Canadian Law eJournal最新文献

{"title":"The Law Governing Related Party Transactions in Canada: Rules, Standards and Regulatory Scrutiny","authors":"Stéphane Rousseau","doi":"10.2139/ssrn.3760083","DOIUrl":"https://doi.org/10.2139/ssrn.3760083","url":null,"abstract":"Canada is an interesting laboratory to study the law governing related party transactions because of the distinctive features of its capital markets and its regulatory landscape. The ownership structure of Canadian corporations resemble more closely those of continental Europe and South East Asia than those of the United States. Further, deviation from the one share/one vote rule is widespread. Thus, the primary corporate governance problem relates to the risk that dominant shareholders extract private benefits of control at the expense of the corporation and its public shareholders. As for regulation, publicly-traded corporations are subject to provincial corporation and securities laws, which are largely harmonized at the national level. The paper reviews the law governing RPT in Canada, which is the product of corporate law and securities regulation. Although they are not prohibited, conflict of interest transactions are regulated by an intricate set of ex ante rules and ex post standards of review that impose procedural and substantive requirements. Specifically, the paper shows that the following fundamental questions lead to many answers: 1) Who is charged with the screening of RTP?; 2) How does the screening work?; 3) When does it operate? Against this backdrop, the paper analyses the role of procedural safeguards and substantive review by looking at two conflicting cases regarding the impact of majority of the minority approval. It also presents data on the use of majority of the minority approval by reviewing 79 transactions between 2013 and 2018 where this procedural safeguard was mandated. The anecdotal and empirical discussion serves to put majority of the minority approval in perspective with respect to its protective function. The analysis closes with a discussion of a recent initiative on the part of Canadian securities regulators, which translates into a heightened involvement in the review and oversight of conflict of interest transactions. On the one hand, this initiative may buttress the effectiveness of majority of the minority approval by reinforcing the procedural safeguards. On the other hand, it may have unintended effects on the protection of minority shareholders.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133270436","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Cooperative Federalism v Parliamentary Sovereignty: Revisiting the Role of Courts, Parliaments and Governments","authors":"Noura Karazivan","doi":"10.2139/ssrn.3489258","DOIUrl":"https://doi.org/10.2139/ssrn.3489258","url":null,"abstract":"This paper seeks to examine the tension between cooperative federalism and parliamentary sovereignty in the Canadian constitutional context. This tension has prompted scholars to encourage the emergence of a court-imposed duty of loyalty, or a duty to act in good faith, imposed on governments when cooperative arrangements come to an abrupt end. This paper argues that it should not be up for courts to infer from the Canadian Constitution such a duty, but rather up for Parliament, legislative assemblies and governments to really tackle the vulnerability of cooperative arrangements.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133698531","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Unclear Picture of Social Media Evidence","authors":"Lisa A. Silver","doi":"10.2139/ssrn.3487083","DOIUrl":"https://doi.org/10.2139/ssrn.3487083","url":null,"abstract":"This article considers the unclear picture of social media evidence in the courtroom and offers a snapshot glimpse into the digitized world where modern trial narratives reside. This will be done by highlighting the dissonance between the social media form of evidence and our evidential rules. This disconnect between principle and evidence obscures the pristine categorization of evidential rules and principles causing us to question the position of social media in the evidential space of the courtroom. Instead of fashioning social media evidence into a manageable evidential category, we must be amenable to creating a unique approach to the introduction of social media evidence. The objective of this article is to challenge our learned knowledge of the evidential world so that we may create a new evidential language for application to social media evidence. This new approach will be truer to the purpose and objective of evidence rules and will provide much needed judicial oversight in determining its admissibility.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126843333","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"How Data Gaps (re)Make Rural Broadband Gaps","authors":"H. Hambly, Reza Rajabiun","doi":"10.2139/ssrn.3427482","DOIUrl":"https://doi.org/10.2139/ssrn.3427482","url":null,"abstract":"This paper examines challenges to evidence-based decision-making in the design and implementation of rural broadband investment programs. Our focus is on Canada, but similar challenges are evident in the international literature. Based on proprietary telecommunication provider datasets, the Canadian Radio-television and Telecommunication Commission (CRTC) estimates that broadband services with advertised speeds that meet its basic universal service targets (50 Mbps download and 10 Mbps upload) are available to 84 percent of households in Canada. In rural areas however, services that meet CRTC’s speed targets are available to 37 percent of households.Moreover, effective speeds and service quality levels that suppliers deliver and users experience tend to fall well below the government’s aspirational targets. In response to demand for better broadband, a variety of initiatives are directing public investment to the deployment of regional and rural broadband networks, which are typically owned and operated by private companies. There remains a serious lack of relevant data and its effective use in rural broadband strategies and project management. Evidence from the literature suggest that this affects the degree and quality of geo-spatial and econometric analysis resulting in a limited empirical basis to allocate scarce public investments, engage consumers/communities, and assess the outcomes of rural broadband initiatives ex post. While investments in rural connectivity have vastly increased in recent years in Canada, this paper questions if the body of knowledge to inform these initiatives has grown sufficiently to ensure their effectiveness and sustainability. With examples from southern Ontario, Canada, we examine the relevant literature, characterize the broadband data challenge and discuss the importance of proprietary provider data cross-referenced with user experience data.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122026591","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"After the Hammer: Six Years of Meads v Meads","authors":"D. Netolitzky","doi":"10.29173/ALR2548","DOIUrl":"https://doi.org/10.29173/ALR2548","url":null,"abstract":"This article addresses the phenomenon of Organized Pseudolegal Commercial Arguments (OPCA) through a retrospective investigation of Meads v. Meads. The author begins by discussing whether Meads has met its objectives, and then proceeds with an analysis of the response to the Meads decision by various audiences, including courts, academics, the OPCA community, and the public. Then, the author examines Meads as a unique type of judgment that incorporates court knowledge as its foundation, allowing Meads, in part, to offer guidance to trial court judges. Finally, the author comments on the insight offered by Meads into the day-to-day realities faced by trial courts as they interact with self-represented individuals.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133832878","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Show and Tell: Rating the Fiscal Accountability of Canada’s Senior Governments, 2019","authors":"W. Robson, Farah Omran","doi":"10.2139/ssrn.3403658","DOIUrl":"https://doi.org/10.2139/ssrn.3403658","url":null,"abstract":"Canada’s federal, provincial and territorial governments raised and spent more than $810 billion in 2018 – around 40 percent of gross domestic product, or some $22,000 per Canadian. They provide services ranging from national defence and policing through social services such as health and education to income supports and business subsidies. Governments’ extraordinary powers to extract resources from taxpayers and coerce citizens make monitoring the behavior of elected officials and public officials – with meaningful opportunities to intervene if they misbehave – particularly important. In seeking to monitor the behaviour of agents who should be acting on their behalf, principals – citizens and taxpayers – have a number of tools. • the budgets governments present around the beginning of the fiscal year; • the estimates legislatures vote to approve specific programs; and • the audited financial statements governments present in their public accounts after year-end. In our assessment of the usefulness of these government financial documents, we assign letter grades for the quality of these numbers: how readily users can find them, understand them and use them to make informed decisions. In this year’s report, which covers reports and financial statements for fiscal year 2017/18, and budgets and estimates for 2018/19, New Brunswick tops the class with an A+, Alberta ranks second with an A and British Columbia third with an A–. At the other end of the scale are Manitoba with a D+ and the Northwest Territories and Nunavut, each scoring an F. The federal government (B+), Saskatchewan (B), Ontario, Nova Scotia and Yukon (B-) could join the top rank with relatively small improvements, such as moving key numbers closer to the front of their budgets, more timely presentation and publication and better reconciliation between their budgets and their main estimates. We are glad to report that, over time, the grades earned by the senior governments have improved. Two decades ago, none of Canada’s senior governments budgeted and reported its revenues, expenses and bottom line on the same accounting basis; today, consistent accounting is the rule. Among the positive highlights worth noting this year is a marked improvement in Ontario’s score, thanks to the province cleaning up problems with its accounting that had prompted qualified opinions on its financial statements from the provincial auditor general. A key aim of this annual survey is to encourage further progress. The remaining deficiencies and instances of backsliding are fixable, as the examples of the leading jurisdictions show. If Canadians demanded better financial reporting from their governments, they could get it.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131581411","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Coloniality of Investment Law","authors":"D. Schneiderman","doi":"10.2139/SSRN.3392034","DOIUrl":"https://doi.org/10.2139/SSRN.3392034","url":null,"abstract":"Did colonialism end with decolonization? Might it, instead, have taken on new and variable forms, including legal forms? Have narratives of European supremacy been institutionalized via methods of legal rule, in particular, rule under international investment law? This paper explores such questions, inquiring into whether international legal rule continues to be in the pursuit of protecting the economic interests of metropolitan interests. The paper draws upon descriptions of colonial rule by, among others, the Tunisian writer Albert Memmi. By pulling on these narrative threads, one discovers connections between historic colonialism and the contemporary regime for the protection of foreign investment. Continuities concern such things as (i) profitability and privilege, (ii) a discourse of improvement, (iii) distrust of local self-rule, and (iv) construction of legal enclaves. Each of these features of colonial rule, I argue, are inscribed in the discourse and practices of investment treaty law and arbitration.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129600310","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Digital Services Tax: A Conceptual Defense","authors":"W. Cui","doi":"10.2139/ssrn.3273641","DOIUrl":"https://doi.org/10.2139/ssrn.3273641","url":null,"abstract":"Since 2018, the UK government, the European Commission, and several European national governments have advanced bold proposals for a new “digital services tax” (DST), with the aim of capturing profits earned by multinationals that reflect value contributed by users of digital platforms. I offer a novel set of arguments in support of the DST, which appeal to both efficiency and fairness considerations. In particular, the DST would allow location-specific rent (LSR) earned by digital platforms to be captured by the countries in which such rent arises. I argue that platform LSR is often hidden from view under the traditional international income taxation paradigm, due to that paradigm’s focus on physical presence, source of payment, and profit allocation among related entities. Moreover, that paradigm ignores a basic intuition about how rent accruing to mobile intangible assets should be assigned: when the deployment of a technology is non-rival with respect to multiple locations, it is both efficient and fair to assign any rent earned from the technology’s deployment with respect to a given location to that location. \u0000 \u0000The principle of taxing platform rent where it arises is both distinct from and superior to the principle of allocating profit to “destination” (i.e. buyer or consumer) jurisdictions. Platform rent can arise in origin, destination, or residence jurisdictions, and the location of “user value creation” is not reducible to consumer location. Moreover, claims to taxing rights based on the location of rent inherently appeals to equity considerations, whereas destination-based apportionment generally ignores equity issues in allocation. I discuss misunderstandings of DST proposals, and reject certain common assertions about the DST’s likely effects, including that DST costs will simply be passed on domestic consumers or producers, and that a revenue-based tax is inherently flawed. Finally, I suggest that the potential of the DST to reduce excessive entry in platform markets also deserves further consideration.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127647291","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Watchful Eyes: National Security Review and Oversight in Canada","authors":"Leah West","doi":"10.2139/ssrn.3449183","DOIUrl":"https://doi.org/10.2139/ssrn.3449183","url":null,"abstract":"For almost two decades, the reach of Canada’s intelligence and security community continued to expand in this vein without any significant enhancement to the review bodies that serve as a check on its power. Until 2019, only the RCMP, CSIS and CSE were subject to regular national security review, while other organizations like CBSA, DND, and DFAIT underwent sporadic review by commission of inquiries established to investigate catastrophic failures in the system; commissions which consistently identified Canada’s siloed approach to national security review as a priority for reform. This chapter begins by setting out the definition of review and oversight, followed by the history of Canada’s review bodies. It then details the dramatic remodelling of review and oversight in Canada and describes the structure, mandates and resources of the National Security and Intelligence Committee of Parliamentarians (NSICOP), the National Security Intelligence Review Agency (NSIRA), and the office of the Intelligence Commissioner (IC). It is too early to identify the impacts these reforms will have on Canada’s intelligence and security community thus, this Chapter concludes with a brief discussion of the factors that could impact their success.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"48 11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134330855","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Higher Authority: Canada's Cannabis Legalization in the Context of International Law","authors":"A. Eliason, R. Howse","doi":"10.2139/ssrn.3262773","DOIUrl":"https://doi.org/10.2139/ssrn.3262773","url":null,"abstract":"Recreational cannabis is being decriminalized, deregulated and even legalized across a growing number of jurisdictions throughout the world. This article addresses the international law and policy implications of this trend, examining three international law frameworks — the drug control and anti-trafficking framework of the United Nations drug conventions, international human rights law, and the international economic law regime, in which the World Trade Organization (WTO) is central. In this article, we use Canada’s legal regime for cannabis liberalization as a case study that illuminates the tensions, but also the unexplored complementarities, between the different international legal regimes or orders that affect cannabis legalization. We argue that although the drug conventions appear to provide unequivocal requirements for drug criminalization, a closer read of the treaty texts suggest otherwise, particularly when read together with the international human rights obligations. At the same time, international economic law, which has largely been ignored in the discussion of cannabis legalization, demonstrates certain inconsistencies with the Canadian cannabis legalization scheme that must be taken into account in further legalization efforts by other states.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"63 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115687663","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}