University of Toronto Law School Faculty Blog

Toronto: the First Decade

Cross-posted on Prof. Ariel Katz's blog.  

Ten years ago I landed in Toronto with my wife and an 11 months old son. I left my job as a staff lawyer at the Israeli Antitrust Authority and arrived to Toronto to become a student again at UofT’s Faculty of Law. A couple of days later I had a meeting with Prof. Brian Langille: now my colleague, then the Associate Dean, Graduate Student. The meeting was part of a routine procedure for all incoming graduate students, but nonetheless, it was a sign for a great start.  Not that I had never had meetings with professors in my earlier studies, but never had the head of the program initiated them upon my arrival, so I had a feeling that this was going to be a different experience.

Prof. Ed Morgan: "‘Bonus’ zoning and the development approval game"

This commentary was first published in The Lawyers Weekly on August 26, 2011.

What does a property owner do to build a high density condo/retail development on its parcel in Brampton, Ontario - the heartland of suburban sprawl - or to build a low density subdivision on its green field in Markham, Ontario - the capital of 'new urbanist' design? It does what few applicants for a state-issued license would ever think of doing: it makes a deal.

As those in the field well know, deal-making is authorized under section 37 of the Planning Act. What Canadians lightly dub "bonuses", and Americans more darkly label "exactions", have become an integral part of the development approval game. For owners and communities, the game is one of materially high stakes; and for constitutional theorists, the struggle between an individual's rights and the collectivity's needs are as high as the normative stakes can get.

As a starting point, the courts have ensured that no personal gain can be bargained for by officials in a conflict position. Moreover, the Ontario Municipal Board has expressed the view that section 37 bargains must be "commensurate with the additional density or development rights" achieved in the application, and that city officials keep in mind that "the public should receive some tangible benefit." Beyond that, however, just about any deal goes.

Prof. Jacob Ziegel - "The right way to pick Supreme Court judges"

This commentary by Prof. Emeritus Jacob Ziegel was first published in the National Post on August 19, 2011.

Ian Binnie and Louise Charron announced their intention to retire from the Supreme Court of Canada at the end of August more than three months ago. Yet it was only on Aug. 5 that the Minister of Justice announced the appointment procedure the federal government intended to follow in appointing their successors on the Court.

A starved media fell on the announcement enthusiastically, but failed to ask some relevant questions. Will the proposed selection procedure result in the choice of the best-qualified candidates and, if the answer is no, what would be a better procedure? What role does the Supreme Court of Canada play in Canada’s constitution and what qualities should we look for in appointments to the Supreme Court?

There’s much reason to doubt that the federal government has chosen the procedure best calculated to lead to the appointment of the best qualified candidates. Stripped of all the rhetoric, it seems safe to anticipate that the successful candidates will be those whose assumed legal and constitutional philosophies appeals most to Prime Minister Harper and who meet his criteria of judges “who apply the law and don’t make it.”

Prof. Ian B. Lee: Two myths about corporate political speech

This opinion piece was first published in the Spring/Summer 2011 issue of Nexus magazine.

In the debate about whether political donations and advertising by corporations should be permitted in a democracy, there are two unhelpful but tenacious myths.

One of them is that “there is no such thing as too much speech,” to quote U.S. Supreme Court Justice Antonin Scalia. The other myth is that corporate political involvement is inherently illegitimate, because corporations are merely “artificial persons,” creatures of the state. The first myth is advanced by the supporters of corporate political speech, while the second is put forward by its opponents. Neither is helpful.

If individuals had unlimited time and attention spans, there would indeed be no such thing as too much information. But in the real world, people’s time and attention are scarce resources, and the relative size of the communication budgets devoted to rival arguments can therefore be expected to have an impact on their reception by citizens. That’s just Advertising 101. So there’s a real question whether especially well-financed messages need to be regulated, so that other messages can be heard too.

As for the second myth, the case for corporate political speech doesn’t in fact depend on thinking of corporations as “persons.” On the contrary, what’s important about corporate speech is that, like everything else the corporation does, it reflects the aggregated preferences and interests of large numbers of real people who transact through corporations. That’s Corporations 101.