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Articles by Philip Girard
A History of Law in Canada, Volume Two: Law for the New Dominion 1867–1914
A History of Law in Canada, Volume Two: Law for the New Dominion 1867–1914 This is the second of three volumes in an important collection that recounts the sweeping history of law in Canada. The period covered in this volume witnessed both continuity and change in the relationships among law, society, Indigenous peoples, and white settlers.
At the Crossroads of Fusion: British North America/Canada, 1750–2000
Abstract The story of the fusion of law and equity often centres on the story of New York state, whence the Field Code went forth, or of England. This chapter shows the more varied experiences of fusion in colonial British North America, and the degree of experimentation pursued by colonial governments that differentiated the local arrangements – and means of administering equity – from the arrangements at ‘home’ in England, or those in New York state.
The Contrasting Fates of French Canadian and Indigenous Constitutionalism: British North America, 1760-1867
Abstract In the century after the fall of New France, both Indigenous peoples of Canada and French Canadians could be described as colonised peoples. Yet the treatment of each group's pre-existing laws and the ways in which each found its constitutional demands recognised (or not) varied considerably. In spite of significant rebellions in 1837-1838, French Canadians went on to achieve a high degree of autonomy within the province of Quebec in the British North America Act 1867.
"Law and Empire, 1500-1812" by Philip Girard and Catherine Evans
Abstract When we think about law and empire, it is most accurate, if inelegant, to pluralize everything: empires, colonies, peoples, cultures, sources of law. The transnational turn has dramatic implications for the history of law in the Americas. Most obviously, especially for the period from 1500 to 1812, scholars have become increasingly sensitive to the role of European empires – including the British, French, and Spanish – in shaping America’s legal cultures.
"Rearguard or Vanguard? A New Look at Canada’s Constitutional Act of 17" by Philip Girard
Osgoode Home > Osgoode Digital Commons > Scholarship > Scholarly Works > 3003 Title Rearguard or Vanguard? A New Look at Canada’s Constitutional Act of 1791 Source Publication Journal of Imperial and Commonwealth History, vol. 50, no. 1, 2022, pp. 1–24, https://doi.org/10.1080/03086534.2021.1985215.
"St-Laurent, Judging, Justice, and the Death Penalty in the Shadow of t" by Philip Girard
Title St-Laurent, Judging, Justice, and the Death Penalty in the Shadow of the Cold War Document Type Book Chapter Source Publication Dutil, Patrice A. The Unexpected Louis St-Laurent : Politics and Policies for a Modern Canada. Edited by Patrice A. Dutil, UBC Press, 2020. Repository Citation Girard, Philip, "St-Laurent, Judging, Justice, and the Death Penalty in the Shadow of the Cold War" (2020). Articles & Book Chapters. 3004. https://digitalcommons.osgoode.yorku.ca/scholarly_works/3004
New Directions in Judicial Biography: More Humane, More Transnational, More Comparative
Title New Directions in Judicial Biography: More Humane, More Transnational, More Comparative Document Type Book Chapter Source Publication Pilarczyk, Ian C., et al. Law, Life, and the Teaching of Legal History : Essays in Honour of G. Blaine Baker. Edited by Ian C. Pilarczyk et al., McGill-Queen’s University Press, 2022. Repository Citation Girard, Philip, "New Directions in Judicial Biography: More Humane, More Transnational, More Comparative" (2022). Articles & Book Chapters. 3007.
American influences, Canadian realities : how "American" is Canadian legal education?
Title American influences, Canadian realities : how "American" is Canadian legal education? Document Type Book Chapter Source Publication Bartie, Susan, and David Sandomierski. American Legal Education Abroad : Critical Histories. Edited by Susan Bartie and David Sandomierski, New York University Press, 2021, https://doi.org/10.18574/9781479803606. Repository Citation Girard, Philip, "American influences, Canadian realities : how "American" is Canadian legal education?" (2021).
A History of Law in Canada, Volume One: Beginnings to 1866
Title A History of Law in Canada, Volume One: Beginnings to 1866 Description This book is the first of two volumes devoted to the history of law in Canada. This volume begins at a time just prior to European contact and continues to the 1860s, while volume two will start with Confederation and end at approximately 2000. The history of law includes substantive law, legal institutions, legal actors and legal culture.
"A Portrait of an SCC Tigress" by Philip Girard
Abstract Few readers likely need an introduction to Claire L’Heureux-Dubé or Constance Backhouse. L’Heureux-Dubé is the second woman appointed to the Supreme Court of Canada, while Backhouse is an internationally recognized feminist legal historian. What happens when you put these two women together, both icons and iconoclasts in their respective fields? You get a terrific biography of the former by the latter, Claire L’Heureux-Dubé: A Life, published by UBC Press and the Osgoode Society last fall.
"Mass Murder and Capital Punishment" by Philip Girard
Abstract Recent mass shootings in the United States have tended to confirm Canadians’ sense that such events can’t happen here. Similar events in Canada are not numerous, but those that have occurred are not well known. In particular, the biggest mass murder in Canada before Air India is almost unknown outside Quebec, where it occurred in 1949. It also involved an attack involving an airplane, but the murderer was motivated by misguided love rather than politics.
"Fluid Border Isn’t New" by Philip Girard
Abstract The sleepy town of Emerson, Man. has been much in the news recently as the entry point to Canada for refugees fleeing Donald Trump’s America. But this is not the first time Emerson’s role as a border town has thrust it into the limelight. In 1876, U.S. soldier Eugene Shinkle decided to cross into Canada at Emerson, where he proceeded to get very drunk and disorderly in a bar. Shinkle no doubt assumed he could blow off some steam beyond the reach of American military law.
Crown must pay costs after being ‘overly enthusiastic’
An Ontario Superior Court judge has ordered the provincial Crown to pay costs to a representative plaintiff over actions taken during cross-examinations during a motion in the certification process of the proposed class action. In Cirillo v. Ontario, 2018 ONSC 4359, Justice Edward Morgan ruled that the Crown was “overly enthusiastic,” when the Crown asked the representative plaintiff in the proposed class action, Robin Cirillo, for detailed records of her finances and her therapy records.
OCA upholds U.S. rabbinical court’s award
The Ontario Court of Appeal has upheld the enforcement of a New York rabbinical court’s award in a real estate dispute in Ontario, reinforcing the province’s role as a leader in international commercial arbitration law, say lawyers. In Popack v. Lipszyc, 2018 ONCA 635, an appellant, Joseph Popack of New York, and a respondent, Moshe Lipszyc of Ontario, had a 2005 dispute over a joint real estate venture, which included two Ontario shopping malls, Royal York Plaza and Burlington Mall.
Waterloo police officers take complaints to OCA
Three Waterloo police officers are taking their case to the Ontario Court of Appeal after a Superior Court judge denied them class action certification on the basis that the case did not fall under the court’s jurisdiction. In Rivers v. Waterloo Regional Police Services Board, Justice Deena Baltman wrote that it was “with some regret” that the court has no jurisdiction over the dispute but that it must be dealt with in labour arbitration or the Ontario Human Rights Tribunal.
LSO tribunal looks at mental health
A Law Society of Ontario tribunal has decided to move forward with the termination of a lawyer’s licence, in a decision that included a lengthy analysis of the lawyer’s mental health issues. The law society did, however, decide to allow the lawyer to surrender his licence, rather than having it revoked. The July 6 decision, Law Society of Ontario v.
Ruling dismissing libel action to be appealed
A prominent class action litigator turned political activist says he intends to appeal a Superior Court ruling that dismissed a libel action he brought against B’nai Brith Canada after it suggested in an online post that he advocated on behalf of terrorists.
Networking and the #MeToo movement
The #MeToo movement was brought to the forefront in 2017 following the allegations against Hollywood producer Harvey Weinstein. The movement is alive and well in Canada. Patrick Brown resigned as Ontario Progressive Conservative leader in January 2018 over allegations of sexual impropriety toward two young women. Kent Hehr, federal minister of sport and persons with disabilities, stepped down from cabinet over sexual harassment allegations.
A Law Society of Ontario tribunal has decided to move forward with the termination of a lawyer’s licence, in a decision that included a lengthy analysis of the lawyer’s mental health issues. Do you support moves by the regulator to recognize mental health
Jobsinlaw Jobsinlaw.ca is Canada’s go-to legal career site. By matching employers and recruiters with legal professionals, www.jobsinlaw.ca provides a cost-effective recruitment solution. Law firms, in-house legal departments and public sector organizations across Canada can find lawyers, legal professionals or legal support staff at all levels of qualification with jobsinlaw.ca.
Personal injury lawyers turn to litigation financing
Lawyers who represent plaintiffs in smaller personal injury firms say they are turning to specialized litigation financing to fund disbursements and expert witnesses, as well as other expenses. Lawyers point to financial challenges they say they are increasingly confronting within the personal injury practice. Plaintiff-side lawyers say the costs for disbursements have increased significantly in the past decade.
Insolvency disputes a growing area for litigation funding
A recent Quebec case saw the court approve a funding arrangement between a litigation financing company and an insolvent company in order to fund a lawsuit against the insolvent company’s largest creditor, with the financing company getting a share of the proceeds if successful. Lawyers say that the use of third-party financing in insolvency litigation is ripe for these kinds of litigation financing arrangements. In 9354-9186 Québec inc. (Bluberi Gaming Technologies Inc.) v.
Imperfection rules
If much of modern technology focuses on extracting the messiness and toil out of life (like automated cars and artificial intelligence, for example), then one could assume that the law exists to clarify matters when things, indeed, go wrong. And go wrong they will. As a colleague of mine recently said to me — humans are, by their very nature, imperfect. Our courts system is imperfect. Lawyers themselves are imperfect.
Lawyers advise against treatment loans
As governments have scaled back the insurance coverage available for medical treatments available to those who have been injured in accidents, treatment loans are becoming available to clients as a means of keeping treatments going until a trial or settlement. Many lawyers, however, are wary of these loans and will try to avoid them if possible.
Should cost protection insurance be mandatory?
As cost protection insurance becomes more common as part of litigation financing in Canada, lawyers have noted that, in the United Kingdom, lawyers are required to let commercial litigation clients know about its availability or they can be found negligent. Lawyers say it is already becoming good practice in Ontario to discuss cost protection insurance with clients.
A Toronto law firm will be removing names from hundreds of applications it receives from law students hopeful to land a summer position at the firm, in an effort to promote more diverse recruitment. Do you think this is a good idea? | Law Times
Jobsinlaw Jobsinlaw.ca is Canada’s go-to legal career site. By matching employers and recruiters with legal professionals, www.jobsinlaw.ca provides a cost-effective recruitment solution. Law firms, in-house legal departments and public sector organizations across Canada can find lawyers, legal professionals or legal support staff at all levels of qualification with jobsinlaw.ca.
Lawyers voice concerns about biometrics expansion
On July 31, the Canadian government will require biometric information from travellers to the country from Europe, the Middle East and Africa. Travellers from Asia, the Asia Pacific and the Americas will be required to give the information starting Dec. 31. Lawyers say this can create delays for those coming into Canada on business and there are potential privacy concerns for clients as the information is being shared with four other partner countries.
Stricter laws on impaired driving could impact immigrants, lawyers say
Changes to the federal Criminal Code could affect prospective immigrants who are convicted of impaired driving offences inside or outside Canada, lawyers say. Without intervention from federal Immigration Minister Ahmed Hussen, Canada could end up with a “draconian” imbalance between how offences related to impaired driving apply to citizens versus immigrants, say lawyers. On June 21, Bill C-46 received royal assent.
Former client suing family lawyer over report
A Whitby, Ont. man is suing his former family lawyer for allegedly failing to take proper steps to exclude a report written by an unqualified witness that contributed to him losing custody of his children. Mr. S is claiming lawyer Elizabeth Saad was professionally negligent in how she represented him in a custody battle, as she allegedly failed to alert the court to the limitations of the qualifications of Gregory Carter, a psychological associate.
Precedent-setting costs award upheld
Lawyers say a recent case, in which a deputy judge ordered an unsuccessful litigant to pay $21,000 in costs to a defendant who spent more than $158,000, exposes the inability of the Small Claims Court to impose high penalties on people who bring meritless litigation. In Lahrkamp v. Metropolitan Toronto Condominium Corp.
Right to be forgotten under debate
A recent position paper by the federal privacy commissioner is causing consternation among lawyers. In January, the Office of the Privacy Commissioner of Canada indicated in its draft position paper on online reputation that de-indexing and source takedown are mechanisms that could be used to enhance a person’s control over their online reputation, through the Personal Information Protection and Electronic Documents Act.
The Countdown to Legalization: Marijuana and labour/employment law
Jobsinlaw Jobsinlaw.ca is Canada’s go-to legal career site. By matching employers and recruiters with legal professionals, www.jobsinlaw.ca provides a cost-effective recruitment solution. Law firms, in-house legal departments and public sector organizations across Canada can find lawyers, legal professionals or legal support staff at all levels of qualification with jobsinlaw.ca.
A Tribute to Douglas Hay" by Philip Girard and Jim Phillips
On 5 and 6 May 2016, Osgoode Hall Law School and the York University History Department sponsored a symposium entitled “Law/Authority/History: A Tribute to Douglas Hay” to mark the recent retirement of Professor Douglas Hay. The call for papers circulated to legal historians in Canada and elsewhere, and a particular attempt was made to contact Professor Hay’s former graduate students.
"Newfoundland’s Constitution from Contact to King William’s Act" by Philip Girard
In his work The British Empire in America, published in 1708, the historian John Oldmixon observed casually that in Newfoundland, “there’s no need of much Law, for the Inhabitants have not much Land and no Money.”1 The premise was correct, but the conclusion did not necessarily flow.
"The Newfoundland-Canada Relationship Through the Lens of Legal History" by Philip Girard
Newfoundland legal history has tended to focus on the period prior to the achievement of representative government in 1832 and the existing literature dealing with more recent times is somewhat sporadic. Nor is there yet any comprehensive overview of Canadian legal history. This makes any effort to consider links between the two somewhat premature and necessarily impressionistic.
125-Year-Old Criminal Code Backwards, Progressive and Amusi" by Philip Girard
"This Act shall come into force on the first day of July, 1893." Thus begins the first edition of the Criminal Code of Canada. Here it sits, on my desk, a broken, dirty, tattered copy, published in 1892. It is a thing of beauty Here's the back story. The Spectator has its own library in our newsroom, for the exclusive use of our journalists.
"Lawyer’s Life an Enduring Legacy" by Philip Girard
Osgoode Home > Osgoode Digital Commons > Scholarship > Public Writing > 78
An Endangered Spec" by Philip Girard
The sigh of relief on the Atlantic coast could be heard all the way to Ottawa on October 17, 2016. On that day, Prime Minister Justin Trudeau announced the nomination of Justice Malcolm Rowe of the Newfoundland and Labrador Court of Appeal to the Supreme Court of Canada seat vacated by Justice Thomas Cromwell. Justice Cromwell’s replacement was to be the first appointed pursuant to a new process put in place by the Trudeau government.
A Hybrid Heritage" by Philip Girard
The Canadian legal profession emerged from the confluence of two distinct traditions: the American and the English. The colonies of British North America followed the pre-revolutionary American model of a unified legal profession, according to which all lawyers could practice as barristers and solicitors.
Justice Cromwell, Loyal to the Law" by Philip Girard
Title Editorial: Justice Cromwell, Loyal to the Law Publication Date 3-23-2016 Source Publication Chronicle Herald Description Justice Thomas Cromwell has announced his retirement from the Supreme Court of Canada, effective in September, saying his seven years on the highest court have left him believing more firmly than ever that an independent and effective judiciary is a cornerstone of democracy. Recommended Citation Girard, Philip.
"Supreme Court Justice Thomas Cromwell to Retire in September" by Philip Girard
Title Supreme Court Justice Thomas Cromwell to Retire in September Document Type Media Mention Publication Date 3-22-2016 Source Publication Metro News Description Supreme Court Justice Thomas Cromwell is retiring in September, setting the stage for Prime Minister Justin Trudeau's first appointment to the high court. Recommended Citation Girard, Philip.
"Law, Politics, and the Patriation Reference of 1981" by Philip Girard
Girard, Philip. "Law, Politics, and the Patriation Reference of 1981." Patriation and its Consequences: Constitution Making in Canada. Lois Harder and Steve Patten, eds. Vancouver: University of British Columbia Press, 2015. 115-136. Print.
New government a chance to fix long-troubled judicial " by Philip Girard
Girard, Philip. "That's History: New government a chance to fix long-troubled judicial selection process." Law Times (26 October 2015): http://digitalcommons.osgoode.yorku.ca/media_mentions/337
Origins" by Philip Girard
Girard, Philip, "Writing Canadian Legal History: Origins" (2013). Published Articles & Book Chapters. Paper 2083. http://digitalcommons.osgoode.yorku.ca/scholarly_works/2083
"History and Development of Equity" by Philip Girard
Title History and Development of Equity Document Type Book Chapter Source Publication The Law Of Trusts : A Contextual Approach, 3rd Edition Repository Citation Girard, Philip, "History and Development of Equity" (2015). Articles & Book Chapters. Paper 2401.http://digitalcommons.osgoode.yorku.ca/scholarly_works/2401
A ‘very Canadian coup’? Hardly" by Philip Girard
Osgoode Home > Osgoode Digital Commons > Osgoode History and Archives > Public Relations > Media Mentions > 198
Judging the Judges
If you read only English-language print media, you may just barely recall a reference to La Bataille de Londres: Dessous, secrets et coulisses du rapatriement constitutionnel when it came out in April of this year. In this retelling of the patriation saga of 1978–82 Frédéric Bastien argues for the critical importance of the British side of the story, using new evidence gleaned from official sources in the United Kingdom.
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