What is law? What is its value? And what justifications are there for specific fields of law and their key doctrines?

Answering fundamental questions like these was the life’s work of John Gardner, a former Professor of Jurisprudence at the University of Oxford who succeeded legal philosophers H.L.A. Hart and Ronald Dworkin in this prestigious chair. Gardner was a giant of legal philosophy in his own right who died after a spirited fight with cancer in 2019.

Now Osgoode Professor François Tanguay-Renaud, a former doctoral student of Gardner’s who also co-wrote with him, has teamed up with another former student of his to co-edit the first book celebrating Gardner’s important contributions to legal thought.

From Morality to Law and Back Again: A Liber Amicorum for John Gardner, was also edited by Michelle Madden Dempsey, a law professor at Villanova University in Pennsylvania. The collection features essays by 16 leading legal academics who benefited from Gardner’s guidance or were once his graduate students, including Tanguay-Renaud and Madden Dempsey. It includes contributions from legal scholars from Canada, the United States, Mexico, the United Kingdom, Israel and Hong Kong, and will officially be released by Oxford University Press on August 19^th.

The term “liber amicorum” from the title is Latin for book of friends – and that captured the spirit of the project, said Tanguay-Renaud. Unlike some prominent legal thinkers, he noted, “John was someone who really invested a lot of time and effort in his students. His incisive thought and extraordinary generosity really impacted a lot of people.”

Tanguay-Renaud described the volume as a handbook or guide to the many issues of legal philosophy that Gardner explored – and an attempt to spark new discussions.

His own chapter, titled State Crimes, draws on Gardner’s scholarship to examine whether legal norms should be developed that criminalize some instances of state wrongdoing. “The chapter argues that they may be, both conceptually and legitimately, at both the levels of international and domestic law,” he explained. “In the process, the essay makes the case for the introduction of more overtly punitive remedies in the public law context – such as under the Canadian Charter of Rights and Freedoms.”

Tanguay-Renaud, a former lecturer in law at Oxford, said the title of the book captures one key organizing thought underlying Gardner’s thinking: that the law often tracks moral norms that apply to all of us and often derives its justification from them. But the law also refines, reshapes and adds to morality.

Gardner applied this insight not only to general jurisprudence (otherwise known as general legal philosophy), but also to the study of specific fields of the law such tort law, contract law, discrimination law, criminal law and public law more generally, said Tanguay-Renaud. Many of Gardner’s insights are collected in the numerous books he published over the years, including Law as a Leap of Faith: Essays on Law in General (2012), From Personal Life to Private Law (2019) and Offences and Defences: Selected Essays in the Philosophy of Criminal Law (2007).

”In many ways, John’s work showcases the practical value of legal philosophy for both lawyers and ordinary citizens”, said Tanguay-Renaud, who regularly teaches courses on criminal law, criminal procedure, emergency law, foundations of Canadian law, the philosophical foundations of criminal law, jurisprudence and the rule of law.

“John’s work really gives us a window into a certain perspective of what the foundations of the law are,” he said. “I think it’s important for lawyers and judges to sometimes take a deep breath and ponder the underlying rationales for the doctrines they’re applying and the larger social enterprise they are engaged in. It allows them to be more deliberate professional actors and to help guide the evolution of the legal systems within which they act in sounder ways.”

Tanguay-Renaud said the image of Justitia on the cover of the book, which is expected to hit store shelves in October, is taken from a gargoyle at All Soul’s College, Oxford, that was sculpted in Gardner’s memory. A guitar is hidden in the hair of the gargoyle because the prominent legal philosopher was also an avid musician and an all-round lover of life.

He added that the book underlines Osgoode’s strength in legal philosophy, which is also reflected in the work of Osgoode professors such as Allan Hutchinson, Emily Kidd-White, Jennifer Nadler and Dan Priel.

Canadian companies that force employees back to the office in a bid to reinvigorate downtown economies are misguided and will ultimately find the move backfires, says labour law professor Valerio De Stefano, the co-editor of a new book on the future of remote work.

“In general,” he added, “it can be said that remote work is here to stay because it’s beneficial for both employees and companies.”

De Stefano, who serves as Canada Research Chair in Innovation, Law and Society, is the co-editor of The Future of Remote Work, published by the independent, Brussels-based European Trade Union Institute (ETUI). The book is also edited by Nicola Contouris, a labour law professor at University College London and director of research for the institute, ETUI senior researcher Agnieszka Piasna, a labour sociologist, and labour lawyer Silvia Rainone, who is also a researcher with ETUI.

More than 20 authors contributed to the book from a variety of disciplines, including lawyers, economists and sociologists.

“An important insight that emerges from the multidimensional approach of this volume,” reads a publisher’s summary, “is that the establishment of a worker centred future of (remote) work requires the exploration and development of constructive pathways at different levels and in different directions involving the role of regulators, courts, trade unions, researchers, businesses and workers themselves.”

“It’s a very timely book,” said De Stefano. “It addresses the phenomenon of remote work by looking at it from a variety of very disciplined angles.”

According to Statistics Canada, the percentage of employed Canadians who work from home for all or part of their work week now stands at just over 25 per cent, down from a high of 40 per cent during the first years of the COVID-19 pandemic. Numerous companies, such as Royal Bank of Canada and Amazon Canada have mandated their employees to return to the office for at least part of the week. But in a competitive job market, said De Stefano, that could come back to haunt them.

“Companies that want to retain talent will probably have to deal with it,” he predicted. “So it won’t be possible to switch to a pre-pandemic situation for most companies because they risk losing the most talented people.”

But unlike the first panicked months of the pandemic, said De Stefano, remote work going forward must not become “lock-down work,” workspaces must be adequate and workers should not be continually connected to the office.

“If we want to reap the benefits of remote work,” he added, “we have to get away from the constraints that we had under the pandemic and put more rigid boundaries between work and personal time.”

This, in turn, said De Stefano, will require giving employees more autonomy and creating a stronger spirit of trust between workers and their employers.

In the early pandemic, he noted, remote work was accompanied by a push by employers to introduce invasive surveillance software. Some of this so-called algorithmic management technology – often powered by artificial intelligence (AI) – can record video or take random screen shots, among other things. But surveillance technology can cause employee stress, anxiety and burnout, he added, and can actually reduce productivity when workers end up spending more time trying to game the system.

De Stefano said that the rise of remote and hybrid work has brought distinct benefits – like helping companies to trim their rental budgets, cutting the cost of commuting for workers and reducing the number of cars on the road, thus aiding the environment. While the negative impact on downtown economies is real, he added, it is incumbent on cities to find creative solutions for vacant office space.

“It would certainly be a loss to society if we decided to go back to a pre-pandemic scenario because we don’t know what to do with our downtowns,” he said. “That’s probably going to backfire.”

When people ask 3L student Ryan Boros this fall how he spent his summer vacation, he’ll have a technological tale to tell.

The Port Colborne, Ont., native and 2L student Elias Tung have been working this summer on a new online chatbot designed to make information about criminal law more accessible to the general public. The free application, called Law Newbie, was developed by Toronto criminal lawyer Jordan Donich.

Recent JD graduate Camille Melo, who is currently articling with the Hamilton, Ont., criminal law firm Collett Read LLP, spent the summer of 2022 conducting the initial research for Law Newbie.

The encyclopedic resource enables users to access details about criminal code offences and potential defence strategies simply by asking the chatbot questions.

“The whole thing has been built with a lot of effort and it’s very intuitive,” said Boros.

“I feel like it’s given me a much stronger idea of the core concepts of criminal law and the finer points,” he added. “The other benefit for me going forward is it’s inspired me to take more technology focused courses next year.”

One of them will be Osgoode’s Engineering the Law course, which is taught by adjunct faculty member Al Hounsell, who serves as the Toronto-based director of strategic innovation and legal design for the multi-national law firm Norton Rose Fulbright LLP.

Among other things, the Osgoode course introduces students to how client needs have pushed the boundaries of legal service delivery to include elements of data, computer technology and artificial intelligence, according to the course description. It also gives students the practical skills to break down contracts and legislation into decision trees, to develop markups and workflows for contract development and negotiations, to attain basic experience with common legal technology applications, and to apply design thinking methodology to legal problems.

Tung, who is leaning towards a career in family law, said his work with Law Newbie has helped spark an interest in working at the intersection of family law and criminal law.

“We’re just trying to make the information as accessible as possible,” he said of the project. “There’s definitely a need for criminal law resources like this because a lot of people don’t understand the criminal code – and it’s also important to understand your rights.

“I feel very fortunate,” he added, “because not a lot of people have the opportunity to do this kind of work.”

Melo said the research and writing that she did for Law Newbie last summer gave her a more solid grounding in criminal law.

“I really liked the research component of it and it was good to know as an up and coming criminal lawyer,” she noted. “I really enjoyed working on an access-to-justice initiative like this, too.”

Donich said he is currently experimenting with integrating artificial intelligence (AI) into the chatbot, but is still determining its effectiveness.

“I am manually programming it now,” he said, “and Camille, Ryan and Elias’s brains have been irreplaceable. They’ve all said they wish they had had this experience with technology earlier in law school – and lawyers who are my age are saying the same thing.”

He said he is planning to hire another student to work on the project part-time beginning in the fall.

Along with his work in criminal law, civil litigation and professional regulation, Donich also specializes in cybersecurity and internet-related crime.

“Technology is changing the legal profession, faster than we have anticipated,” he said. “Lawyers and law students need to be part of the change to ensure any innovation improves our client experience and continues to serve the public interest.”

Two Osgoode alumni are the recipients of 2023 Canadian General Counsel Awards, which are presented annually to honour excellence in the in-house counsel community across the country.

Sloane Litchen ’96, who serves as senior vice-president and general counsel for Toronto-based Sun Life Canada was co-recipient of the Blakes Judy L. Wilson Diversity Award, which is presented to a law department that has demonstrated an innovative approach to promoting diverse and inclusive workspaces within their organization or across their industry.

Jacob Posen ’14, general counsel, private infrastructure, in the Toronto office of New York-based CBRE Investment Management, was presented with the Sun Life Tomorrow’s Leader Award. According to the nomination criteria, the award seeks to recognize individuals with superior leadership skills and legal capability who will continue to advance the role and stature of general counsel into the future.

Litchen, who shared the award with her colleague Trish Callon, senior vice-president and general counsel, corporate, with Sun Life Canada, said the company’s legal department was recognized for its campaign to embed diversity, equity and inclusion into the design and execution of all aspects of its talent management discipline.

“That included making changes to ways in which we were sourcing, selecting, retaining, developing and promoting our talent,” she said in an email.

The 18^th annual Canadian General Counsel Awards gala was held June 12 at the Fairmont Royal York in Toronto. The recipients of the 10 awards are chosen by the CGCA advisory board from among a group of nominated finalists.

It was a textbook case of why textbooks are never enough at Osgoode.

Over a whirlwind three weeks last month, 2L students Louis Althaus and Brandon Jeffrey Jang had the opportunity to change a family’s life – working in the high-stakes world of immigration law and picking up invaluable, front-line lawyering lessons from one of Osgoode’s premier clinical offerings: the Community and Legal Aid Services Program (CLASP).

To fight an impending deportation order, Althaus and Jang – guided by CLASP’s expert immigration lawyer, Subodh Bharati – worked evenings and weekends, mobilizing every legal strategy they could to keep the family from being forcibly returned to Kazakhstan, where they faced potential persecution and death.

Thanks in part to their hard work in winning an 11^th hour reprieve, the family’s 14-year-old daughter, who was voted valedictorian by her Grade 8 classmates days before the deportation was to take effect, now has a chance of realizing her dream of becoming a doctor in their new Canadian homeland.

“It was a privilege to work on this case and have so much of the family’s trust,” said Althaus. “We were so thrilled to turn it around and get them the best result we could have hoped for.”

In the course of three weeks, Jang and Althaus filed a 180-page stay motion to the Federal Court of Canada, detailed affidavits to support a humanitarian and compassionate (H&C) application to Immigration, Refugees and Citizenship Canada (IRCC), and a deferral request to the Canadian Border Services Agency (CBSA).

The two students spent time getting to know the family, which helped them add critical information to the original H&C application, which was prepared by a Toronto law firm. “It was important to us that we brought their stories to life,” Jang said. “Beyond all that, their belief in Louis and I gave us strength to fight hard for them.”

The family’s 2017 escape from Kazakhstan, where the father, a shopkeeper, was beaten and threatened with death by a local gang, reunited him with his brother and sister in Canada and enabled him to care for his sister, who was suffering from Parkinson’s Disease. In little more than six years, the hardworking family’s three children became fluent in English and excelled in school.

A thank-you note sent by the mother to the CLASP legal team after the successful resolution of the case was filled with emotion.

“Hello, Subodh, Louis, and Brandon,” she wrote. “My happiest day was June 26, 2023, the day when you called and informed us of the amazing news.

“I was so delighted that for a short while my voice disappeared and my eyes filled with tears,” she added. “These were tears of joy and happiness. Your knowledge and experience have helped us pass through difficult processes. I want to express my huge gratitude to you.”

The two law students said it has been an honour for them to learn from seasoned supervising lawyers like Bharati and their law school peers. “But what this case has really taught me is that it’s about learning from the client, too,” said Jang. “I want to carry this mindset throughout my legal career. The family’s stories taught me a lot about compassion and empathy, most importantly being there for people who need it the most.”

Althaus, who is originally from Germany, and Jang, a Scarborough native, said many law firms would not have had the resources to delve so deeply into the family’s story on a legal aid retainer. The experience “truly highlighted the magic” of Osgoode’s clinic system, added Althaus.

The two Osgoode students said they were also inspired by Bharati’s guidance and will carry those lessons with them, no matter what area of law they ultimately decide to pursue.

“Subodh taught us to be courageous and to take initiative,” said Althaus. “He’s willing to fight for his clients on all fronts and to exhaust every avenue possible within the judicial system – and he has instilled that in us, too.”

Bharati said CLASP offers an incredible opportunity to students.

“They are able to work directly with vulnerable and marginalized people who truly need them,” he explained. “In doing so, they see, not only the privilege an Osgoode education affords them but their immense capacity to do good. These experiences will stay with them for the rest of their careers.”

Jang said he applied to CLASP largely on the strength of the glowing reviews he heard from other law students who had worked there.

“Just hearing the real difference you can make actually doing work on a case and having a real influence on someone’s life – that was something I was drawn to,” he added. “I wanted an opportunity to help give a voice to people who need it the most, and CLASP provides a specialized opportunity to do so. After a few months working here, I can truly say that the clinic believes in its students.”

Althaus said Osgoode’s wide selection of clinical programs was a strong drawing card when it came time to pick a law school.

“When I chose Osgoode, I chose it knowing it has the most extensive clinical system in the country,” he noted. “I don’t think I could have worked on a case like this at any other law school.”

For Frank Nasca, it was the culmination of their Osgoode education – and a chance to test three years of legal course work in the courtroom. But the recent JD grad and academic Gold Medal recipient says the rare opportunity as a law student to work on an important tribunal appeal this past spring also meant fighting for a cause that’s close to their heart.

When Nasca, who is transgender, met Ottawa resident Nathaniel Le May in a Facebook group for trans people last winter, they took an immediate interest in his plight. For nearly a year, the Ontario Health Insurance Plan (OHIP) had refused to cover gender-affirming surgery for Le May, who identifies as transmasculine non-binary.

Nasca had studied the issue extensively in the independent research they had done during their three years at Osgoode. So they were happy to provide Le May with information and referrals. Then Le May asked Nasca to represent him in his appeal to the Health Services Appeal and Review Board.

“I could feel Frank’s passion for this case and them embracing the challenge,” said Le May. “They had already demonstrated they are very competent and that they have the ability to represent me.”

The adjudicative tribunal’s practice direction allows for appellants to be represented by law students. So Nasca agreed. Working together, the two of them dived in, spending hundreds of hours to prepare a case and build an evidentiary record that ultimately amounted to more than 1,000 pages. The case even attracted the attention of news outlets like The Globe and Mail.

“It was very time intensive,” said Nasca, “but it was an excellent learning experience.”

One early obstacle was finding an expert medical witness. Almost every Ontario doctor they approached declined, perhaps wary of testifying against OHIP. Nasca and Le May eventually scored a big win by landing Dr. Devin O’Brien Coon, a leading U.S. plastic surgeon and an authority in gender affirming surgery. O’Brien Coon is the clinical director and surgical co-director of the Brigham and Women’s Hospital Center for Transgender Health in Boston and an associate professor of surgery at Harvard Medical School. At another point, Nasca had to puzzle through the intricacies of serving an interprovincial summons on a Quebec-based medical expert.

“There was a lot of learning how to put into action things I had learned in a few courses,” they said, “and working through issues of evidence and how to get the things we needed into the record.”

Along the way, Nasca consulted with some of their Osgoode professors, including Professors Palma Paciocco and Bruce Ryder, adjunct faculty member and Stockwoods LLP lawyer Andrea Gonsalves and lawyer Kisha Munroe with the Human Rights Legal Support Centre, who had served as a mentor during their time in Osgoode’s Anti-Discrimination Intensive Program (ADIP). In addition, they consulted with former colleagues at the Toronto law firm Paliare Roland Rosenberg Rothstein LLP, where they interned in the summer of 2022, receiving significant support from lawyer Denise Cooney.

“I was extremely impressed by their informed, perceptive, deeply thoughtful approach to developing a legal strategy,” Paciocco said of Nasca’s work on the case. “I was also inspired by the energy and dedication with which they used their considerable talents and the legal training they have received at Osgoode to advance social justice – all while wrapping up the JD program and balancing their other commitments. Frank’s work on this case really represents the best of what the Osgoode community offers.”

Nasca and Le May based their arguments on statutory and regulatory interpretation, interpretation of the OHIP schedule of benefits, the Ontario Human Rights Code and sections 7 and 15(1) of the Canadian Charter   of Rights and Freedoms, which pertain to security of the person and equality rights, respectively.

For his gender-affirming surgery, Le May is seeking the surgical construction of a phallus, known as a phalloplasty. But OHIP repeatedly denied coverage for the procedure without a vaginectomy and hysterectomy – surgical removal of the vagina and uterus. Le May and Nasca argued that these additional procedures amounted to coerced sterilization and violated his rights under the Charter and Human Rights Code. They also argued that the wording of the OHIP schedule of benefits and relevant statutes did not preclude coverage of the phalloplasty procedure alone.

In early June, on the eve of the hearing, OHIP reversed its decision and approved funding for the phalloplasty, without the other procedures. As a result, the Health Services Appeal and Review Board lost jurisdiction over the matter, meaning that Le May’s Human Rights Code and Charter claims could not be adjudicated in that forum.

Nasca said OHIP’s decision was “bittersweet” – especially in a post-pandemic period of renewed hostility against the 2SLGBTQI+ community.

“What Nathaniel and I really wanted out of this case was to secure some systemic change,” they said. “My feeling about it was it was a bit of a damage-control measure by OHIP to minimize scrutiny.

“In some ways I feel proud,” they added, “because it speaks to the strength of the case that Nathaniel and I put together, which led OHIP to say we need to reverse course on this decision. But it also means that all the work we did doesn’t get to see the light of day and doesn’t have the same precedential value. We were hoping it would have a broader impact for our community.”

Nasca, who will begin a one-year clerkship with the Court of Appeal for Ontario in August, said that Nathaniel is now exploring other legal options. Their stint with the Court of Appeal will preclude them from being involved – for now.

In the meantime, as they begin their law career, Nasca said the experience gives them confidence in the solid grounding they received at Osgoode.

“I somewhat shaped my curriculum around doing something like this and this was a test of how it worked out,” they said. “I think I was pretty well prepared – especially at this stage of my career – by my education at Osgoode.”

It’s the hottest case in Canadian tax law right now – and this week some of Canada’s foremost tax law experts will offer new insights at a special event hosted by Osgoode Professional Development (OsgoodePD).

The June 28 afternoon symposium will be led by Professor Jinyan Li and Torys LLP tax partner John J. Tobin, the co-directors of OsgoodePD’s respected LLM in Taxation Law program. It is sponsored by the Canadian branch of the International Fiscal Association.

The Supreme Court of Canada’s decision in Deans Knight Income Corp. v. Canada (2023 SCC 16), written by Justice Malcolm Rowe ’78, was released on May 26, instantly stirring up speculation about its impact on the Income Tax Act’s general anti-avoidance rule (GAAR). It is the sixth time that Canada’s highest court has rendered a tax ruling related to the GAAR – with the last one coming two years ago in Canada v. Alta Energy Luxembourg S.A.R.L. (2021 SCC 49).

“It’s getting people’s attention,” said Li, “because case number 5, Alta Energy, went in a way where the outcome was in favour of the taxpayer and could have rendered the GAAR meaningless.

“Deans Knight,” she added, “goes beyond the letter of the law to look at the purpose of the original legislation. It’s good in a way because it says that rationale matters, in effect changing the court’s direction.”

Justice Suzanne Côté, who wrote the majority decision in Alta Energy, was the sole dissenting opinion in Deans Knight. Justice Rowe’s decision in Deans Knight cited research by Professor Li.

Along with Li and Tobin, the OsgoodePD symposium will include analysis from former Supreme Court Justice Marshall Rothstein, BLG LP tax lawyer Steve Suarez, who was counsel for intervenor the Canadian Chamber of Commerce, Osler LLP partner Pooja Mihailovich, Osler LLP partner Mark Brender and EY Law LLP partner Angelo Nikolakakis. Rounding out the afternoon lineup will be Blake, Cassels & Graydon LLP senior counsel Jeffrey Trossman and Thorsteinssons LLP partner Matthew Williams.

Topics up for discussion during the three sessions will include whether the Supreme Court’s analysis in Deans Knight is consistent with a taxable Canadian property (TCP) approach to object, spirit and purpose of the Income Tax Act, and how to square the Supreme Court’s 1998 tax decision in Duha Printers with Parliament’s choice of de jure control. Panellists will also discuss the language of the decision to examine what it means for the legal standards and tests applied to GAAR litigation and the implications of the decision for proposed amendments to the GAAR regime.

Li said opinion is divided in the tax law community about the significance of the Deans Knight decision. “Some people say this is a big change and others say no,” she added. “That’s why we’re having this symposium.”

Some tax law experts argue that the Supreme Court’s change in direction on the GAAR now relieves the pressure on Parliament to amend the Income Tax Act to strengthen the anti-avoidance rule.

“I think many people will be interested in coming and hearing what people have to say,” added Li.

To register to attend in person or online – or for an online replay on August 9, 2023 – click here.

It is a special honour to introduce the Chief Justice of Ontario, Michael H. Tulloch, to receive the degree of Doctor of Laws, Honoris Causa at this Convocation of Osgoode Hall Law School of York University.

I first met Chief Justice Tulloch when he was one of three Black law students in first year at Osgoode in the fall of 1986. An immigrant to Canada from Jamaica at the age of nine, he faced challenges in Canada — and at Osgoode — but with diligence and determination, he graduated in 1989 and was called to the Ontario bar in 1991. As a lawyer, he practised as a Crown prosecutor and in a successful private practice before he was appointed to Ontario’s Superior Court in 2003 and then to the Court of Appeal in 2012. In December 2022, when he was appointed Ontario’s Chief Justice, he became the first Black Chief Justice in a Canadian province.

While these are all important accomplishments, this Chief Justice is special for other reasons. He has led systemic reviews of the justice system, and significantly recommended more, not less, education for police in Ontario. His 300-page report about policing of Blacks, especially young males, concluded that “Police stops must be based on more than … a Spidey sense.” He provided leadership on legal and judicial committees and lectured about international justice reforms. At Osgoode, he was a member of the committee that designed the new and ground-breaking “Holistic” Admissions Policy to advance Osgoode’s commitment to “opening doors” to the legal profession for unrepresented communities. He was also the unanimous choice to receive the first Lincoln Alexander Award, presented by Osgoode’s Black Law Students Association.

But beyond these important accomplishments, the Chief Justice is a proud father of five children who is active in charitable and community activities. He is also a man of principle and a passionate, sometimes outspoken, defender of Canada’s Charter of Rights and Freedoms. He believes strongly in mentoring, especially for young lawyers, and his efforts to create connections between and among friends, colleagues and students reflect this commitment. As a trailblazer in Ontario’s legal profession, the Chief Justice stands on the shoulders of earlier Black lawyers, both men and women, who pursued their dreams, undaunted by the setbacks of racism. Like them, the Chief Justice understands that success is not a destination – but a continuous journey of learning and growth. In continuing his life work as a lawyer and judge, and now as Chief Justice Michael Tulloch, he understands that “inclusion is not about bringing people into what already exists; it is making a new space, a better space for everyone.” Congratulations!