring that incoming students get into the groups, the U of T Law administration should play no role in governing the groups’ membership.

Students can decide for themselves whom to admit and whom to remove.

Second, the mere presence of U of T Law administrators in the groups allows them to surveil everything that any student posts or likes. This has a chilling effect on student expression. We have heard from many students that they are unwilling to comment on certain issues, or that they restrict what they say, in light of the presence of U of T Law administrators. It is essential that students have a shared space where they can speak freely about issues of common concern without administration oversight and surveillance.

The administration has suggested that it views

the Facebook groups as part of its “communication strategy.” But the Faculty of Law can already communicate to students through its email listservs, Facebook page, Twitter account, Tumblr, and website. Students have only one online platform for discussion with each other.

We call upon the U of T Law administration to remove themselves from all student Facebook groups immediately and to appoint Students’ Law Society (SLS) representatives as group admins instead. We understand that it is necessary to ensure that admitted students are granted access to these groups. This could be addressed by allowing the SLS to send out the invitation to admitted students to join the Facebook groups.

If the U of T Law administration wishes to continue exercising control over the student Facebook groups, we call upon the SLS to create alternate groups for students to join.

Parkside, DLS, and the Challenge of Multi-tenant Files MATT HOWE (3L) It’s been described as a unique advocacy project sitting at the crossroads of traditional representation and community organizing.

Students in the Housing Law division of Downtown Legal Services (DLS) have been reaching out to a number of tenants in the Parkside Student Residence, a private apartment complex marketed towards students from U of T, Ryerson, OCAD, and George Brown College.

The specific allegations are confidential. However, Parkside - described on its website as “Toronto’s newest, state-of-the-art accommodations” - has been criticized publicly for shoddy workmanship and false advertising.

As reported in Metro last September, some students who leased apartments in the “top-quality” complex were disappointed to find their units were haphazardly constructed with low-quality materials. Photos online show uneven, paint-stained baseboards, exposed electrical cables, and sloppi-

ly-built interior walls.

Move-in was delayed for hundreds of students after the City deemed it “unfit for occupancy” in late August. The developer, Knightstone Capital Management, was forced to put students up in hotels for several weeks until the building met City standards. These hotels were as far away as Mississauga and Scarborough, requiring Knightstone to shuttle students to and from their respective schools.

DLS started receiving calls from individual Parkside students in late September, and soon realized that a sizeable group of students may share similar legal issues. Lisa Cirillo, Executive Director of DLS, told Faculty Council in November that many were international students who had been directed to Parkside by U of T’s Housing Services office. Many of these students may have been justifiably confused as to whether they were entering contracts to live in a sanctioned University resi-

dence, or lease agreements with a private landlord.

“Occasionally, clinical practice identifies enough potential clients with common issues to require something similar to a class action effort,” said Benjamin Ries, DLS’s supervising housing lawyer.

Credit students and 1L volunteers went to Parkside to distribute flyers advertising an information meeting for students.

Parkside’s intense security did not make that easy. Parkside requires all non-residents to provide ID and have their photo taken upon entry, and they must be escorted by a resident at all times while inside the building. Still, with the help of residents, DLS volunteers managed to spread the word to a number of prospective clients.

Surveys distributed at a later meeting of prospective clients were then used to consolidate information and group students with similar issues together. The Residential Tenancies Act does not allow

for class proceedings per se. Instead, an application must be brought on behalf of all the tenants who are experiencing the same problem. Typically, remedies will not be awarded to individual tenants unless they’re included in the application.

In addition to the administrative challenges presented by recruiting and organizing multiple complainants, ethical difficulties arise in taking instructions from multiple clients in the same dispute. DLS’s preferred strategy in these types of situations is to draft retainer agreements containing instructions to pursue a set of common goals, while recommending each prospective client obtain independent legal advice before signing the joint retainer. “We can’t rule out that different individual experiences might suggest slightly different claims or strategies”, Ries said, “but DLS can’t prefer any [one client’s] interests over others.”

Ries is critical of the unhelpful structure of the Residential Tenancies Act, 2006 (RTA) in this re-

Ultra Vires is an editorially independent publication. We are open to contributions which reflect diverse points of view, and our contents do not necessarily reflect the views of the Faculty of Law, the Students’ Law Society, or the editorial board.

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Brett Hughes Matt Howe & Alex Redinger Lisana Nithiananthan & Rona Ghanbari Alex Carmona & Geetha Philipupillai Clara Rozee & Amir Eftekarpour Nick Papageorge, Maud Rozee, and Justin Khorana-Medeiros Alex Wong, Roxana Parsa, and Holly Sherlock Harrison Cruikshank Simon Cameron Becca Howes Andrew Ngo Trevor Snider

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NEWS

ultravires.ca gard. “Why can’t one or two tenants go to the Landlord and Tenant Board and establish the nature of the breaches that have been experienced by everyone in the building? This is supposed to be a strength of the legal clinic model – spotting systemic issues and solving problems for groups in the community, but we’re not always assisted by the law in doing that.” He thinks the problem could be solved by amending the Statutory Powers and Proceedings Act to allow for a class action-like proceeding, or simply by the Landlord and Tenant Board taking a more expansive view of its remedial powers.

Ries notes problems with insufficient enforcement as well. While the RTA (a provincial act) does include “Offences” provisions, investigations and prosecutions are relatively rare. “[The Province] must either think that landlords are an incredibly well behaved industry which doesn’t need

this kind of intervention, or [more likely] it’s just not a priority.” Instead of requiring community legal clinics to round up individual complainants, Ries argues that the Province could solve these systemic problems more easily Ries declined to comment on whether DLS remains engaged in any work regarding Parkside.

Despite the challenges associated with this type of work, Ries commended the learning and advocacy opportunities presented for students, and has noted a trend toward multi-tenant files with a community outreach component. “This has really been a chance to reimagine the traditional retainer from the ground up”, Ries said, “students have been instrumental in terms of collecting and organizing all the information and evidence that can come from large groups of clients.”

Introduction To U of T Law’s Committees MATT HOWE (3L) From the “semesterization” of the curriculum to decisions about financial aid policy, much of the business of the law school is discussed in what have been termed “Dean’s Committees.” This, however, is a misnomer for many committees. Although the Dean can strike advisory committees for his own benefit, most major committees are actually for Faculty Council. The Dean has come to exercise more control over Faculty Council committees over the past two decades (more on this next issue).

These committees, made up of Faculty, administrators, and Students’ Law Society (SLS) representatives, discuss a wide range of issues touching on almost every aspect of the law school.

Given the important work they do, we thought it would be useful to let readers know what these committees are up to. Surprisingly, this information is not always easy to obtain. Meetings are closed to non-members of the committees; the committees do not issue agendas in advance of meetings and it appears that agendas are not even produced and distributed internally for committee Admissions Committee Mandate: Committee members review the personal statements, optional essays, and personal sketches of applicants to the Faculty of Law. Members: Faculty: Benjamin Alarie and Alexis Archbold (Co-Chairs), Catherine Valcke, Anthony Niblett, Anna Su, Richard Stacey, Albert Yoon, Douglas Sanderson, and Promise Holmes-Skinner. SLS: Maya Bielinski, Fraser Malcolm, and Andrew Wang.

How does it work? Candidates’ materials are reviewed and assigned a score between 0 and 4.

Each application is reviewed by at least three committee members. This score, in addition to the candidate’s GPA and LSAT scores, determine if they will receive an offer.

There is an initial “culling” of applications based on low GPAs and LSAT scores. This process removes from the Committee’s consideration those applicants whose GPAs and LSATs are too low to be saved by a perfect “4” on their written materials. While this might be an efficient way to reduce

members; minutes are not released, not even in partially redacted form. Most committees simply release final reports at one of the last Faculty Council meetings of each academic year, when it is too late for students to shape their activities.

Assistant Dean, JD Program Alexis Archbold has told some SLS members that they cannot discuss what goes on in committee meetings without permission. Archbold indicated that all meetings are, in effect, presumptively entirely in camera.

Archbold said there was a written policy to this effect, but when asked by the SLS to produce the policy, she did not respond.

Despite some challenges, we’ve done our best to provide an up-to-date reporting on what these committees are working on, some of which has major implications for the future of U of T Law.

the work of the committee in the average case, it can prejudice students who use the optional essay to explain a poor grade or LSAT score. Under the current system, a student who suffers from a disability or has experienced hardship, and received a lower grade as a result, may miss out on a chance to explain their poor grade to the Committee.

What has it done this year? The Committee has reviewed two “waves” of applications, leading to a number of offers. The workload is intense each SLS member was tasked with reading 110 applications in the first wave alone - and each application is reviewed by three Committee members before a final grade is assigned. Given the number of applications, several have made it through Committee without being read by a student member. The SLS raised this as an issue, arguing that a student-perspective is needed when reviewing all applications. The Chairs of the committee have agreed to resolve this problem going forward.

What is planned for the rest of the year?

There is one wave of applications left to review.

Matt Howe

FEBRUARY 24, 2016 | 3

SLS Hosts Town Hall On Tuition and Financial Aid MATT HOWE (3L) On Monday, February 22, the Students’ Law Society (SLS) hosted a town hall meeting on tuition and financial aid. The meeting was led by the three SLS members sitting on the Dean’s Committee on Financial Aid: SLS President Andrew Wang, 2L Student Affairs and Governance (StAG) rep Dillon Collett, and 1L StAG rep Katie Longo.

The SLS reps said that the goal of the meeting was to canvass student opinion to inform their advocacy on the committee and in interactions with the administration.

Discussion floated between a number of related issues. One focus was the distribution of the financial aid pot. Students whose parents earn up to $200,000 per year may be eligible for aid. Given the limited funds available, many students in attendance expressed a preference that distribution be focused more on students with parents at the lower end of the income scale. One student remarked: “I know a bunch of people who get like $700 [given their parent’s relatively high incomes].” She continued: “It’s silly, there are a bunch of people who need it more.”

Several students also called for a more progressive division of bursaries versus loans, such that lower-income students receive a higher proportion of their aid in the form of bursaries while better-off students would get more money via interest payments on loans.

Students debated how to measure need. Several argued that a “needs-based” financial aid program, which our Faculty is committed to, must take into account parental assets, rather than just income. Some raised concerns that parents should not have to “sell their homes so their children can access financial aid.” Others responded that parents owning a home or homes can draw on the equity, while parents who rent do not have this option. There was also a discussion on whether and how the financial aid program should consider pre law school debt.

Other issues relating to the financial aid policy were discussed, including the haphazard emergency loan program, uncertainty in the appeals process, and inaccuracies in the Faculty’s messag-

Appeals Committee Mandate: Hears appeals from decisions made by the Associate Dean and the Assistant Dean of the JD program, as well as appeals regarding grades. Its purpose is to ensure that the standards, regulations, and policies of the Faculty of Law and University of Toronto have been fairly applied and are appropriate in the circumstances.

Members: Faculty: Martha Shaffer (Chair), Peter Benson, Mohammad Fadel, Sophia Moreau, Jim Phillips, and Richard Stacey. SLS: Sam Kim and Andrew Lynes.

What has it done this year? The Appeals Committee has yet to meet this year, as no appeals have been escalated to a point where it is required.

This is not uncommon. The majority of appeals relate to grades, and many steps must be completed – such as meeting with the professor, second reading of the assignment, etc. – before the Committee needs to convene.

Rona Ghanbari

ing around its aid program. The town-hall heard from several students who had relied on a “provisional assessment” of their entitlement to aid, only to later learn that they would actually be receiving far less.

The discussion ultimately moved towards the Faculty’s upcoming fundraising campaign for student financial aid. Some noted that criticism from students during the campaign could generate poor optics for the Faculty, which may give students leverage to push for changes.

One change might be the amount of tuition revenue the Faculty currently sets aside for financial aid. A handout distributed by the SLS noted that when the Faculty began its drastic tuition increases, it promised to set aside 30% of the yearly increase in tuition for needs-based financial aid.

This commitment appears to have been abandoned, with the set-aside currently around 10%.

Students also levied more general criticisms at the fundraising campaign, which is in a “quiet phase” and has no plan or targets. Many students stressed the need for measurable fundraising goals and meaningful objectives. Some thought that the campaign might enable the school to redirect other revenue away from financial aid. Others simply did not feel we should be relying primarily on wealthy donors in order to foster accessibility at the law school.

Evan Davidson, the Vice President of StAG for SLS, cautioned against vocally protesting the campaign at this point. He pointed out that the Faculty has just wrapped up a major fundraising campaign for the new building, and that they are understandably concerned with donor fatigue.

“They’ll probably have more concrete goalposts later,” said Davidson. “[The quietness of the campaign] may actually be what needs to happen right now.”

Others disagreed. One student noted that “closed door meetings have not necessarily been effective” at solving any problems relating to financial aid and tuition thus far.

Clinical & Experiential Education Committee Mandate: Exploring ways in which experiential education might be meaningfully incorporated into the classroom.

Members: Faculty: Brenda Cossman (Chair), Anita Anand, Ariel Katz, Vincent Chiao, Emily Satterthwaite, Audrey Macklin, Anthony Duggan, Cheryl Milne, and Lisa Cirillo. SLS: Andrew Lynes and Debbie Wang.

What has it done this year? The Committee presented its interim report to Faculty Council in January. The discussions have thus far been focused on defining experiential education, articulating the value it adds to a legal education, and taking stock of the experiential opportunities already offered.

The Committee has opted for a particularly broad view of experiential education, described by Professor Cossman as education which requires students to “engage in problem solving in the classroom.” Getting students to do “issue spotting” on hypothetical problems in the classroom is

NEWS

4 | FEBRUARY 24, 2016 an example, as are drafting and mooting exercises. According to the Committee, these types of experiences might have the value of better preparing students for legal practice, in addition to being more interesting than traditional lectures. Andrew Lynes, 3L StAG Rep, thinks more “issue spotting” might have the added benefit of better preparing students for exams.

What is planned for the rest of the year?

The Committee continues to audit the Faculty’s offerings. Given the broad nature of the mandate, they do not expect to produce any concrete recommendations this year.

Matt Howe

Environmental Sustainability Working Group Mandate: Dean Iacobucci did not provide the group with a mandate this year. It effectively sets its own agenda.

Members: Faculty: Andrew Green, Denise Reaume, Gian Medves, Paul Handley, and Anver Emon. SLS: Debbie Wang, Philip Omorogbe, and Aidan Fishman.

What has it done this year? The group has only met once this year. Five issues were discussed.

First, the plans for bike storage in the new building are still unsettled. The committee did not develop a plan or recommendation. Second, the University’s changes to how it manages food vendors may provide new opportunities to focus on sustainability in the selection of food services for the new building. Third, the group will go on a tour of the new building soon with a focus on environmental features. Fourth, one committee member noted that the older buildings (i.e. Falconer) are very energy inefficient and should be a focus after the completion of the new building. Finally, one committee member suggested that the faculty should develop a sustainability policy.

What is planned for the rest of the year?

There is no agenda for the next meeting. Discussion of the above items is likely to continue.

Brett Hughes'

Tuition and Financial Aid Members: Faculty: Alexis Archbold and Benjamin Alarie (Chairs), Anthony Niblett, Mariana Prado, Albert Yoon, Aladdin Mohaghegh, and Rejeanne Puran. SLS: Katrina Longo, Dillon Collett, and Andrew Wang.

Mandate: The Committee reviews all financial aid appeals. It also debates broader policy issues relating to tuition and financial aid.

What has it done this year? The committee has evaluated all financial aid appeals to date. The SLS Committee members also set the agenda for an entire meeting to discuss student concerns.

Three issues were brought forward. First, the SLS called on the Faculty to improve access to credit and develop a better response to students who cannot secure private loans because of their credit scores. Second, they flagged the need for the Faculty to release more data on the financial aid program and the economic composition of the student body. Third, they raised the possibility of changing the way the financial aid pot is divviedup, such that more money is given to students who need it the most.

What is planned for the rest of the year?

The SLS has organised a town hall on the topic of financial aid and tuition and the student members of the committee will be bringing forward the students’ concerns/comments in future meetings.

Daniel Carens-Nedelsky

Gender, Accessibility Committee

&

Diversity

Members: Faculty: Alexis Archbold and Mariana Prado (Chairs), Angela Fernandez, Emily Satterthwaite, Anver Emon, Martha Shaffer, Sarah Pole, Jerome Poon Ting, Trudo Lemmens, and Lisa Del Col. SLS: Katie Longo, Dillon Collett, and Evan Rankin. Graduate students: Megan Rossa and Ido Katari.

Mandate: The committee explores ways to promote diversity and inclusivity at the law school and makes recommendations to that effect.

What has it done this year? The committee has reviewed the results of the February 2014 survey on diversity and student experiences of marginalization or of issues they have faced due to socioeconomic background, disability, parent or care-giver status, English language proficiency, religion, age, sexual orientation and gender. A number of recommendations were made to address these issues. The committee has also instituted a second inclusivity training for 1L students which occurred in January. Finally, the committee has additionally made recommendations on the use of the multi-faith room in the new Jackman Law building.

What is planned for the rest of the year?

The final meetings of the year will consist of finalising the recommendations for the multi-faith room and the proposals made in response to the 2014 survey.

Roxana Parsa

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This year, it is also focused on the move into the new Bora Laskin Library, serving as a resource and providing feedback to the Library in the transition. Finally, the Committee is looking into a digital repository for Faculty scholarship.

What has it done this year? The committee discussed ways to reduce disruptions by having the move take place over reading week, extending short-term loans to accommodate the moving weekend, and letting students know in advance of the move.

While a decision about which digital repository system to use ultimately lies with the Faculty, the committee has discussed the merits of the different systems. The committee discussed different systems including the SSRN and whether to use UofT’s central library’s network. The conversation centred around one particular system, the BePress Digital Commons system, which Osgoode recently adopted. The system would allow the Faculty to collate all of its research on one digital platform. But it would cost $20,000 a year. The SLS was originally against spending this much on a research platform but agreed to discuss it further in their weekly meetings.

What is planned for the rest of the year?

The Committee has agreed to implement a Google Forms Suggestion Box where students can leave their feedback about the new library.

Also, having discussed different options for a Digital Commons Repository such as BePress, Google Scholar, UofT’s central repository and SSRN, the Faculty will make the final decision about which platform to proceed with.

Geetha Philipupillai

Mandate: The Committee is generating ideas on how the Faculty can improve its international ties. The current aim is to develop a handful of strong partnerships with other universities, particularly those outside of North America.

What has it done this year? The Committee has canvassed student opinion on visiting scholars. Particular interest was expressed in having more international law scholars from China visit the Faculty. The Committee also discussed the possibility of an exchange program with an American law school. Despite a general consensus that the very top law schools would not be interested in such a program, the Committee intends to reach out to certain schools, including Berkeley, to test their interest.

What is planned for the rest of the year?

With respect to faculty exchanges and international interaction, the Committee intends to canvass younger faculty to see how they can help them establish more international ties.

Justin Khorana-Medeiros

Library and Technology Committee Members: Faculty: Gian Medves & Ariel Katz (Chairs), Sophia Moreau, Mohammed Fadel, Malcolm Thorburn, Paul Handley, Dylan Reid, Susan Barker, John Bolan and Andrew Martin. SLS: Philip Omorogbe and Aidan Fishman.

Mandate: The Committee's mandate is to ensure that library services and technology are responsive to the needs of students and Faculty.

Mental Health Committee

What is planned for the rest of the year? The Committee will have its first meeting in March.

One of the issues addressed each year is whether U of T should participate in any of the additional moots it has been invited to. Another perennial issue - whether the upper year moot should be part of first year - is currently being considered by the Standing Curriculum Committee as part of its discussions around a new intersessional term.

Alex Redinger

Student Affairs Members: Spencer Burger (Chair), ???

Mandate: The Student Affairs Committee functions as a residual committee, meaning it acts with respect to issues that do not fit neatly into the “boxes” of other Dean’s Committees.

What has it done this year? So far this year all issues have fallen under the mandates of other committees, or have been “individuals’ issues” more appropriately dealt with directly by the administration on a case-by-case basis. As such, the committee has not met this year and evidently will not do so until an issue arises that must be dealt with by Student Affairs rather than by another committee or the administration. It is not immediately clear what type of issue would fit this bill.

Nick Papageorge

International Advisory Committee Members: Faculty: Kerry Rittich and Karen Knop (Chairs), Samer Muscati, Michelle Rosenstock, Sara-Marni Hubbard, Jerome Ponn-Ting, Audrey Macklin, Ayelet Shachar, Albert Yoon, Patrick Macklem, and Larissa Katz. SLS: Debbie Wang and Samuel Mosonyi.

Mandate: The Committee deals with all issues relating to the mooting program at U of T Law.

and

Wellness

Members: Faculty: Alexis Archbold (Chair), Martha Shaffer, Anver Emon, Larissa Katz, Anthony Duggan, Sara-Marni Hubbard, Lisa Del Col and Yukimi Henry. SLS: Katrina Longo, Philip Omorogbe, and Maya Bielinski.

Mandate: Exploring the role that the Faculty should play in supporting students in the areas of mental health and wellness and making recommendations on the subject.

What has it done this year? The Committee has reviewed the evolution of mental health and wellness programs at the university and within the law school and has compared these services to other universities and professional programs (mainly in North America). The SLS members have brought particular issues and concerns that have been raised by other students to the committee (for example, the need to clarify the sick-note policy, for the CDO to do more to minimize the stress of OCI’s and the 1L recruit, and for more programs on debt management to help minimize the mental health costs of high tuition).

What is planned for the rest of the year?

This committee is holding a town hall in order to canvas student opinions on the current mental health and wellness programs on offer at the school. The final meeting of the year will be concerned with cataloguing the issues raised at that town hall and proposing solutions/next steps to address those concerns.

Daniel Carens-Nedelsky

Mooting and Advocacy Committee Members: Faculty: Sara Faherty (Chair), Martha Shaffer, and Malcolm Thorburn. SLS: Evan Rankin and Fraser Malcolm.

Short-Term Curriculum Committee Members: Faculty: Kerry Rittich (Chair), Vincent Chiao, Anita Anand, Richard Stacey, Douglas Sanderson, and Sara Faherty. SLS: Spencer Burger.

Mandate: The Committee organizes the “Sessional Dates” for each academic year.

What has it done this year? While the Committee has yet to meet this year, the sessional dates for the 2016-2017 academic year were approved at the most recent Faculty Council.

Justin Khorana-Medeiros

Standing Curriculum Committee Members: Faculty: Kerry Rittich (chair), Brian Langille, Catherine Valcke, Mohammed Fadel, David Schneiderman, Andrew Green, Anthony Niblett, and Sara Faherty. SLS: Andrew Lynes, Sam Kim, and Samuel Mosonyi.

Mandate: The Standing Curriculum Committee currently has two main functions. The first is exploring the possibility of an “intersession” between our regularly scheduled terms where upper year students would be required to take intensive courses. The second is a review of the changes to the first year curriculum.

What has it done this year? The Committee delivered its interim report at Faculty Council in January (See Maud Rozee’s article in this issue for details. ).

What is planned for the rest of the year? The intersession is still very much in the planning stages. The earliest it will be rolled out is the 2017-2018 academic year. Questions and comments can be submitted to Assistant Dean Sara Faherty.

Matt Howe

ultravires.ca Truth & Reconciliation Committee Members: Douglas Sanderson & Mayo Moran (Chairs), Dillon Collett (SLS), Sinead Charbonneau (ASLA), Bruce Chapman, Kerry Ritich, “one administrative representative” Mandate: The TRC Committee was recently formed in response to the TRC’s Call to Action No. 28, which calls for all law schools in Canada to institute a mandatory course in Aboriginal peoples and Canadian law.

What has it done this year? So far, the TRC Committee has met to discuss how to implement this call to action. The SLS held a Town Hall meeting in January to consult students on the issue, and posted an online survey as well for students who were unable to attend.

What is planned for the rest of the year?

The Committee is in the process of sending out a Faculty survey, and Professor Sanderson will be conducting a consultation with the U of T Elders. The information from these consultations will ultimately be used in a report for Faculty Council that will discuss the nature of their deliberations, the content of their consultations, and their proposals for next steps.

Alex Redinger

NEWS/FEATURES

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Sky-high Tuition and Unpaid Student Labour RIAZ SAYANI-MULJI (2L) For last year’s Orientation Week, an administrator reached out to students to recruit facilitators for the 1L’s diversity and inclusivity training. When asked how much the student facilitators would be paid, the administrator replied: “The positions are volunteer and lunch will be provided following the session. […] If no students are available, Faculty of Law staff will be the facilitators.”

Oh, U of T Law. The law school will take you for almost $35,000 a year and then expect you to work for them for free. Considering that tuition has skyrocketed, accompanied by minimal growth in financial aid and practically non-existent back-end debt relief, there is something particularly insulting about the Faculty expecting us to engage in unpaid labour on their behalf.

And this isn’t the only example. We have law students writing news releases for the Faculty’s website for free. At the same time, Lucianna Ciccocioppo, the administrator responsible for “External Relations” including much of the Faculty’s web content, is paid $100,000 per year.

There is also the Faculty’s student ambassador program, in which students are not paid for the hours they put in recruiting prospective students.

(The University of Toronto’s own student tour guide program is a paid position.) When questioned about this, a Faculty administrator replied: “I’d like to think that students would enjoy adding themselves to the activities if they wish. […] If an ambassador couldn’t give a tour, the staff would

do it, as they normally would.”

I reached out to an employment lawyer, Andrew Langille (no relation to Professor Brian Langille), to get his opinion on how the Faculty was treating its student “volunteers.” Langille represents precarious, low-income workers in disputes against employers and the state. He is also General Counsel for the Canadian Intern Association.

RS: Let’s take the examples of the student ambassador and tour guide program, and the student facilitators for the diversity and inclusivity training. Would you say the Faculty is complying with employment standards in Ontario? Why or why not?

AL: First off, let’s delve into the law. The Employment Standards Act, 2000 (“the ESA”) sets a minimum floor of rights for employees in Ontario.

The key question in relation to the examples that you gave would be whether the activities of the students attracts the protection of the ESA or would it be considered a volunteer-type role falling outside the ESA. Neither the ESA, nor the associated regulations provides any guidance on the employee vs. volunteer, so one has to turn to the ESA Policy and Interpretation Manuel and the case law for guidance. One has to determine if a person is a “true volunteer”. The leading case is a decision from the 1980s called Re Consumer Liability Discharge Corporation where a recent graduate offered to work for free. Referee Davis looked at a number of factors such as conferring benefit,

whether the arrangement was in pursuit of a livelihood, and whether an economic imbalance was present in structuring the arrangement.

Second, I should state unequivocally that students should be receiving a wage when they’re working for or on behalf of a post-secondary institution. So for the example of the “student ambassadors/tour guides”, if U of T Law considered that to be work that would attract a wage for staff of the JD Admissions Office than the students should be paid as well. It strikes me that students here are doing critical work in “selling” the JD program to potential applicants, which is necessary work given that the JD program needs to constantly attract new students. This is a rather clear breach of the ESA and an example of employee misclassification. The “student facilitators” example is even more clear-cut for me.

RS: Outside of U of T Law, how common are these unpaid “learning opportunities”? Or workstudy programs”? Is this phenomenon of students engaging in work otherwise done by paid employees a recent one? If not, has it intensified?

AL:The University of Toronto runs off precarious and unpaid student labour. What has been created at the University of Toronto is a shadow workforce that labours in fairly precarious conditions for pay that minimal or non-existent. Let’s run through a couple quick examples.

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Viva Voce A series totally not inspired by Humans of New York, providing a glimpse into the lives and thoughts of students (and faculty) at the Faculty of Law. LISANA NITHIANANTHAN (3L)

Ten years from now I see myself being appointed to the Supreme Court after having returned from the first successful faster-than-light intergalactic journey. I never think specifically about where exactly I want to be and what exactly I want to have accomplished in ten years time. I just know I want it to be spectacular.

- Shaanzéh Ataullahjan (3L)

I feel like law school has brought out a really specific part of who I am. It's not something I talk about a lot, but I used to play water polo quite competitively. I used to play for the national team actually. And that environment brought out a fierce side of me that is really difficult to translate into the law school context. It's difficult to muscle your way through legal arguments [laughs]. You have to be a lot more…delicate.

- Hanna Gros (3L)

My greatest struggles are completely banal. […] Increasingly, I have to get my kids to help me with the technology. They think I’m old. I am old but I’m also addicted to my iPhone. It’s like I hand it to the teenager, who just rolls her eyes at me, you know thinks I’m the stupidest person in the world, and then she’ll do it in like two seconds. I used to go over to my parents’ house and the light on the VCR was always flashing and they couldn’t get rid of it so I would have to do that. And now that’s the way it is with my kids.

I can’t figure out some new music system. You know I finally figured out Songza and then Songza was SOLD and turned into Google Play and Spotify and I can’t fit it on my iPhone because I don’t have enough space on my iPhone. Anyways so, I think it’s a pre-millennial struggle to keep up with technology.

- Professor Brenda Cossman

Oh my favourite memory is actually the fact that we were in a Carnegie-built library. It was such a beautiful space. I think the students did love that reading room. Our office spaces, even though we had to share, were magnificent. The Chief Librarian’s office had a fireplace, an ensuite bathroom. It had a safe, although we couldn’t open it. I think it had been a bursar’s office. It was beautiful.

[On the new space.] I’m excited that we can bring all the books back. One thing I’m excited about is the student space. The information commons has been expanded. The reading room is grand. We have a dozen group study rooms—the previous building only had four.

[How long have you worked here?] Twenty-five years. I actually started as one of the first computer librarians in Canada. The PC had just started to take off. […] We had our own wireless before U of T did. We loaned out wireless cards to students because laptops didn’t come with them. We were quite innovative.

- Interim Chief Librarian Gian Medves

continued from p. 5 UNPAID LABOUR Consider the thousands of research projects in the various science faculties that rely on undergraduate and graduate students. These students typically aren’t covered under the ESA due to the presence of a statutory exclusion for post-secondary students performing labour as part of their academic program, yet are expected to put in fifty or sixty hours a week as part of their education.

The professors and the University of Toronto are benefiting hugely from the unpaid labour these students put in. It strikes me that this is a rather insidious form of employee misclassification and systemic discrimination. This sort of labour is completely off the books and entirely unacknowledged by the University of Toronto.

Work-integrated learning, which is the trade term describing workplace training for secondary and post-secondary students, is increasing across the system. It’s part of the commodification of education and a key aspect of how neoliberalism has supplanted traditional notions of what post-secondary education should be. Instead of engaging in learning as a social good or in furtherance of personal development, now post-secondary education needs to provide a student with measurable

skills and a set-career path. Work-integrated learning has really intensified over the past twenty odd years and worked its way into all types of programs. Work-integrated learning isn’t a necessarily bad thing I should add, the University of Waterloo has a wonderful cooperative education system integrated into a host of programs and has a long history of placing students into paid positions, but that co-op model really isn’t utilized across the system. In the last ten years we’ve really seen an explosion of intern culture globally and in particular in North America.

RS: How is this relevant, if at all, to the struggles of young workers outside of school to find paid employment?

Paid employment is hugely critical for young workers and recent graduates entering the labour market. A person’s life course can be sidetracked by prolonged periods of unpaid labour. Often young folks who fall into the unpaid labour trap have to delay critical life events like starting relationships, having children, getting married, and purchasing homes or automobiles. Forcing students, young workers, and recent graduates into taking unpaid labour degrades the overall labour market for all working by allowing employers to replace paid positions with unpaid ones and driving down wages. Aside from the employers bene-

fiting from unpaid labour, we all lose out.

The rise of unpaid labour has hit the legal profession rather hard as well. Many summer and articling positions are now being advertised as unpaid. Given the competitive labour market in the legal profession it’s now pretty much a necessity to engage in unpaid labour in some form to ensure that you remain competitive when it comes to hiring.

RS: What can law students do to challenge these unfair practices?

Well, students are increasingly pushing back against demands from employers and post-secondary institutions that they engage in unpaid labour. There’s now room to question such labour practices and ask for changes that could reduce the amount of unpaid labour that academic programs or courses require. If I was a law student today I certainly would be questioning the structure of the Law Practice Program and how it forces highly indebted young graduates into further debt and unpaid labour. There’s also the labour practices of firms, legal clinics, and legal non-profits which often ask students to work or for free or “volunteer” as a precursor to paid employment.

These types of arrangements have to be questioned and resisted as well.

RS: What legislative changes are needed to en-

sure young workers are paid for the work they engage in, both within and outside of school?

The Government of Ontario is currently engaged in the Changes Workplaces Review, which is aimed at updating the ESA and the Labour Relations Act. I’ve certainly advocated for the elimination of the statutory and policy exclusions under the ESA and the Workplace Safety and Insurance Act that deny students and young workers protections that are critical for their economic, mental, and physical well-being. The Ministry of Training, Colleges, and Universities (“MTCU”) and the Ministry of Labour (“MOL”) need to address the realities that young workers and students face via the rise of work-integrated learning and in the school-to-labour market transition. Right now there’s no leadership coming from the MTCU or the MOL when it comes to the very real exploitation that students and young workers face in the labour market. The Ontario College of Trades was set up, in part, to regulate apprenticeships in the trades, which are heavily male dominated. It’s clear to me that Ontario needs a similar body to regulate the school-to-labour market transition for professions outside of the trades. Right now students and young workers exist in a very precarious situation where their interests are not being well represented.

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Not So Trivial: Blue J Legal Harnesses IBM’s Watson for Tax Law ALEX REDINGER (2L) Ken Jennings, the Jeopardy! contestant with the longest winning streak in the television show’s history, famously lost to IBM’s Watson computer system in 2011. He described the machine’s method for answering questions like so: “[It] zeroes in on key words…then combs its memory (in Watson's case, a 15-terabyte data bank of human knowledge) for clusters of associations with those words. It rigorously checks the top hits against all the contextual information it can muster…[and] when it feels “sure” enough, it decides to [answer].”

This process might seem similar to the fundamentals of legal research: Professor Benjamin Alarie evidently thought so. Alarie was first exposed to Watson by participating in the vetting process for U of T’s submission in an IBM computer science competition meant to explore potential commercial applications for the computer system. According to Alarie, “[his] thinking was that if Watson can beat the best human champs at Jeopardy! [then] perhaps it can be hammered into a tool that can help with tax law.”

Alarie founded Blue J Legal, which is jointly owned by himself and his fellow co-founders: Professor Anthony Niblett, Professor Albert Yoon, and former IBM employee Brett Janssen (U of T retains a minority non-voting interest, and Blue J is a client of IBM). Blue J Legal has also received assistance from JD/ MBA students participating in the Creative Destructive Lab at the Rotman School of Management, including Claudia Dzierbicki, Joe McGrade, and Chad Cogar. The team at Blue J is developing a tool which uses Watson

to answer tax law questions. Incidentally Watson is not the only Jeopardy! winner at Blue J Legal, since Niblett has also won on the television show.

Blue J Legal intends to use Watson “to provide an independent complement to the professional judgment of tax accountants and lawyers.” As Alarie explained to me, “Blue J is a tool that is best used (for now) by professionals who know what they don't know and understand the context in which the tax questions arise. The results are best for tax professionals who can interpret and apply the results. An analogy might be to medical testing, where lab results get sent to your medical professional for interpretation and advice.”

Thus Blue J will function as a tool for tax accountants “not good at grappling with the gray areas in law,” and will be “totally complementary to lawyers” (Alarie foresees its use for questions which it is “not practical to retain a lawyer for”).

Tax professionals who input searches into Blue J will have their inquiries positioned with the “cloud of questions” answered by the law.

The example he provided for me was for tax law questions related to Uber – a Blue J search on the topic would presumably yield analogous answers as determined for taxis. In these gray areas of law, Blue J thus “can help [tax professionals] see why there is disagreement on an issue, and investigate further, [facilitating] conversations for settling disputes.” As Alarie explained, Blue J is mutually beneficial for taxpayers to “plan with a view to complying” and for the government to “avoid overstepping,” hence expediting dispute resolu-

tion, “[making tax] law more predictable and reliable” and resulting in a “more effective tax system.”

Currently, Blue J is undergoing beta tests with three of the Big Four accounting firms, and training its system to handle the following legal issues: “(1) the distinction between workers who are employees and those who are independent contractors; (2) the classification of individuals as residents or non-residents for tax purposes; (3) the distinction between transactions yielding capital gains and income; and (4) the distinction between capital expenditures and current expenses.” However, Alarie does not envision this capacity as Blue J’s endpoint. He anticipates “[definitely] expanding beyond tax eventually,” and “[building] out the capacity to address many more issues in the future,” remaining “responsive to [their] users’ needs.”

The immense potential of Blue J to increase the capacity of individuals to perform legal research, in conjunction with comparable developments in the legal industry, might bring an attendant concern about the risk of job loss.

When I raised this issue with Alarie, he responded that “[he sees] technology as being very positive for access to justice and as complementing rather than substituting for lawyers […] [allowing] lawyers to spend more time on more difficult issues since [the] facilitating technologies will bring more clarity to the law.” Evidence seems to support this position: for instance, The Atlantic reported last month that while electronic software for legal discovery has become a multibillion dollar business since the late 1990s, the US job mar-

ket for paralegals and legal assistants has still grown faster than the labour market there as a whole. The rationale for this counterintuitive trend is that as the cost for legal services decreases, more prospective clients can afford legal services and judges can allow more expansive discovery requests.

The legal profession has struggled with providing adequate access to justice, so much so that Justice Karakatsanis, in the 2014 Supreme Court decision for Hryniak v Mauldin, described it as the “greatest challenge to the rule of law in Canada today.” Therefore, tools such as Blue J could prove instrumental to ultimately broadening the availability of legal services. Alarie also mentioned to me that Blue J Legal is itself hiring between 5-8 law students for the summer – he emphasized that it is a “privilege” to hire from among our ranks, indicating that it is “mutually beneficial” as the hired students will be “working with three law professors on something very practical, but still legal research.” By way of comparison, the Bay Street firms with the most 1L summer students in 2015 hired 4-5 U of T 1Ls (depending on whether you include JD/MBA students), and 9 1Ls overall from all law schools. Ultimately, the erosion of traditional legal employment reduces certainty but also creates new opportunities, and Blue J Legal is a promising manifestation of this dynamic.

Does OSAP Discriminate Against Muslim Students?

GEETHA PHILIPUPILLAI (2L) While the legal profession has acknowledged the need to foster diversity, targeted barriers preventing Muslim students from accessing government student loan schemes have largely flown under the radar. By requiring interest payments, Ontario’s Student Assistance Program (OSAP) forces some Muslim students to either compromise their beliefs, seek out private and community funders, or forego expensive post-secondary programs.

Without purporting to explain Islamic interpretations of loans and whether avoiding interest-based loans is required by religious authority, I will discuss why some Muslims have a sincerely held religious belief that such loans are proscribed. Legally, the Amselem test for freedom of religion sets out a ‘sincerely-held religious belief’ as more constitutionally appropriate when examining state-infringing action than engaging in an assessment of the correctness of a religious interpretation or a particular doctrinal teaching.

Sincere belief that one should not give or

take interest-based loans comes from traditional interpretations of Islamic law where interest is considered usurious and exploitative.

Since interest benefits the lender at the expense of the borrower, interpretations of Islamic law consider it an unacceptable mode of profit. The lender’s wealth increases as the borrower sinks farther and farther into debt.

By eliminating interest, Islamic financing seeks to ensure that the borrower does not entirely shoulder the risk of the loan. Thus, Islamic financing products are structured cooperatively to ensure that risk is shared between borrowers and lenders such that they share in profits as well as losses.

Modern legal opinions do allow Muslims living in Western countries to take interestbearing loans such as mortgages to purchase houses and finance education; however, these opinions are can be contingent upon necessity or dire circumstances. Thus, although many Canadian Muslims do take interest-bearing loans, the purpose for which one accepts the

loan is still significant and subjective. Further, one may accept a loan and still feel discomfort about compromising spiritual and ethical principles.

Currently, no Canadian jurisdiction offers a Sharia-friendly student loan scheme. In Ontario, interest begins to accrue on OSAP loans six months after graduation. On the provincial part of an OSAP loan the interest rate is the prime rate of interest plus 1%, and on the federal portion it is prime plus 2.5%. Repayment of OSAP loans is not tied to inflation, or post-graduation income, although loan-repayment relief is available.

As post-secondary tuition skyrockets the need for accessible government assistance takes on increasing importance. The UK government is currently implementing a Sharia friendly scheme following its 2012 decision to being charging interest on student loans which were previously only tied to inflation. The new UK scheme is based on the ‘Takaful’ model,

and came following consultations with students and religious communities. Under a ‘Takaful’ structure groups of people cooperate by making a contribution to a fund and then repay the fund following graduation when they are employed and earning above a certain threshold.

In the UK context there was evidence that rising tuition rates and therefore the increasing importance of government loans to students in accessing education has prevented prospective Muslim students from pursuing higher education. Alternatively, students reported limiting their choices of educational institutions or particular programs to what they could save up for and afford without having to take an interest-bearing loan.

While there may not be specific statistical evidence on the impact of interest on Muslim students’ ability to access post-secondary edu-

continued on p. 8

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continued from page 7 DOES OSAP DISCRIMINATE cation in Canada, anecdotal evidence suggests similar concerns exist here as in the UK. Zachary Al-Khatib is a 2L who will be clerking at the Alberta Court of Appeal following graduation. He says he almost did not come to the University of Toronto, since he was unwilling to take a student loan to finance his education. For Zachary signing a student loan agreement that involved agreeing to pay interest was simply not an option, because he felt that doing so would compromise his religious convictions. Although he would take an interest-bearing loan in a situation of necessity, he did not consider attending U of T such a case, since he could have gone to a school with lower tuition. Although he did end up attending here after he found a Muslim financing organization that agreed to give him a shariah-compliant loan, he noted that other stu-

dents haven’t been successful. He also noted that taking a private loan (which was limited to the difference between his financial aid assessment and total tuition) precluded him from some opportunities, such as doing an IHRP placement or going on exchange.

If the traditional means of financing an education preclude Muslim students from attending, or force a compromise between pursuing a legal career and one’s sincerely held spiritual beliefs they are discriminatory to the extent that they widen the gap between Muslim communities and the rest of society. On a constitutional analysis, the question of whether such a limit can be justified in a free and democratic society may finally uphold the government’s one-size-fits-all interest-based loan schemes. However, if the UK government’s attempt at offering a Sharia-compliant scheme successful we will have an example of a more minimally impairing option.

Ultimately, students should not have to sac-

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rifice their religious beliefs in order to finance their post-secondary education. Just as community groups have stepped up to assist students like Zachary in attaining legal education without being forced to compromise their spiritual beliefs, the legal profession, including this law school should consider playing a role in offering alternative loan-schemes to Muslim students, or in urging the government to consider alternatives that would allow for equal access to the government service. The full and free participation of a historically underrepresented group in the legal profession may be at stake.

Better Know a Court: The Ontario Municipal Board JUSTIN KHORANA-MEDEIROS (1L) The Ontario Municipal Board (OMB) is an independent tribunal operating under provincial legislation. Its mandate covers the majority of appeals arising under the Planning Act, including appeals regarding official plans; zoning by-laws; subdivision plans; ward boundary disputes; development charges; consents; minor variances; and compensation claims under the Expropriations Act. The OMB in Theory and Practice The Board provides private actors with dispute resolution that is less formal, costly, and time-consuming than the courts. It bases its decisions on evidence adduced at hearings, the relevant law, provincial polices, and principles of good planning.

Before hearings, the OMB attempts to resolve issues through mediation. If this fails, it holds a public hearing at that is adversarial in nature, featuring examinations and cross-examinations, and an evidence-based outcome—much like civil trials.

Most decisions can be appealed to the Divisional Court within 15 days of delivery, solely on the basis of an error in law (not policy). Appellate courts rarely rule on OMB decisions, making them the de facto final say on the majority of provincial development matters.

Lawyers, mediators, planners, and individuals with experience in municipal and federal government currently comprise most of the board. Members are appointed by the province, which also designates one member as Chair and may designate one or more ViceChairs.

Cracks in the Architecture For critics like Toronto city councillor Josh Matlow, the OMB is “an anti-democratic, unelected, unaccountable body that has the last say on…planning matters in…Ontario”— a sentiment echoed by countless municipal councillors, MPPs, and residents’ associations across the province over the past few decades.

The Ontario NDP makes annual attempts to reform or abolish the OMB, and the City of Toronto officially asked to be removed from the OMB’s jurisdiction in 2012.

Other criticisms centre on issues of localism. The abolitionist movement decries unelected provincial bureaucrats overriding local consensus-driven plans in favour of commercial developers. Abolitionists cite with ire the principle that OMB only owes municipalities “minimal deference,” a Divisional Court ruling routinely invoked to set aside locally-formulated plans. They would have municipalities establish their own appeals bodies.

Another problem is access to justice. Former Toronto-area MPP and provincial cabinet minister Rosario Marchese claims “The adversarial OMB process pits cash-strapped residents and overworked city planners against deep-pocketed developers.” Critics suggest the OMB creates perverse incentives: knowing they can outspend community groups and municipalities, developers will bypass negotiations with those groups and simply file an appeal once challenged on a proposed development (figuring they can get a more optimal outcome.) Before that point, developers have often already paid for planning and traffic studies, environmental reports, legal opinions, and so forth, while community groups scramble to fund a commensurate response.

Even non-abolitionists would like to see OMB power curtailed. Frequent requests include stripping the OMB of its power to override local zoning decisions; lengthening the time period respondents have to gather evidence and hire experts; and having planning experts appointed to community groups.

Unfairly Vilified?

Community groups are not always on side with municipalities or local councillors against developers. Councillors and municipal government officials are sometimes influenced by potential tax revenue from large-scale developments. Conversely, neighbourhood groups are sometimes motivated primarily by protecting their real estate values, leading to bias for the status quo. This can sit in conflict with a long term view that serves the needs of the municipality as a whole.

Vote-conscious councillors often attempt to block developments when even tiny resident associations in their wards start making noise,

notwithstanding the appropriateness of the project or the benefits that might accrue to the neighbourhood or the municipality overall. So while OMB might be a judicial body, conflicts brought before it are often fraught with complex political issues, which inevitably produce winners and losers.

There are also empirical questions. While a study into1990s Board results revealed clear bias in favour of development, recent studies suggest developers do not win overwhelmingly. Scholarly analysis suggests that the OMB’s settlement and mediation function has been underemphasized and, statistically speaking, community groups and municipalities do as well as developers when they retain their own planning experts. Former Munk School visiting professor Dr. Aaron Moore argues that if the OMB has a bias, it overwhelmingly favours planning expertise. The Ontario Bar Association concludes that the Board is “the best means we have of balancing competing public interest while maintaining government efficiency and the rule of law.”

Recent High Profile Cases: Antrim Truck Centre Ltd. v. Ontario (Transportation) [2013 SCR 594] demonstrated a less commonly-discussed prerogative of the OMB: its ability to compensate an aggrieved party rather than outright deny or grant a development application. In Antrim, it awarded damages of $393,000 to a small business whose profits were severely impacted by a provincial construction project. The Supreme Court upheld this, ruling that while everyone must put up with some "give and take" for the greater good, disproportionately-burdened individuals ought to be compensated. The SCC provided a “reasonableness” analysis for use in future OMB disputes of this nature to balance competing public and private interests.

One particularly controversial decision was Activa Holdings Inc. v. Waterloo (Regional Municipality) [2014, PL130026], wherein the OMB cited “minimal deference” to justify overruling the Waterloo Regional Growth Plan. The Waterloo Region’s official plan to curb urban sprawl in favour of downtown density arose from a decade of consultation with

planners, communities, and developers. Per University of Waterloo planning professor Jeff Casello, the developers’ projection of housing demand was found to be more credible than the Region’s, and thus “the entire intention of the official plan was reversed by the OMB.” The ruling opened up almost ten times more land for development; some suggest it even contravenes the province’s own Places to Grow Act. Recent Reforms Premiere Kathleen Wynne promulgated a review of the Ontario Municipal Board in her mandate letter to the Honourable Ted McMeekin, Minister of Municipal Affairs and Housing. The letter emphasized “citizen input” during early stages of land-use planning as well as respect for local official plans and decision-making, but also emphasized “growth-related revenue.” The result was last year’s Smart Growth for Our Communities Act—limiting the power to appeal official plans and reducing the types of appeals that can be made to the OMB. Where to Learn More You can learn more about it the OMB by visiting its website (www.ccboard.on.ca), which has a considerable amount of information the Board’s mandate, practices, and decisions. You can also find reported decisions on CanLII, as well as on the Board’s website two business days after they are issued on the EDecisions section of the site.

OMB hearings are open to the public. If you would like to attend, the best way to arrange it is to contact the Board by phone at (416) 212-6349 or email (ontario.municipal. board@ontario.ca) to explain your interest and request the times and locations of upcoming hearings.

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The Gastronomic Plight of the Law Student SCOTT DALLEN (1L) As the most recent refugees of the administrative pandemic that is university construction, we law students have been cast out into U of T’s East Campus—a cold, unforgiving culinary desert that makes the Siberian tundra feel like the food fair at the Canadian National Exhibition.

The diasporic law community, graciously sheltered by Victoria College, has turned overwhelmingly to Ned’s Café to sustain its samosa fueled stress-eating habit. Tenuous at the best of times, this relationship is often strained further by the irritable glances of undergraduate students unable to find a table amongst the swathes of law students prepping for trial advocacy and upper-year moots.

Recently, many law students have faced adversity and hardship due to the widening undergraduate-law divide. Several students attending the fabled “Free Soup Thursday” were told—in the spirit of a certain ladlewielding canonical fascist—that there would be no soup for law students. Even more recently, sympathizers rallied behind a 1L student who was asked to pay $0.55 for a glass of hot water at Ned’s Café, an unprecedented event formally known as the Hot-Watergate Scandal.

Not to be disheartened, law students have learned to adapt to our unfavourable gastronomic landscape. We learned that the Tim Hortons on Bay St is 25 metres closer than the Tim Hortons on Bedford Road. We learned that Reese’s Peanut Butter Cups are $0.27 cheaper in the vending machines than they are in Ned’s Café.

And we learned that the minimum amount of time one must stay at a lunchtime panel in order to justify the free food is precisely 18 minutes.

We learned these things because food and snacks are an essential aspect of life at U of T Law—a fundamental unifying feature of a student culture pulled apart by the bell-curve, competitive moots and Bay St recruitment.

So when the administration announced that the new Jackman Law Building would

house some sort of culinary institution, a fever of nervous apprehension swept across the student body. Some joined the Food Advisory Committee and constructively contributed to an informed process. Others desperately speculated that the new building would feature the first “In N’ Out Burger” franchise outside of Southern California.

(Okay, maybe that was just me). One representative even claimed that the administrat ion had considered buying into the popular Cat Café trend before quickly realizing that no work would be done at the law school ever again.

In the end, the Advisory Committee’s decision represents perhaps the best option that could reasonably be expected. The first floor of the Jackman building will feature a small

university-run café catered by the kitchens at 89 Chestnut Street, similar to the Green Beet at Gerstein Library. The café will focus on healthy foods, vegetarian options and affordability, and it will feature coffee from local (and possibly rotating) roasteries.

One is left to wonder why, if students’ needs have truly been taken into account, we have not been provided with a heavily subsidized brew-pub that serves an eclectic mix of gourmet poutine and Guy Fieri signature dishes.

Still, the administration’s plan seems to be a suitable compromise.

On Diversity: Thank Goodness It’s…Monday?

NABILA PIRANI (3L) At the last Faculty Council meeting, Associate Dean Kerry Rittich introduced the sessional dates for the 2016-2017 school year.

Like this academic year, classes will be scheduled on a number of Fridays—these Fridays will be “deemed” to be Mondays, Wednesdays, and so forth, for class schedules. Associate Dean Rittich noted that the deemed days exist to accommodate on-campus interviews (OCIs), public holidays (such as Thanksgiving), and Jewish holidays. It is official U of T Law policy “to cancel classes on the first day of Rosh Hashanah and on Yom Kippur.” The policy “makes no special provision for other Holy Days.”

Having been at the law school for almost three years now, I still have not wrapped my head around this deemed days thing, especially the ones for religious reasons.

U of T Law’s religious accommodations policy treats students wishing to celebrate religious holidays not accommodated by deemed days the same as those who skip class because they are too lazy to get out of bed. The accommodations policy merely allows affected students to “request permission” for a classmate to record the lecture, with no guarantees that it will be granted. Essentially, this creates an unequal system in which the religious practices of some are accommodated by the rescheduling of classes, and those of others are accommodated (maybe) by class recordings or

by notes from friends.

As an added barrier, permission for class recordings must be requested at least one week in advance. For certain religious groups, the one-week requirement is impossible to comply with. Hands up if you belong to a community in which you do not know the actual date for your holiday until the night before.

The universities I attended prior to law school—one in Canada, the other in the USA—did not have deemed days. The University of Toronto does not have them for its undergraduate and graduate programs. The schools our administration continuously compares us to—Harvard, Yale, Stanford—do not have them either.

Perhaps most importantly, in 2008, an Ontario Human Rights Commission investigation found that York University’s deemed days policy of cancelling classes on Jewish holidays resulted in “differential treatment on the basis of creed” in contravention of the Ontario Human Rights Code. York no longer has deemed days for religious reasons. Our school, as far as I can tell, seems to be the last public postsecondary institution in Canada to persist with deemed days for religious reasons.

Don’t get me wrong. Of course Jewish peoples should get robust accommodations for religious observances. Legally and morally, they must. I cannot emphasize that enough. I only wonder why peoples of other faiths and cul-

tures do not get accorded the same standard of accommodations.

So, what’s the solution?

The idealist in me says, deemed days for all!

Wouldn’t it be great if we got Rosh Hashanah, and Chinese New Year (happy year of the monkey, by the way), and Eid ul-Fitr, and Easter Monday off ? Yes, it would mean a lot of forsaken Fridays, but hey, our Admin could really call us “diverse” then!

Sadly, that is probably not practicable.

If the goal is equal treatment for all in a manner that is implementable, there is really only one solution: no more deemed days for religious reasons, and a robust accommodations policy that actually works.

Post-Script: A group of students has been thinking about religious accommodations policies at the law school – the way they work, the way they don’t work, what to do about them. If we haven’t yet had a chance to speak with you and/or you have something to contribute to the conversation, send us a note at deemed. days@gmail.com.

10 | FEBRUARY 24, 2016

OPINIONS

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Thinking On ISIS: A Reflection On A Reflection RAMZ AZIZ (1L) On February 11, Professor Anver Emon hosted a student-organised event titled “Thinking On ISIS: A Public Forum. ISIS (or ISIL or Da’esh) has become the defining threat of the decade around which unlikely allies have started to cooperate—poverty, housing, sanitation, education, and health care be damned. ISIS has, in Trump-like fashion, consistently made headlines for years thanks to their asinine acts and statements, occupying a hefty portion of the media’s attention and remaining at the forefront of public consciousness. Amazingly, ISIS’ horrific machinations have had far-reaching effects on Canadian domestic policies and administrative practices as well.

For example, in 2013, a government-funded organization in Nova Scotia decided to change its name from Immigrant Settlement and Integration Services (ISIS) to Immigrant Services Association of Nova Scotia (ISANS).

Immigrants and refugees attempting to flee the clutches of ISIS were traumatized by requiring ISIS’s help to settle in Nova Scotia. A billboard outside Halifax airport stating “New to Nova Scotia? Call ISIS!” was poorly received and did not help matters.

Most troublingly, ISIS’s deplorable deeds

have painted a perverse misrepresentation of Arabs, Muslims, and Islam itself. Stories about radicalization have fuelled mistrust and alienation of Muslims in Western societies, as people try to understand exactly “what the hell is going on.”

Canadian perception and sentiment towards Muslims has also been affected, with a marked increase in anti-Muslim and anti-Arab hate crimes. Attacks on hijab-wearing Muslim women have become more frequent in both Ontario and Quebec. The recent influx of Syrian refugees has sparked a debate over the security risk posed by Muslims, creating a xenophobic climate and discourse.

We at law school are no exception. While, to my knowledge, no blatant discriminatory act has taken place, micro-oppressive comments, jokes and general statements are commonplace. Recently, some students overheard a conversation debating the authenticity of a movie villain who was not brown; a white terrorist was considered implausible in this day and age. Like most other minority groups, Muslims, Arabs, Persians, and South Asians often find themselves answerable without having any affiliation or knowledge of the issue greater than an average Caucasian Canadian.

Hence, a discussion around ISIS seemed necessary in this climate to provide a space for students to express their latent concerns and fears. The room was packed with 80-90 attendees, consisting of the simply curious and the keenly opinionated. Bravely, armed with a coffee cup and an extensive background in Pluralism, religion and Middle Eastern law and governance, Professor Anver Emon tackled every question—both impromptu or submitted in advance.

The questions were diverse, pertaining to Syrian refugees, to ISIS, to Islam in Muslimmajority countries. Questions of note explored the perceptions of the LGBTQ community amongst Syrian refugees, whether the straw man of Muslim terrorism was representative of Muslim academic and philosophical thought, and the affinity for secularism in Muslim-majority countries.

But what, you say, was the point of all this?

At the very least, the climate of xenophobia, Islamophobia, and divisiveness demanded a venue for the healthy exchange of opinions and rational discourse.

The talk brought attention to aspects of the discourse around ISIS that are not readily considered. Professor Emon answered ques-

tions as best he could, reframing each issue and illustrating an intersected, academic perspective that pointed out inherent assumptions at play. Regardless of the directness or simplicity of any question, it was apparent that there were underlying socioeconomic, geopolitical, cultural, and religious elements that complicated each answer. A question asked about the diversity of opinions in the Muslim world regarding ISIS’ actions solicited a response that highlighted both the lack of human theological authority in Islam, the differences of epistemological practices in Muslim academy, and the role of external intellectual entities in Muslim political discourse.

Many left the event with more questions than answers. But that is to be expected in a forum involving a complex issue with unfathomable dimensions. Perhaps in ten to twenty years, we can reflect on this zeitgeist and, through the benefit of hindsight, understand why the answers were not as simple as we had hoped them to be.

New First-Year Course Aims to Right Legal Writing Wrongs NICK PAPAGEORGE (1L) Last month, our Editor-in-chief put out a call to first-years: “Just take it easy, man.”

First-years undoubtedly replied: “We’re perfectly calm, Dude. Calmer than you are.”

Then a group of first-years—myself included—set out to show just how calm we are by giving up the first of what will soon be four Friday mornings to participate in a new, optional legal writing class.

The class was first advertised to us last December. Given the opportunity for more legal writing in the wake of Legal Research and Writing (LRW), 1Ls stayed true to form. “Way more” signed up for the class than the 25 it was designed for. At least, this is what I was told by Assistant Dean Sara Faherty, though I can attest to the fact there have not been 25 students in any of the first three classes.

You might be wondering what the purpose of this class is, especially since the tedium of LRW is already mandatory for first-years. According to Professor Katherine Vitale Lopez, who designed and volunteered to teach the course, it aims to give student “an opportunity to delve into the mechanics of good writing, to

identify some common impediments to clarity, and to brush up on grammar and sentence structure.” This style-centric approach distinguishes the course from LRW and its focus on format.

For me, it was this distinction alone that made the class appealing and has made it worthwhile. LRW seemed to equip me and many other students with a set of writing skills so particular that they have no practical value.

I came out of LRW feeling semi-confident that I could write an unrealistically constrained memo for one specific person; anything beyond that would be uncharted waters.

By contrast, this new writing course has already lived up to Professor Lopez’s goal of helping us “develop a systematic approach to editing and writing that [we] can take with [us] through law school and into practice.” It has certainly helped me identify areas of my own writing that are most likely to become bogged down by a lack of clarity, and has importantly offered some common-sense fixes for this problem.

Where LRW insisted upon writing skills

that many will find difficult to make use of beyond that class itself, this new course has given its participants tips and strategies that will be useful in most any law class or legal writing scenario. This is true because its emphasis is on good writing itself rather than the potential context or format that that writing will fit into.

Other members of the class seemed to echo this sentiment. One member noted that the class seems just like LRW, “but better.” Another felt this type of class was necessary because writing skills are something that require continual work and brushing up on. I tend to agree, and hope the administration sees fit to offer this course again next year as well as open it up to a greater number of 1Ls—at a more agreeable time of the day.

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SPECIAL FEATURE

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Rights Review Student Publication of the International Human Rights Program at the University of Toronto's Faculty of Law Co-Editors: Katie Bresner and Jordan Stone

THREE ISSUES A NATIONAL INQUIRY INTO MISSING AND MURDERED INDIGENOUS WOMEN MUST ADDRESS Lara Koerner Yeo (2L)

Several important issues must be addressed if the inquiry is able to investigate the full scope of the crisis: the human rights framework; what national means in the context of this inquiry; as well as Indigenous women's leadership and the capacity for non-Indigenous Canadians to engage in the inquiry process.

The human rights framework In 2015, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW or “the Committee”) and the Inter-American Commission on Human Rights (IACHR) released groundbreaking reports on the situation of missing and murdered Indigenous women in Canada. CEDAW found Canada to be in violation of the UN Convention on the Elimination of all forms of Discrimination against Women. The IACHR report, similarly, found that Canada is legally required to improve its response to the violence, pursuant to its obligations under the Charter of the Organization of American States and the American Declaration of the Rights and Duties of Man. The reports illustrate how the impairment of Indigenous women's economic and social rights makes them vulnerable to violations of basic civil and political rights, such as the right to life and security of person. Both reports also make findings on the root causes of the systemic discrimination perpetuating Indigenous women’s and girls’ disproportionately high vulnerability to violence in Canada.

For example, Canada's colonial history, including the dispossession of Indigenous lands, the legacy of residential schools, ongoing sex-discrimination in the Indian Act, and women's and girls' socio-economic marginalization, are found to be root causes of violence that must be addressed.

The reports underscore the high rates of violence perpetrated against Indigenous women and girls. While data on the full scope of the issue is lacking, publicly available data indicates that Indigenous women and girls are three times more likely to be subjected to violent victimization than their non-Indigenous counterparts.

These reports provide a human rights framework from which a national inquiry can, and must, build. The reports provide both a blueprint for how the violence can be understood in universal human rights terms and a

fundamental starting place for the national inquiry.

What national actually means Indigenous advocates and their allies have persistently called for a national inquiry. Advocates have been clear in framing the inquiry as national in scope, not only federal in scope, precisely because a federal inquiry that is confined to matters under federal jurisdiction, lacking cooperation agreements with the provinces and territories, would miss the multi-jurisdictional nuance of the systemic violence.

Government and policing failures are multifaceted across federal, provincial, and territorial jurisdictions. The federal, provincial and territorial response to the issue thus far has

and again.

A national inquiry must involve federal cooperation with provincial and territorial governments, as well as investigation into police forces and oversight bodies across Canadian jurisdictions. The inquiry, a creature of the federal Inquiries Act, will have the authority to investigate RCMP and civilian oversight of the RCMP; however, it will need to seek the cooperation of the provinces and territories to review provincial, municipal and auxiliary police forces.

If the inquiry is to come close to addressing the root causes of the violence and the particular role of police, as perpetrators and law enforcers, it must have the provinces and territories on side. Anything less would almost certainly lead to an ineffective outcome.

Indigenous women's leadership and engaging non-Indigenous Canadians

RCMP statistics on homicide victimization of Aboriginal women compared to non-Aboriginal women (source: RCMP Revised Homicide Survey Dataset)

been piecemeal and overly siloed. This falls drastically short of a coordinated law, policy and programmatic response by Canadian governments and police forces to the crisis of violence and its underlying causes—the type of response that has been recommended to Canada by expert human rights bodies time

The national inquiry should be led by Indigenous women. Indigenous women and girls must always remain at the center of the inquiry. The focus on Indigenous women should be supported by a public education campaign that engages non-Indigenous Canadians and indicates how this inquiry is relevant to them. Approximately 95% of Canadians do not identify as Indigenous. Many Canadians will likely, if they haven't already, learn about the inquiry and quickly decide that it doesn't impact or implicate them in any real, substantial way. The inquiry must challenge this notion.

Public inquiries have an important social function. This function includes engaging the public beyond the affected group and creating ways for the general public to identify with and acknowledge the harm done unto the affected group. A public education and media campaign serves this important function. It

can impress upon non-Indigenous Canadians their particular role and responsibilities, as settler people, in the inquiry process. The inquiry should challenge non-Indigenous Canadians to check their assumptions, stereotypes, and actions that perpetuate, directly or indirectly, the very social, economic, and political conditions that have rendered Indigenous women so susceptible to violence.

An inquiry that challenges non-Indigenous Canadians to think about their role and responsibilities will help foster social accountability and political will. Cultivating this sense of accountability will encourage non-Indigenous Canadians to act on the inquiry's recommendations in reconciliation with Indigenous peoples – this is something we should all want.

The long-term goal is the implementation of a coordinated national action plan that builds on the findings and recommendations of the inquiry.

We cannot lose sight of this goal as we set out to ensure the inquiry itself is equipped to get us there.

Lara currently works with the Canadian Feminist Alliance for International Action and was a research assistant in the Women's Rights Division of Human Rights Watch.

Ottawa's decision to launch an inquiry into missing and murdered Indigenous women and girls is a crucial step in addressing the situation of violence perpetrated against Indigenous women and girls in Canada today; one that will hopefully move the federal government, provinces, territories and Indigenous nations into negotiations on a comprehensive, cross-jurisdiction national action plan.

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THE YEZIDI GENOCIDE: IN SEARCH OF A SENSE OF DIRECTION Hanna Gros (3L) “I looked up at the sky, and I said, ‘Mom! five sisters, her brother, her uncles, cousins, They have stars here, too!’” Dalal’s eyes were and friends are among the thousands of Yezishining as she recounted to me her first ob- dis scattered in displaced-persons camps servation about her new home. Dalal and I sat and refugee camps across Iraq, Syria and in a café in London, Ontario, reflecting about Turkey. our experiences becoming new Canadians as A comprehensive report by the Simon-Skteenagers. We chatted about becoming jodt Centre for the Prevention of Genocide adults despite wanting to hold on to some of found strong evidence that suggests the onour child-like ways. But I quickly realized that going atrocities waged by ISIS against YeziDalal was forced to grow up long before she dis in Iraq have amounted to an act of genohad the chance to revel in her childhood. cide. According to the Genocide Convention, Dalal arrived in Canada with her parents genocide is legally satisfied by any of the five and siblings on a winter night in 2000. “We enumerated acts that are “committed with inalways thought of Canada as heaven on earth, tent to destroy, in whole or in part, a national, but it felt so far away.” Although she had ethnic, racial or religious group, as such.” stared at these same stars in the Syrian refuDespite international efforts, ISIS contingee camp where she spent her childhood, ues to enslave women and girls who were Canada felt like a different world.

Dalal was born in a small Yezidi community in northern Iraq. Yezidis practice an ancient monotheistic religion and have been violently persecuted in the Middle East for centuries. Dalal’s family fled on foot to Syria during the first Gulf War in 1991. The decision was made on a moment’s notice, and they had to leave six of Dalal’s siblings behind because they happened to be away from the house at the time. After surviving several skirmishes with Iraqi forces, the family arrived at a Syrian refugee camp, where they lived for nearly a decade with about 1,000 other A Yezidi girl after heavy rain at the Arbat camp for displaced persons outside Yezidis.

Sulaimaniya, northern Iraq. Thousands of Yezidis live in difficult conditions across Iraqi Kurdistan after fleeing ISIS. (Photo credit: Samer Muscati/Human Rights Watch) “We adjusted, we didn’t know any better. We built our homes out of rocks and kidnapped in the August 2014 attacks and mud.” The camp was surrounded by less- subsequent occupation. The Simon-Skjodt than-welcoming Syrian towns, and guarded Centre report found evidence of “rape, sexual

by Syrian officers who seemed unsympathet- slavery, [and] enslavement … perpetrated in ic to the refugees. The trip to the nearby Syr- a widespread and systematic manner that inian school was particularly dangerous, Dalal dicated a deliberate plan to target [Yezidis]”. told me. “Nothing was promised, nothing was Human Rights Watch also documented “a routine; we just had to take care of ourselves. system of organized rape and sexual assault, My father would tell us, ‘we are not going to sexual slavery, and forced marriage by ISIS starve here waiting. We are going to have a forces.” A formal determination of genocide better life in a different country.’” requires careful consideration of robust evi“And he followed through on his promise,” dence in a court of law. However, the InternaDalal said, nodding proudly. Integrating into tional Criminal Tribunals in the former YugoCanadian society was challenging, but Dalal slavia and Rwanda repeatedly found and her siblings took pleasure in the novelty widespread and systemic sexual violence to of bouncy beds and warm running water, the constitute genocide. Subsequent developnovelty of the “freedom to pursue dreams,” ments in international law (namely, through and the simple “feeling that it’s okay to be- the International Criminal Court) have recoglieve what you believe.” nized a trend in international conflicts in us“If it wasn’t for my parents’ perseverance ing “women’s bodies as the battlefield in a through all those struggles, I would probably calculated and concerted effort to harm the be in that genocide right now.” In August whole community through physical, mental, 2014, ISIS waged a series of attacks against and sexual violence inflicted on the women Yezidis in Northern Iraq, and they continue to and girls, the bearers of future generations.” occupy significant parts of the region. Dalal’s Over the past year, some women and girls

blunt tool at best. Where prevention of genocide has failed, the Convention seems to focus on State Parties’ responsibility to punish perpetrators, rather than a responsibility to rehabilitate the communities in crisis. Arguably, refugee law could be used to remedy this failure to some extent. But even where Yezidis managed to flee their homes in time, prolonged displacement in refugee camps and unwelcoming communities threatens the preservation of their religious and cultural identity. The UNHCR prioritizes resettlement of refugees who are deemed to be most vulnerable and refers these individuals to receiving countries (such as Canada), who apply their respective priorities in making selections. This translates into immense delay and uncertainty for refugees. Dalal told me that “the UNHCR scheduled interview dates for some of [her] relatives in 2024! And this is only a preliminary step in the resettlement process.”

Particularly when it comes to the most egregious of crimes, there should be a more coherent approach for helping survivors. In the context of an ongoing genocide, could the existential threat to the collective translate into an added layer of vulnerability for individual claimants, such that survivors of genocide would be prioritized for resettlement over those who suffer other vulnerabilities? This must be considThe Khanke IDP camp outside of Dohuk is home to more than 18,000 Yezidis and ered in the larger context of refugee other Iraqi families who were displaced by the conflict. (Photo credit: Samer Muscati/Human Rights Watch) resettlement: how can we compare the vulnerability of victims suffering different suicide.”

The atrocities waged by ISIS have elimi- atrocities? What of the 4.7 million Syrian refugees? What of those fleeing prolonged connated and displaced a significant portion of flicts in Afghanistan, Somalia, and South Suthe Iraqi Yezidi population and diminished the potential for the community to grow in the fu- dan? These are just some of the questions ture. Despite this, there has been consider- that are raised by Dalal’s story. Although she often feels powerless, she is determined to able reluctance in the West to use the label of continue the struggle to bring her and other genocide because of what some describe as its “broad implications.” The Genocide Con- Yezidi families to Canada.

Dalal and I hugged before she left. I took a vention provides for the prevention of genowalk in her world during those couple of cide and punishment of perpetrators. In Auhours, but I knew that afterwards she would gust 2014, President Obama authorized a continue to walk in her shoes and I would military and humanitarian effort to “prevent a continue in mine. And perhaps I held on a litpotential act of genocide.” It took another tle longer to avoid that inevitable separation. nineteen months for the European Parliament But Dalal and I still walk under the same stars. to officially acknowledge that the ongoing It’s my hope that stories like Dalal’s and many atrocities constitute genocide, noting “the others’ will slowly form constellations that collective obligation to intervene, to stop these atrocities and to stop the persecution.” can give us a sense of direction even in what seems like our darkest moments.

Speaking at a U of T event on February 12,

have managed to escape ISIS captivity. Although they rarely speak about their experiences, their stories make their way through the refugee camps and to extended family in the diaspora communities. “I was talking with my older brother recently, and when he was telling me about these women and girls who manage to escape after months in captivity… he was just sobbing,” Dalal recounted to me.

“They don’t know how to deal with the images that they have seen, and the horrors they experienced. …Even if they manage to return to safety in the refugee camps, they don’t come back to a home, especially if their families are still missing or were killed. They feel humiliated that everyone knows what they have been through. Many of them try to commit

Minister of Immigration, Refugees and Citizenship, John McCallum noted that, “it is not clear whether Canada will acknowledge the fact of genocide” against the Yezidis.

Ultimately, the Genocide Convention is a

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Rights Review YAIGUAJE V CHEVRON CORP IS BACK IN THE CANADIAN COURTS Graham Henry (2L) In the wake of the Supreme Court of Canasettled at $9.51 billion USD. However, Chevda (SCC) granting jurisdiction last Septemron refused to honour the judgment, alleging ber, the case Yaiguaje v Chevron Corp. will fraud and unfairness. According to their webbegin again shortly in the Ontario Superior site “Chevron is defending itself against false courts. This case is just one part of the legal allegations that it is responsible for alleged epic often referred to as simply ‘The Chevron environmental and social harms in the AmaCase.’ This Canadian iteration attempts to zon region of Ecuador.” Since Chevron is unenforce the $9.51 billion USD judgment levwilling to honour the judgment, the plaintiffs eled against Chevron by the Ecuadorian have turned to foreign jurisdictions to enforce courts for environmental damage caused by the ruling. Chevron succeeded in US District oil extraction operations in an isolated region Courts where the enforcement of this judgof Ecuador. ment was blocked for reasons of fraud and From the mid 1960’s to 1992, Texaco (subracketeering. This ruling is currently on apsequently acquired by Chevron) had significant oil extraction operations in the Lago Agrio region of Ecuador’s jungles. As a result of this operation, an area of 1,500 square kilometers was disastrously polluted in such a way that the health, livelihoods, and future of the indigenous peoples in these communities were, and remain, threatened.

For almost 23 years those affected have been seeking legal accountability and environmental justice.

By 1993, Chevron no Maria Hortencia Punina standing on the farm owned by her father. The area has been longer held any assets in badly contaminated by petroleum and open oil waste pits abandoned by the oil giant Ecuador. Thus, 47 indige- Texaco (now Chevron), which have led to the death of the farmÕs livestock. (Photo nous Ecuadorian plain- credit: Caroline Bennett / Rainforest Action Network, Creative Commons, April 2010) tiffs, representing the affected communities, peal. sought to hold Chevron accountable in New And so they have come to Canada. In May York where the corporation’s head office is 2012, the plaintiffs commenced an action located. This effort was eventually rebuked in against Chevron and two of its Canadian sub2002 on the basis of forum non convenien sidiaries. Alan Lenczner, one of the top litigaand the Ecuadorian courts were deemed the tors in the country, took on the plaintiffs’ appropriate venue for the plaintiffs’ claim. In case. First heard in the Ontario Superior concert with this judgment, Chevron made a Court of Justice, the case climbed the judicial number of undertakings to honour the judgladder on the preliminary question of jurisdicment of the Ecuadorian Courts. tion. On this topic the defendants argued that And so they went to Ecuador. In 2003, the there must be a ‘real and substantial connecplaintiffs filed suit in Ecuadorian Provincial tion’ between the Canadian court and the deCourt and eight years later received a masfendant or action. sive $19 billion USD judgment in their favour.

Oral arguments before the SCC happened After several appeals took the case to the at the end of 2014. A coalition made up of U of country’s highest court, the dollar amount T’s International Human Rights Program

amongst litigators that goes ‘[the] defendant wins by not losing’ and that, to be honest, has kind of been Chevron’s tactic from the very start: [raising] every possible argument that they could [raise]…

This 23-year legal process has seen Chevron willing to engage in any and all legal battles in order to avoid paying the judgment. A now-famous comment by a Chevron spokesperson in a 2010 interview with GlobalPost summed up their position well when they vowed to fight the judgment, “until Hell freezes over, and then we’ll fight it out on the ice.”

While just one part of a much larger case, this decision is not without significance. Asked why this decision matters, Wanless said “[i]t’s a big victory because the highest court of the land has sent a very clear signal to Chevron, but also to corporations in general, that Canada is open to foreign plaintiffs who have successful judgments in other countries. [It] clarified, for the first time really, that there are no barriers to accessing Canadian Courts.”

So where are things Crude contaminates an open toxic pool in the Ecuadorean Amazon rainforest near headed now? Back at the Lago Agrio. It was abandoned by Texaco (now Chevron) after oil drilling operations ended in 1990 and was never remediated. (Photo credit: Caroline Bennett / Rainfor- Ontario Superior Court est Action Network, Creative Commons, April 2010) the plaintiffs will now attempt to prove that the Ecuadorian judgment “the approach favoured by Chevron is sound can and should be enforced against Chevron neither in law nor in policy.” and Chevron Canada. The plaintiffs filed a Cory Wanless, a lawyer with Klippensteins motion in October 2015 to dramatically reand an intervenor for IHRP, MWC, and CCIJ strict the defences available to Chevron and at the Supreme Court, said that Chevron’s then subsequently called for summary judg“argument that there was a new jurisdictional ment. In response, Chevron has filed its own test for enforcement actions was novel. Nomotion for production and/or a stay. body had ever argued that before. No court All this sets the stage for the next chapter has ever accepted that before. And every in this legal epic: a top litigation firm in Canacourt that has looked at it, in fact, has speda representing a group of marginalized Eccifically rejected it.” When asked why this juuadorians versus one of the largest oil comrisdictional issue was the battle Chevron depanies in the world armed with a deep war cided to wage, Wanless explained that it, chest and a never-say-die attitude. Arguwas part of Chevron’s overall goal of delayments will take place in Toronto in early ing payment and fighting every possible fight March. that they could fight. There’s a saying (IHRP), MiningWatch Canada (MWC), and the Canadian Centre for International Justice (CIJ) acted as intervenors. The judgment for was delivered on 4 September 2015, and Justice Gascon, writing for the unanimous court, dismissed the appeal, rejected the jurisdictional tests proposed by Chevron, and found that Canadian courts did have jurisdiction over this matter. The Court found that a ‘real and substantial connection’ only needs to exist between the foreign court and the litigants or with the subject matter of the dispute. Like the courts below, Justice Gascon found that

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BREAKING LEGAL BOUNDARIES: TRANSNATIONAL TORTS AND HUMAN RIGHTS Emma Julian (3L) On 19 January 2016 at an event organized by the International Human Rights Program, the Honourable Ian Binnie, former Justice of the Supreme Court, and H. Scott Fairley, a prominent legal practitioner in international law, discussed how private law could provide a forum for human rights victims. Moderated

by University of Toronto Law professor, Audrey Macklin, the discussion focused on corporate accountability for international human rights violations. Namely, they considered what extent domestic law may permit the adjudication of foreign wrongful acts, a question raised by the recent Canadian court proceedings in Chevron Corp v Yaiguaje, Choc v Hudbay Minerals, and Araya v Nevsun Resources Ltd. Both Justice Binnie and Mr. Fairley commended recent advances in Canadian law that permitted victims of human rights abuses committed on foreign territories to have their day in court in Canada. These legal developments are particularly important given that a significant number of global mining and exploration companies are headquartered in Canada. Often such companies operate in resource-rich countries where there are poor populaces, weak rule-of-law and inadequate human rights protections – a combination that can create fertile ground for corporate complicity in human rights violations.

Justice Binnie and Mr. Fairley identified several legal hurdles facing prospective plaintiffs in their pursuit of tort actions against Canadian corporations in Canada for acts committed abroad. Two of these were (1) to satisfy jurisdictional requirements and (2) to translate human rights obligations into domestic tort liability.

Satisfying jurisdictional requirements involves adapting traditional notions of jurisdiction. The doctrine allowing a domestic court to assume jurisdiction over a tort claim is outlined in Club Resorts Ltd v Van Breda, highlighting factors that connected a claim to the province. In Chevron, the SCC expanded this doctrine to allow a foreign judgment to be recognized and enforced in Canada as long as there was a real and substantial connection between the foreign court and the litigants or the subject matter of the dispute.

The SCC found that a Canadian court would have jurisdiction to enforce the judgment of $9.51 billion USD awarded by the Ecuador

Court of Cassation to 47 plaintiffs. They represented about 30,000 indigenous Ecuadorian villagers who sought redress for harms caused by Chevron’s oil exploration and extraction operations near their villages. As Chevron did not hold any assets in Ecuador, the plaintiffs sought enforcement of their judgment in Canada even though Chevron Canada was not directly involved in the harms committed.

Justice Gascon commented,“In today’s

rights obligations into domestic tort liability.

This involves a myriad of considerations that all point to the same question: are there existing domestic legal frameworks to support a finding of tort liability for human rights violations by corporations? The short answer put forward by Justice Binnie and Mr. Fairley was yes.

The first consideration is to what extent international law and international human rights norms are part of the law in Canada. Viola-

globalized world and electronic age, to require that a judgment creditor wait until the foreign debtor is present or has assets in the province before a court can find that it has jurisdiction in recognition and enforcement proceedings would be to turn a blind eye to current economic reality.” Justice Binnie agreed, commenting that for a court to decline jurisdiction on the basis of artificial corporate structures would be to ignore the reallife conditions under which large multi-national corporations operate.

A second hurdle is to translate human

tions of international human rights treaties can and have become the basis for claims in tort in Canada. In Nevsun, the plaintiffs, local employees of the Canadian defendant’s mine in Eritrea, filed a civil claim alleging forced labour, slavery, torture and crimes against humanity. In Hudbay Minerals, the plaintiffs, indigenous Mayan Q’eqchi’ from Guatemala, alleged human rights abuses perpetrated by the Canadian defendant’s security personnel.

In this case the Ontario Superior Court dismissed the defendant’s motion to strike because it was not plain and obvious that the

plaintiffs’ claims failed to disclose a cause of action in negligence.

Canadian domestic law already has a strong framework for imposing liability on a corporation for the foreign tortious acts of its employees or contractors through enterprise liability.

Justice Binnie emphasized that courts have been willing to hold organizations liable for the negligence of its employees or agents. The corporation’s employees are “legally synonymous” with the corporation itself, and this should not change just because the employees were acting on foreign territory.

Finally, Mr. Fairley noted that the conventional tort framework articulated in Cooper v Hobart is sufficient to establish liability for human rights abuses. He commented that a court can look at a corporation’s assumed obligations, such as those presented through public statements or in its corporate social responsibility policy, to determine whether it has assumed a duty of care it did not follow through with. For example, in Hudbay, the defendant made public statements that it was “dedicated to promoting and respecting human rights” and had implemented “internationally recognized Voluntary Principles on Security and Human Rights for [its] personnel and contractors in Guatemala.” The defendant’s security personnel were alleged to have committed gang rapes and murders of indigenous peoples. As Justice Binnie noted acerbically, “it always [looks] good in court to show that someone is a hypocrite.”

In general, both Justice Binnie and Mr. Fairley welcomed Canadian courts’ willingness to dismiss formalism in favour of an approach to adjudication that recognizes the realities of the 21st century. Of course, in addition to the above hurdles, there are further issues to consider, including the expense of litigating these claims; finding willing and capable plaintiffs; and determining the appropriate standard of proof for civil claims against what are ultimately criminal acts. Furthermore, Chevron, Hudbay and Nevsun have yet to be adjudicated on their respective merits. Nevertheless, these cases represent welcome developments in the law for the protection and enforcement of human rights.

OPINIONS

16 | FEBRUARY 24, 2016

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Word on the Street Valentine’s Day: Plans vs. Reality His plans: Go out to a moderately priced McDonald's, just me, my sweetheart, and my paralyzing guilt over dipping into the Scotia line of credit one more time.

His plans: Read the collected works of Lord Byron with a glass of Coche-Dury Les Perrieres, under the auroral hues of February moonlight.

What Actually Happened: Saw a guy in the McD’s line who looked like the teller at Scotia, had a minor freak-out, and ran home for Mr. Noodle and scented candles.

What Actually Happened: j/k cried into empty protein container.

Bernd Buschke (3L)

Tyler Henderson (3L)

His plans: Have a nice chill day and get some work done at home in Burlington. Caitlin and I agreed that seeing Dave Chappelle on Friday was our Valentine's Day celebration.

His plans: Watch Deadpool, a classic love story about a man who gets cancer but fights back for the woman he loves, with my soulmate.

What Actually Happened: Crisis averted— Caitlin and I got Greek food together in Burlington. No harm no foul.

What Actually Happened: Soulmate kidnapped by supervillain outside movie theatre as part of contrived superhero origin story.

Andrew Lynes (3L)

Cory Bettel (1L) His plans: Go to Montreal, spend time catching up with long-time girlfriend, eat well and do lots of cuddling.

Her plans: The same as what Andrew said! Wait, he's going home?! I assumed that we would be doing something together...

What Actually Happened: Train to Montreal broke down outside of Belleville in -25 weather. After winning a survival of the fittest competition I became the leader of car 5's new post-apocalyptic winter society. As their leader, I reinstated the right of Prima Nocta and mated with the women, and some men, on the train as part of a debaucherous new Valentine's Day ritual known as Gamunga.

What Actually Happened: Foolish boy.

Caitlin Porter (3L)

What she said happened: My AMAZING AND THOUGHTFUL boyfriend totally surprised me with an amazing dinner for two he cooked and flowers and really nice wine!

Nitai Ben-Shach (3L)

What Actually Happened: Rona spent 5 hours arranging a fake table set for a romantic dinner to get the perfect lighting for an Instagram pic while her boyfriend fell asleep during a particularly long Fail Compilation video he was watching.

Rona Ghanbari (2L)

Put Up or Shut Up ARON NIMANI (3L) Discussions within the law school are pretty unusual. When you are more accustomed to hearing the opinion of a softball teammate at practice, or a Tinder date over their third beer, the level of intelligence and thought behind a law student’s opinion can be impressive. Staggering, even. Sadly, that opinion can also be blinded by its own perceived genius, and we’ve seen that with some fundraisers lately.

I think it goes something like this: “I’m by all accounts objectively intelligent and welleducated, I’ve put a lot of thought into this issue, and on that basis I’ve formed an opinion.

Ergo, my opinion must be a good one, and I should share it.”

Unfortunately for everyone involved, that is not always sound logic. Not because your opinion is incorrect or necessarily unreasonable, but because when an opinion is all you have, it usually is not enough. But people dislike confrontation, so when you go ahead and

say something controversial or offensive without inviting discussion, you get nothing but an echo chamber. You feel assured, better about yourself, and are encouraged to do it again.

I’m here to tell you to stop.

Who are “you”? You are every law student who wants to comment on fundraisers and events just for the sake of making yourself heard. Whether it’s a Facebook post, a comment on a news story, or an article here in Ultra Vires.

Let’s consider the article that prompted me to write this, titled Law school caught in tangled web of obligations following Promise Auction. Putting aside the point that there was no tangled web of anything, following that clickbait headline led to an article that can be summed up like so: “Bitch, complain, bitch, complain, bitch, complain…oh but it did better than last year.”

Let me be perfectly clear: the Promise Auction organizers bested last year’s results,

raised thousands of dollars for two great causes…and got publicly shit on. Not “received some criticism” or “were given ideas on how to improve.” No, what they got was a series of paragraphs complaining about the job they did. Now, show of hands—who wants to volunteer to run it next year?

Right.

(A note lest you think I’m being too hard on the article: the author explained on Facebook (then deleted the post) that he was “unable to get the information he needed” about the Promise Auction. He tried one organizer who was unable to reply in time, so instead he relied on an eavesdropped out-of-context conversation for talking points.)

Let’s consider another couple of examples from around this time last year—Flip Your Wig for Justice and Walk a Day. The first is a pledge-based fundraiser in support of access to justice in Ontario. The second is an international White Ribbon Campaign pledge-

based fundraiser in which men receive pledges for wearing heels for a day in support of ending violence against women.

Both are fundraisers that support important cause. Yet both received heavy criticism and backlash, also beginning with a UV article (rather prophetically including in its title “this has gotten too silly!”). Unlike Tangled Web, the article wasn’t a complaint just for the sake of complaining, it was a complaint for the sake of the author’s moral views and for the sake of a cause and population he felt was underrepresented. It generated thoughtful discussion on important social issues. Unfortunately, by my count, it offered only one suggestion on how to improve fundraising efforts.

While Flip Your Wig is independently run and can continue without having to placate a vocal minority, Walk a Day has to strike a balance, and the organizers, your classmates, were left scrambling to come up with some-

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OPINIONS/DIVERSIONS

FEBRUARY 24, 2016 | 17

Construction Workers To Finish Library In Frenzied All-Nighter continued from p. 16 thing new and engaging that will continue to raise badly needed funds. Whether the resultant March 9 Yoga and Lunch fundraiser will manage to do so remains to be seen. I certainly hope so, and I encourage everyone to attend. Someone has already found cause to complain, but my thoughts on the social justice war can be saved for another article.

What we need to do is talk about how to improve our events and fundraisers, or it really is going to get too silly. It isn’t my goal to harp on anyone’s commentary. It’s my goal to encourage everyone to start discussions on what you consider to be the issues apparently plaguing all of our fundraising efforts. (Has someone complained about the bake sale yet?)

Remember, even if you’re not friends with them, everyone in this school is your colleague. They are the articling student showing you around your in-firm, and they will be the lawyer sitting across from you in the courtroom. They donate their time to help good causes that they believe in and believe are worthy of your support. When you share your opinion, they will hear it, so make it worthwhile.

I am not here to say that you have to pander to everyone with whom you disagree. Debate is healthy, and it drives progress. I am here to tell you that when the totality of what you are saying is “this and/or you are wrong,” not only will you add no value to anything, you’ll probably do more harm than good.

So remember what your mother taught you: think before you speak. Ask yourself whether you are driving conversation, or driving it into the ground. When the answer is the latter, don’t speak.

In other words: put up, or shut up. And if you can’t say something nice, say something constructive.

For more information about “Within Reach: An End to Gender-Based Violence,” please check out the Facebook event page: https://www.facebook.com/ events/1106882552663640/

SIMON CAMERON (2L) With just a few days till the opening of the new Bora Laskin Law Library, workers from Eastern Construction sat down with Ultra Vires to explain their plans for completing the project in what they termed a “frenzied all-nighter.”

Although construction workers are now scrambling to meet a completion deadline that’s been known since 2013, they dismiss allegations that they’ve been procrastinating. “Maybe we let this get away from us a little,” one acknowledges. But “the Jays went on a playoff run in the fall, and that was really distracting. We really didn’t budget time for any Toronto sports successes.” Workers also deny they’ve been playing “Tree Protection Zone” on their laptops instead of building.

The site foreman explains that the second-year recruitment process really ground construction efforts to a halt. “Of course the boys, like all members of the public, care enormously about who’s interviewing at one of the

sisters. So that was distracting, and then, when that was over, the motivation to work hard just kind of went. Can’t explain it.”

be close enough.” They also claim that the hardest part is behind them. “The conceptual work is done. We know what the building is going to look like. We’ve gathered the supplies. Now we just have to use the next twenty-four hours to assemble them into a beautiful sculpture of steel and glass.”

Gian Medves, the Interim Chief Librarian agreed to keep the construction site open all night. And the workers said they “work better under pressure anyways. Otherwise we just end up tearing down and rebuilding the same section forever. The plan is to drink a lot of red bull, work till five or six in the morning, then sleep for an hour and check it over to make sure there aren’t cracks in the foundation PHOTO BY NADIA GUO (CLASS OF 2015) and that we didn’t forget to build the Still, with time ticking down towards the roof or doors. That’s happened before.” deadline, workers aren’t panicking. “A 3L At press time, the site foreman was consolgave us a really good set of blueprints. They’re ing himself with the knowledge that building not for Jackman Hall exactly, but they should inspections are heavily curved.

Re: 2016 Summer Student Position AIDAN CAMPBELL (1L) Dear Mr. Gatekeeper: I am a first year JD candidate at the University of Toronto Faculty of Law seeking to apply a summer position at Fanciest Lawyer, Fancy Lawyer & Fancier Lawyer.

I am excited at the prospect of showing up to your offices for 10 to 20 hour stretches, seven or eight days a week, in exchange for a wage higher than the vast majority of the country’s households.

While I am conflicted about your large corporate tax practice, the promise of paying down my student debt is sufficient to overcome my moral revulsion. The idea that my work will keep as much money as possible in the wealthiest private hands is something I hope to become more comfortable with over time.

Some may say FF&F’s work entrenching exist-

ing power structures all while carving out as big a chunk as possible for the firm is ethically dubious, but I believe everyone is entitled to counsel. Especially if they have a lot of money.

My resume and transcript speak for themselves. Thanks to my privileged background I have had enough uninterrupted time and resources to develop excellent test-taking skills. I have had the further luxury of being able to dedicate an inordinate amount of time to volunteerism and the kinds of hobbies that reflect a caring and well-rounded person. My sharp yet literal and unimaginative brain was wellsuited to the rigidity of our education system and I am confident the same will be true of your firm’s work. I am also white, so that helps.

I mean, everyone talks in the abstract about how the legal profession is an old white boys

club. Does this need to change in practice? Do you need less of me and more of somebody else? Is it incumbent on me to withdraw from the pool? No, of course not. I’m sure I’ll be a good fit, after all.

Thank you for taking the time to consider my application. I look forward to the gauntlet of interviews, some masquerading as cocktail lunches, where you will hope to see the mask slip. Luckily, it sits low, my starched collar holding it firmly in place.

I have the honour to be your obedient servant, A. Cam

DIVERSIONS

18 | FEBRUARY 24, 2016

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Feeble Legal Fables Tort Or No Tort?

PROFESSOR SIMON STERN An extremely Negative (and only barely Reciprocal) Easement had grown weary of remaining fixed to a single habitation, when obstructing the aims of the local Business Improvement Association, and had taken to roving about, fomenting strife and discontent wherever it rambled. In the course of its travels, it encountered an exceedingly Adverse Possession, of the worst and lowest character that can possibly be imagined. Both of them delighted in nothing so much as trash-talking, grudge-sowing, and generally casting all and sundry into hatred, ridicule, and contempt.

Their combined malignance was such that nearly all construction projects in the vicinity ground to a halt. In fact, people were so dispirited by the bitterness and antagonism that they could hardly get anything done at all.

One day a Professor of Law and Ergonomics from the University of Chautauqua arrived, bearing the inspiring gospel of Succour and Support. Shocked by the generally unproductive state of affairs, she quickly discovered the cause of dissension, and took it on herself to lecture the two doctrines about their proper aims. She was particularly dismayed that an easement, whose very name showed that it should be dedicated to comfort, contentment, and the relaxing security that comes with promoting the flow of commerce, had instead opted for a life of malevolence and acrimony.

“Moreover,” she observed, “once you left your

MAUD ROZEE (1L) AND CLARA ROZEE (3L) original abode you abandoned your theoretical justification entirely. You’ve got no reason to exist. And the same goes for your notorious pal.”

“But that’s where you’re wrong,” the easement replied; “I’m a negative easement, and must remain true to my nature, wherever it takes me.” This rather threw the visiting professor for a loop, until she saw a way around the difficulty. “In that case, can’t you see that you’re going about it the wrong way? You’re helping the very people you are trying to hurt!” She proceeded to expound on all the benefits enjoyed by indolent persons who were receiving social assistance without lifting a finger. Both doctrines, now persuaded of their errors, asked the professor what they should do instead. She suggested that they could be far more effective if they turned their efforts to litigation.

Moral: Misery Loves Champerty.

On February 8 at 12:05pm, Professor Ripstein's Torts class was interrupted by a fire alarm. We evacuated Old Vic but Ripstein insisted on teaching two more cases while we froze on the pavement outside. Ripstein's passion for Torts kept him warm but I personally was extremely cold. TORT or NO TORT?

Trying to put together a table of ten for the law ball has made me realize how few of you I actually like. Nine friends? I don't know nine people I would trust to…I literally don't think I know nine people at the law school. Just texted my one friend; she only knows two. TORT or NO TORT?

Dean Iacobucci announced the opening of the new law library like one day before reading week. I had already made plans to go home, which I never would have done had I known. I would have lined up at 4am to be the first to set foot in the new space, but instead I missed the christening of the law library and my opportunity to explore its virgin territory before it was soiled by my savage law colleagues. TORT or NO TORT?

I have been told by no less than twelve upper-years that I shouldn't worry about my summer. Every time I meet an upper-year, they make unsolicited remarks about how everything will turn out fine. Their constant and unrelenting reassurances that I have nothing to worry about is causing me acute anxiety.

TORT or NO TORT?

The library rejected my carefully written five page proposal to pay off my library fines by 2018 through a combination of acts of services, payment installments, and public flagellations. The good news is I can still take books out. TORT or NO TORT?

Falconer is so warm that the chocolate bar I bought for nourishment during my small group melted completely. I was forced to lick the molten chocolate off the wrapper, eliciting the concerned gaze of Professor Stacey.

TORT or NO TORT?

The fireplace in the new reading room looks like a fireplace for ants. Did they get it on clearance? Was it the scale model for how the finished fireplace should look? You couldn't grill a shrimp over a flame that size. TORT or NO TORT?

If you have the ambition.

Some people have long known what they want out of a career. They look beyond their present and focus on their future: a future with international scope, global clients and limitless possibilities.

If you are that person, you’ve just found where your future lies.

Law around the world nortonrosefulbright.com

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DIVERSIONS

FEBRUARY 24, 2016 | 19

Stranger In A Strange Land?

HARRISON CRUIKSHANK (3L) You might have thought that after returning from a term abroad, my duties as foreign correspondent would end. You would have thought wrong. Since returning to Canadoodyda, I have traveled to lands far more exotic than those I saw in Europe.

One city in particular sticks in my mind.

The air hangs heavy, the memory of smog still lingering in the scent. It’s not the smokey flavour of tobacco you get in most French cities, but more an industrial grimey flavour. There is still a hint of tobacco, but cigarettes are notably absent from patios thanks to the strict government regulations of the country. The city itself is a study in wealth disparity—a somewhat dangeresque core is surrounded by wealthy suburbs born from converted farmland. Of course, the core itself is rejuvenating, as starving artists displace starving immigrants and galleries and DIY venues pop up between seedy cafes. The city’s sign reads: “Hamilton,” perhaps a new name celebrating the hip-hopera Broadway show of the same moniker. Wait, no, it’s named for Robert

Hamilton. I’m thinking of Hamilton, Ontario. Sorry guys.

But I can boast of more exotic locations!

Certainly! Indeed, once I traveled the countryside on a decrepit rail system. A failure of the private sector or a governmental blunder, clearly a matter of argument for these sadlooking, Eastern-Blockish trains. The scenery outside was varied, though at times equally depressing. Urban sprawl adjacent urban sprawl, each city as boring as the next. They seemed to be in place only to serve some grander metropolis. One spot looked like a prime location for Gas-Fire Plants, but I guess residents of the local cookie-cutter mansions are too rich to generate their own power. On the bright side, the terminus points of train tracks had some gorgeous scenery, it was almost like being in… Ontario. Oh. Guys I’m still talking about Ontario, sorry.

Worry not! This correspondent still has some foreign left in his blood. I remember walking the streets of another city that you will all come to envy as I describe its gran-

deur! This city was definitely world-class; I remember because all the promotional materials for it told me so. The air actually smelled a lot like the air of Hamilton, but someone actually stopped me on the street to tell me why it smelled much better than Hamilton and was indeed, way nicer. The city was full of theatres, galleries, museums, and restaurants. No Michelin stars, mind you, but there was a delightful food fest named for the seasonal changes experienced by the city thanks to its specific latitudinal position on our planet. I ate the traditional cuisine of the city, which seemed to be the cuisines of other cities I’d been to mashed together with maple flavouring. Yummers!

I can’t hundo-p recommend this city though. While it’s not as expensive as other places I’ve been, some things had ridiculous price tag. Giant condo buildings seemingly stand empty, yet renting an apartment costs an absurd amount! Not only that, but wine is only available in these weird little stores with a significant markup. On top of everything

else, one library I visited cost me more than $30,000! I mean it was a nice enough looking library, but $30,000? That’s enough for a year’s tuition at… oh it was Bora Laskin. I gotcha. I’m talking about Toronto now. Hm. Okay, I admit it. Since returning to Canadaddadoodydaa, I’ve pretty much stayed in Ontario, save for a brief trip to NYC to see “Lazarus.” But look at all the garbage I was able to write anyway! If there’s one thing I’ve learned traveling, it’s that there’s tons of cool junk to do everywhere, and that annoying maxim that you should approach your home city like a tourist is true. So go forth, dear reader, and explore your corner of the world!

It’s basically like every other corner, so long as you talk about it with enough abstraction.

Blast From The Past: Boat Cruise Fracas, Baby Crocodile Theft, and Sex Advice NICK PAPAGEORGE (1L) 12 September, 2006 – “2006 Orientation Smooth Sailing, Mostly: Incident on boat cruise only hiccup in otherwise awesome week” by Steven Werier It seems that the 2006 Orientation Week fulfilled its organizers’ goal of being “more interesting and more fun” than in years previous. It certainly featured an interesting conclusion.

The author tells us that “Orientation week festivities were an incredible success, marred only by a physical alteration between law students and bouncers on Friday night’s boat cruise.” Highlights of the ordeal included a bouncer chasing a student around the boat; the Orientation Chair catching a nightstick in the face while trying to intervene; and the police officers who met the boat ashore being treated to what was undoubtedly a spirited and alcohol-fuelled demonstration of Constitutional and Criminal Law analysis by several upper-years.

Perhaps we now know why the most recent Orientation activities went nowhere near the harbour after sundown.

15 January, 2008 – “Peculiar Proceedings: More Unusual Legal Cases in the News” by Sharon Silbert This segment seems lamentably to have run its course after just a couple of editions. However, it may be worth reviving for subheadings

such as: “Australian Pothead Steals 2 Baby Crocodiles, 1 Monkey”, which the defendant in that case conceded was a “dumb stoner” thing to do.

The next one is even better: “Court finds Woman in Contempt for Filing Cheeky Document.” In this legal saga, model citizen and ironically-named defendant Judith Law was held in contempt of court after she attached a note to the order she had to sign revoking her probation. In it, she kindly urged the judge: “Kiss my ass.” She was sentenced to 90 days in prison for this erudite correspondence, so it is highly unlikely that the judge took her up on her offer. Perhaps Ms. Law was also being punished for her lack of originality, seeing as a “Motion to Kiss My Ass” had been filed in a Georgia case years earlier.

16 October, 2007 – Ultra Vires Solicits Submissions “Don’t like Our Ultra News? Think You’re Funnier? You Try It! If we publish yours, we’ll give you $50” So reads the ad from an issue of yesteryear.

This is still the offer we make to you to this day, except we have tweaked things a bit.

First, this offer is the subtext to every article we publish rather than a printed ad—making it no offer at all and totally unenforceable.

Second, the monetary reward has been replaced by donuts, and this reward may be claimed by those who have successfully been

published as well as those who have not, did not try, and could not care less.

So what are you waiting for? Write for us today! Or don’t! Either way—free donuts!

18 March, 2008 – “Scandinavian impressions of U of T Law” by Henrikka Hietala, Erika Löfgren, and Kajsa Wahrenby At the end of an eight-month sojourn at U of T, these three exchange students from Sweden and Finland penned their host school and city a farewell letter. The trio signs off by noting how much they enjoyed themselves, but the meat of the article is their wonderfully pithy observations about life at the law school.

For instance, the group was surprised to find what they refer to as “Soviet-style washrooms” in use at the law school (a quick Google search coupled with a trip to the Falconer basement sheds some light on this description).

The trio marvelled bemusedly at the abilities of our Supreme Court justices to engage in hundred-page “never-ending conversations with themselves.” The triumvirate was also perplexed by the amount of time U of T students spent on Facebook during class, given the remarkably steep tuition. Plus ça change.

17 January, 2006 – “How to screw your classmates (literally)” by Bumblebee In this segment, an anonymous question-

and-answer column of sorts, the author tackles a question of great social and political import: “How can I have sex with lots of people at law school and not get a bad rep?”

The author prefaces the answer by noting it is coming from someone who claims to never engage in this extracurricular activity. The tongue-in-cheek advice is to choose partners carefully: seek out a partner with more to lose reputation-wise than you do should the affair become public knowledge; avoid the chatty drunk; be discreet; get tested; and play safe.

But best part of the article is its conclusion to not bother: “There are so many reasons not to fuck your classmates. Do you want to sit across the solarium avoiding eye contact with last weekend’s mistake? These people are your future colleagues, adversaries, and bosses.

How much do you want to end up working for someone who has seen you naked in creative and compromising positions?” In sum, “We have the whole rest of our careers to screw each other over.”

DIVERSIONS

20 | FEBRUARY 24, 2016

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Graeme & Andrew Best Friends For Life* CLARA ROZEE (3L) AND MAUD ROZEE (1L) *SPONSORED CONTENT: Ultra Vires contributed a personalised profile to this year’s law school Promise Auction. Graeme Rotrand and Andrew Lynes were the generous co-winners.

When we arrive in the Birge Carnegie student lounge for this interview, the room is filled with laughter. Graeme and Andrew are already there. Andrew is relaxing in a chair by the door, his feet propped up on a table; Graeme is standing across the room, chatting with another student. Andrew smiles in greeting when he sees us, but Graeme is still caught up in his conversation. After a few more Simpsons quotes, Graeme crosses the room and sits in the matching armchair beside his friend.

The two men strike a handsome pair under the buzzing fluorescent lights. Andrew wears a light green shirt which sets off his eyes; Graeme is in his trademark purple V-neck sweater. They are obviously at ease in each other’s company. During the photoshoot for the interview, Graeme leaps comfortably into Andrew’s lap to pose for the camera.

The pair breaks into giggles at our first question: “When did you two first become friends?” “Friends? Really?” Andrew says in mock surprise. He and Graeme lock eyes affectionately. The two initially met in 2007, in their first year of undergrad, but the relationship didn’t flourish until fate brought them together again at the same law school.

A mutual love of the Simpsons, alcohol, and

trivia quickly formed an unbreakable bond.

After winning their first-ever U of T Law Trivia Night together as part of team Thundercougarfalconbird, Graeme and Andrew went on to run the trivia night, as well as a

lunchtime trivia tournament. The men also share a strong interest in Ultra Vires. “We love Ultra Vires,” says Graeme, his judgment predictably impeccable. Adds Andrew: “Definitely! We usually have UV reading sessions after each issue comes out.” “We also both

love [Ultra Vires Editor-in-Chief ] Brett Hughes,” Graeme gushes.

Graeme jumps to answer our questions first, while Andrew listens patiently, supporting Graeme’s answers with gentle corrections and clarifications. Andrew is the Frog to Graeme’s Toad.

Our planned questioning doesn’t last long. Graeme can’t resist interrupting with interesting facts about Andrew. He informs us that Andrew’s hometown, Burlington, is the natural habitat of the Jefferson salamander. “You know all this trivia about me!” Andrew says. Graeme jokes that the Jefferson salamander “isn’t named after the president, it’s named after the TV show.” “That’s a good one,” Andrew laughs generously, an encouraging twinkle in his eye.

If there are any cracks in this rock-solid friendship, we didn’t see them during our time with Graeme and Andrew, or “Graemdrew,” as their admirers call them. The pair maintain that they’ve only ever fought about who likes their mutual friend, Ryerson Neal, more. “Graeme’s a pretty hard person to fight with because of his tenuous grasp on reality,” Andrew says.

Graeme claims, “[Andrew] tried to fight me

once but I caught him in a logical loop.”

Graeme goes on to recount the story of how they once teamed up to slay a ferocious alligator in the Trinity College quadrangle.

What do they like best about each other?

Graeme goes first: “I was always proud he was a tall man.” Andrew responds, “I love your sweater.” (We obviously weren’t the only ones who noticed how fetching Graeme looked in his purple V-neck.) Graeme declares that Andrew is “magnanimous in defeat”; Andrew laughs. The two also appreciate the time they spend together. “I like his cool basement apartment,” Graeme says. Andrew adds, “He’s a wonderful host in Montreal, where we go to Osheaga every year.”

Sadly, the future of the pair’s friendship is unclear. “I didn’t plan on the friendship lasting after graduation,” admits Andrew. “I’m going to find a new and better version of Andrew,” Graeme states.

Still, their friendship will go down in law school history. “They’re a real life buddy comedy,” UV Editor Brett Hughes comments.

“Their friendship reminds me of Taylor Swift and Katy Perry,” says Students’ Law Society (SLS) President Andrew Wang, in a strange and ambiguous comparison. “That’s right,” says Andrew Lynes. “We’re the original odd couple.”