Professors Bethany Hastie, Cherie Metcalf, Ivan Ozai, and Darryl Robinson are pursuing newly funded research on labour rights and access to justice, public trust in the courts, tax avoidance, and accountability for serious environmental harm, respectively.
Hastie’s and Metcalf’s work is supported by The Canadian Foundation for Legal Research, while Ozai and Robinson received support through SSHRC Institutional Grants.
Labour rights, access to justice, and the use of the notwithstanding clause
Hastie’s project, “The Use of Section 33 to Override Charter Rights and Its Implications for Access to Justice: A Case Study of Labour Laws” (with co-investigator Dia Dabby, Université du Québec à Montréal), will examine how governments in Canada have recently used the notwithstanding clause (Section 33 of the Canadian Charter of Rights and Freedoms) to pass laws that knowingly violate constitutional labour rights.
In Alberta, for example, the government used Section 33 just last year to end a teachers’ strike through back to work legislation, which is now being challenged through the courts. The Ontario government used the clause in 2022 in an attempt to end an educational workers’ strike, but later withdrew the bill after strong public opposition. And in Québec, Bill 3, currently moving through the legislative process and soon to become law, proposes new limits on unions, including restrictions on their ability to bring legal challenges and on how union dues can be used for political activities.
These examples reveal a troubling trend of using Section 33 in an attempt to avoid constitutionally enshrined labour rights.
“While unions are often better resourced than individual workers, legal challenges are still costly, complex, and time consuming,” says Hastie, Director of the Faculty’s Centre for Law in the Contemporary Workplace (CLCW). “The use of the notwithstanding clause exacerbates this by limiting meaningful court review, weakening trust in the legal system, and deepening existing inequalities in access to justice.”
The project will focus on how use of the notwithstanding clause exacerbates already-existing access-to-justice barriers for workers and unions seeking to challenge government interference with labour rights. It aims to clarify the legal limits of Section 33; examine how it is being used in labour disputes; assess its impact on public trust and democracy; and provide guidance for policymakers, courts, and advocates seeking to protect constitutional accountability and workers’ rights.
Hastie will use her CFLR funding to hire a JD student to assist with all phases of the project, including research, analysis, and production of research outputs. Among various means of disseminating the research results, she will present the study’s findings through the CLCW.
Political criticism of courts and public confidence in the justice system
Metcalf’s project, “The Rule of Law & Public Perception of the Courts,” examines how political attacks on courts and judicial decisions affect public trust in the justice system, and what courts and legal actors can do to strengthen confidence in judicial independence.
While lawyers generally view courts and judges as trustworthy decision makers, public confidence in the courts has been declining. This trend is most visible in the United States, but politicians in Canada have begun openly criticizing court decisions too, claiming that judges are making illegitimate rulings or decisions that are out of step with public opinion.
In recent months, premiers in Alberta, British Columbia, and Ontario have made public comments questioning the role of judges in interpreting laws and assessing facts. In Alberta, Premier Danielle Smith has proposed legislation — including the Alberta Sovereignty within a United Canada Act and changes to the Referendum Act — that would move some constitutionally significant decisions from courts to governments or even to the public through referenda. These developments have prompted normally reserved judges and legal organizations to speak out publicly in defence of judicial independence.
“This research project asks two central questions,” says Metcalf, the Faculty’s Associate Dean, Research. “First, what contributes to the likelihood of political critiques that can potentially undermine public confidence in the rule of law and the role of the courts? Second, what can courts or other participants in the justice system (such as lawyers’ or judges’ associations) do to help reinforce public confidence in the courts?”
To answer the first question, the project will examine media reported controversies where politicians criticized courts or judges. By studying patterns across different cases, areas of law, and time periods, the research will explore whether certain types of decisions attract political backlash more than others or whether these attacks are driven mainly by political advantage.
To address the second question, the project will use surveys and insights from psychology and behavioural economics to study how political attacks influence public trust, and whether clearer communication from courts, judges, lawyers, and legal organizations can help counter misinformation.
Support from the CFLR will allow Metcalf to hire JD student RAs to assist with research on both questions.
“Public confidence in the justice system and public belief in the legitimacy of judicial decision-making is foundational to the rule of law,” she says. “This project aims to better understand how serious current threats are and what strategies can help preserve the public’s trust.”
Tax avoidance and the limits of judicial interpretation
Ozai’s project, “Judicial Construction and the General Anti-Avoidance Rule,” will study how courts respond when individuals or corporations use complex planning strategies to avoid taxes while technically following the law. Although these strategies may comply with the literal wording of tax rules, they can undermine the broader goals of fairness and equal treatment that tax systems are meant to promote.
To address this issue, courts rely on the General Anti Avoidance Rule (GAAR), a legal tool that allows them to look beyond formal compliance and assess whether a transaction defeats the law’s purpose.
Despite its importance, GAAR is applied inconsistently. Judges must decide what the “purpose” of tax legislation really is and whether a given strategy frustrates that purpose. If this purpose is defined too narrowly, aggressive planning continues unchecked; if defined too broadly, courts risk overstepping their role. Ozai’s project tackles this unresolved tension by systematically examining how courts reason through these cases in practice.
“This research fills a significant gap by providing a structured overview of how Canadian courts use GAAR,” Ozai says. “Rather than focusing on individual decisions, the project maps patterns across many cases to identify recurring approaches, inconsistencies, and underlying assumptions. This makes it possible to evaluate whether GAAR operates as a coherent safeguard within the tax system or functions unpredictably.”
The project builds on Ozai’s earlier SSHRC-funded work on fairness and legitimacy in international tax policy, extending those concerns to the domestic level. In both contexts, the central question is how institutions can maintain public trust and equitable outcomes when sophisticated taxpayers exploit formal rules.
Using a team based research approach, the project will compile and code a comprehensive database of recent Canadian GAAR cases and analyze trends in judicial reasoning. More broadly, the findings will contribute to debates about how rules should be interpreted when strict adherence to wording conflicts with underlying social goals.
Defining and enforcing ecocide under international law
Robinson’s project, “Solving the Last Puzzle of Ecocide: Enabling a Transnational Wave of Environmental Enforcement Laws,” addresses global destruction of the environment and how societies can better hold accountable the most egregious wrongdoers.
Around the world, there is growing support for recognizing “ecocide” as a serious crime, rather than treating extreme environmental harm as a mere regulatory infraction. The goal of the ecocide movement is to reflect the real and lasting damage such harm causes to ecosystems, human health, and vulnerable communities, and ultimately to help shift social attitudes around environmental responsibility.
Momentum behind ecocide law has grown rapidly. Many countries in Europe, Latin America, and elsewhere are actively considering or drafting ecocide legislation. However, modern societies depend on activities such as farming, energy production, and infrastructure development that inevitably affect the environment. The central unresolved question is how to clearly distinguish between environmental impacts that may be socially necessary, and damage that is so excessive, unjustified, or reckless that it warrants criminalization.
“This project tackles the ‘last puzzle’ of ecocide: developing a clear, workable way to define when environmental harm crosses the line into criminal conduct,” Robinson says. “Some legislative proposals have struggled because they were too vague or overly broad, leading those efforts to stall or be weakened. Solving this problem is essential for laws that are both effective and fair.”
The research builds on Robinson’s extensive international experience with ecocide law, including advising governments and assisting prosecutors investigating environmental war crimes. The project takes a comparative approach, drawing lessons from environmental decisions in Latin America, Indigenous rights frameworks, human rights law, and real world enforcement efforts.
Ultimately, the project aims to unlock a new wave of environmental enforcement laws worldwide and to influence policymakers, scholars, and the public in both the Global North and South.
Ozai and Robinson will use their SSHRC Institutional Grant to support research assistants for their project, publication of peer reviewed articles, and conference presentations. These projects will lay the groundwork for them to apply for a multi-year SSHRC Insight Grant in Fall 2026 to further their research on their respective topics.