Canadian Law eJournal最新文献

{"title":"A Retrospective on the Contributions of Neil Brooks: So Far","authors":"K. Brooks","doi":"10.60082/2817-5069.2814","DOIUrl":"https://doi.org/10.60082/2817-5069.2814","url":null,"abstract":"This introduction to a symposium in honour of Neil Brooks originated in opening remarks at a workshop held on 10-11 May 2013.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"71 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127397899","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":"Bending Canada's Healthcare Cost Curve: Watch Not What Governments Say, But What They Do","authors":"W. Robson","doi":"10.2139/SSRN.2505228","DOIUrl":"https://doi.org/10.2139/SSRN.2505228","url":null,"abstract":"Canadians should hold off on declaring a slowdown in government healthcare spending to sustainable growth rates, says a C.D. Howe Institute report released today. In “Bending Canada’s Healthcare Cost Curve: Watch Not What Governments Say, But What They Do,” author William B.P. Robson finds that reports of slower growth in healthcare spending have been repeatedly wrong-footed by chronic budget overshoots. So recent estimates that healthcare spending is no longer growing faster than the economy may also prove optimistic.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"50 6","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"113981946","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":"Canada's Equalization Formula: Peering Inside the Black Box...And Beyond","authors":"James P. Feehan","doi":"10.11575/SPPP.V7I0.42479","DOIUrl":"https://doi.org/10.11575/SPPP.V7I0.42479","url":null,"abstract":"Ontario only started receiving equalization payments, for the first time in its history, in 2009. As soon as Ontario slipped into that “have-not” status, the federal government imposed a cap on the growth of equalization payouts. That led to substantial federal savings, but has cost Ontario and other recipients what would have been much larger payments since then. The federal government’s move to rein in the potential ballooning cost of equalization may have been understandable, from a cost-control perspective, but it ultimately defied the very purpose of equalization. The fixed-growth rule imposed by the federal government is just one of several elements within the current equalization arrangement that should be corrected. The federal government should end that practice and absorb any resulting increase in cost. However, if that cost is onerous, then it could consider adjustments of its other major transfers to the provinces – Canada Health Transfer and the Canada Social Transfer – and reduce those per-capita transfers to provinces that are well ahead of the equalization norm. That would be better than shifting the entire burden to the those below the norm. Another flaw in the current equalization arrangement is the inclusion of Crown-owned hydro corporations’ remittances of earnings to their provincial owners in the natural resources category of equalization calculations. Many of these corporations are not simply energy producers, but are also vertically integrated, with transmission and retail sales operations, and some have no resources at all, but rely instead on fuel purchased in the marketplace. Moreover, taxes paid by private energy corporations are not considered part of the natural resource category but are included in the business income tax category. This means the formula is essentially inconsistent, discriminating based on the ownership profile. Hydro remittances should be removed from the natural resource revenue category in the formula that calculates equalization. They should go in the business income tax category, just as do the earnings of other commercial Crown corporations and taxes paid by private businesses. Going beyond the formula, it is time to re-consider the practice of exempting commercial Crown corporations from corporate income taxation. A more fundamental and long-recognized problem is the incentive for provinces receiving equalization payments to underprice the water-rental rates they charge for hydro production. Lowering water-rental rates has the effect of reducing provincial hydro revenues, which can entitle those provinces to larger equalization payments, while benefitting residents with cheaper hydro rates. Looked at empirically, “have-not” provinces do charge lower average rates for hydro than do “have” provinces, lending credence to the criticism that non-recipient provinces subsidize cheaper energy for residents of recipient provinces. The increased development of competitive North American wholesale elect","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115842613","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":"Outliving Our Savings: Registered Retirement Income Funds Rules Need a Big Update","authors":"W. Robson, A. Laurin","doi":"10.2139/SSRN.2446096","DOIUrl":"https://doi.org/10.2139/SSRN.2446096","url":null,"abstract":"Many retirees face dramatic erosion of their savings due to outdated government rules, says a new C.D. Howe Institute report. In “Outliving Our Savings: Registered Retirement Income Funds Rules Need a Big Update,” authors Alexandre Laurin and William Robson urge the government to re-visit its rules requiring mandatory minimum withdrawals from registered retirement income funds (RRIFs) and similar accounts, to protect Canadians from outliving their savings.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-06-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134193921","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":"Access to Post-Secondary Education Among the First and Second Generation Children of Canadian Immigrants","authors":"R. Finnie, Richard E. Mueller","doi":"10.2139/ssrn.2462339","DOIUrl":"https://doi.org/10.2139/ssrn.2462339","url":null,"abstract":"This research exploits the uniquely rich Youth in Transition Survey to investigate access to post-secondary education (PSE) among the children of Canadian immigrants, including both (i) those who came to this country as immigrants themselves by age 15, and (ii) those who were born in Canada to immigrant parents. Both groups are, overall, considerably more likely to attend PSE, university in particular, than non-immigrant youth, but the patterns vary a great deal by source country, with the Chinese, African and certain other Asian groups having especially high rates. The immigrant differences are partly explained by certain demographic characteristics of their families (e.g., province and area size of residence and family structure), by the relatively high education levels of their parents, and other observable factors such as parental aspirations regarding their children’s education. However, some significant differences remain even after controlling for these and other factors.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"106 ","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"113989949","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 Consideration Which Happens to Fail","authors":"Andrew Kull","doi":"10.60082/2817-5069.2756","DOIUrl":"https://doi.org/10.60082/2817-5069.2756","url":null,"abstract":"Recent English commentary employs the timeworn expression “failure of consideration” in an unprecedented way. It can now designate an expansive residual category of grounds for restitution: at its fullest, “the failure to sustain itself of the state of affairs contemplated as a basis” for a transaction by which one party is enriched at the expense of another. (Because the result is plainly to incorporate a civilian-style “absence of basis” test within common-law unjust enrichment, the new “failure of consideration” carries an incidental implication for Canadian restitution law: if Garland v. Consumers’ Gas really announced a shift from common-law “unjust factors” to civilian “absence of basis,” the change may not make that much difference.) Contrasting approaches to “failure of consideration” illustrate a broader difference in attitudes toward “restitution in a contractual context”: English law looks “off the contract” in situations where US law finds answers in the contract itself.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"112 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124239164","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":"NAFTA's Approach to Public Services","authors":"J. Vanduzer","doi":"10.2139/SSRN.2389152","DOIUrl":"https://doi.org/10.2139/SSRN.2389152","url":null,"abstract":"Public services are treated differently in the North American Free Trade Agreement (NAFTA) compared to the WTO General Agreement on Trade in Services (GATS) and European Union (EU) trade treaties. The approach in NAFTA, which is followed in many bilateral and regional agreements worldwide, has three main distinctive characteristics: 1. NAFTA is a negative list agreement – meaning that all of the obligations in the treaty, including those related to services and investment, apply to all state actions except to the extent specifically carved out through reservations or exceptions. GATS and EU trade treaties to date are positive list agreements in which many obligations only apply to sectors listed by each party. 2. NAFTA contains no general exception from all treaty obligations for public services. There is no exception for services delivered in the exercise of governmental authority as is found in the GATS and many EU trade treaties, nor is there any unifying concept of public services in the treaty. Instead, there are a variety of limited exceptions and country-specific reservations that exclude the application of certain treaty obligations to some identified kinds public services and to specific measures that may be related to public services, like subsidies. 3. NAFTA contains comprehensive obligations relating to investment, which are not found in the GATS or EU trade treaties. These obligations are similar to those found in the bilateral investment treaties of EU member states.Because it relies on reservations for lists of services instead of a general exception that excludes all services that have the character of public services, NAFTA’s protection of state regulatory freedom in relation to public services is arguably more certain but over-inclusive for public services that are named in reservations and under-inclusive for public services that are not specifically named. Some public service activities, like waste removal, are not the subject of any special rules. All NAFTA’s investment and services obligations apply to these services. Others, like postal services, are subject to reservations from some obligations but some of these apply to only one country. Some NAFTA obligations, notably the Parties’ obligations not to expropriate investments without compensation and to provide fair and equitable treatment to investments, apply to all public services. No reservations are permitted. The broad scope of NAFTA’s investment obligations and their ability to constrain the public service policy choices of NAFTA countries render their application to public services a particular concern. NAFTA has not be updated to adopt some of the limitations on investment obligations that that Canada and the US now routinely incorporate in their treaties, such as a specification of when an indirect expropriation occurs and, in Canada’s case, the application of GATT Article XX-like exceptions to investment obligations.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133555756","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":"Applying the Principle of Proportionality in Employment and Labour Law Contexts","authors":"Pnina Alon-Shenker, G. Davidov","doi":"10.7202/1022312AR","DOIUrl":"https://doi.org/10.7202/1022312AR","url":null,"abstract":"The principle of proportionality, which is designed to limit abuse of power and infringement of human rights by governments and legislatures, has become a fundamental and binding legal principle in the jurisprudence of many countries. Ever since the seminal R. v. Oakes decision, when the Supreme Court of Canada interpreted section 1 of the Canadian Charter of Rights and Freedoms as entailing a three-step proportionality test, proportionality has become an important pillar of Canadian law. This article argues that the principle of proportionality actually extends, and should extend, to the private sphere—imposing limitations on employers and trade unions when using their powers. It first argues, at a descriptive level, that proportionality already plays a significant role (although often not explicitly) in various Canadian labour and employment law contexts, a role not sufficiently acknowledged thus far. It then turns to the normative level and explores the justifications for extending the application of proportionality to the private sphere and more specifically to the employment relationship. The article advocates a more explicit use and a structured application of the three-stage proportionality test in various employment and labour law contexts.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115300000","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":"Taxing by Default","authors":"E. Satterthwaite","doi":"10.7202/1022311AR","DOIUrl":"https://doi.org/10.7202/1022311AR","url":null,"abstract":"This paper is the first in the Canadian legal literature to address “tax elections”, which bestow upon taxpayers the ability to choose among two or more available tax treatments for a single taxable event. I argue that policymakers should adopt a rebuttable presumption in favour of setting default treatments according to the preferences of a majority of eligible taxpayers, unless a “penalty default” structure can be shown to convey sufficiently valuable information to the government. To illustrate how such a presumption would work in practice, I apply it to two similar but inconsistently structured tax elections in the Income Tax Act relating to transfers of property to a spouse and to a corporation (subsections 73(1) and 85(1), respectively). I find that the design of subsection 73(1) is sound—its majoritarian default of tax-deferring “rollover” treatment avoids unnecessary transaction costs and squanders no information-forcing role. On the other hand, subsection 85(1) is counter-majoritarian, and the information disclosed jointly by taxpayers and corporations via the 85(1) election can be obtained at lower cost by requiring corporations to routinely report information about contributions of property. Mandatory reporting would also bolster the government’s anti-avoidance efforts. Thus, amending subsection 85(1) to reverse its default treatment would make an important corner of the income tax less costly and, at the same time, more equitable.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125347250","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":"Sortition As a Means to Fight Corruption","authors":"David Litvak","doi":"10.2139/ssrn.2255825","DOIUrl":"https://doi.org/10.2139/ssrn.2255825","url":null,"abstract":"Electoral democracy is in crisis. The use of sortition in our political systems could be a key to renewing and deepening democracy. But how to do so? And where to start? In this paper, I explore the idea that using sortition to address the problem of corruption could be a first step. Why? For two reasons. First, corruption of elected officials is an internal inconsistency of electoral democracy – it cannot be resolved adequately through electoral institutions. Second, there is also a large consensus on the fact – everybody agrees – that corruption is a problem. I suggest granting the power to convene an Investigation Commission to a randomly selected citizen body. This body should also nominate the Commission’s head and receive its recommendations. I also discuss the idea of a Citizens’ Court to directly address the problem of corruption of elected officials. This broad jury would judge and sanction corrupted elected officials. Taking Quebec’s ongoing corruption saga as an example, I also try to see how the system would work in reality and, finally, where the system, once put into place, could lead to.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115313936","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}