OSGOODE HALL LAW JOURNAL最新文献

{"title":"Equity: Conscience Goes to Market by Irit Samet","authors":"Luke Devine","doi":"10.60082/2817-5069.3637","DOIUrl":"https://doi.org/10.60082/2817-5069.3637","url":null,"abstract":"Abstract In first-year Contract Law, I was mildly bemused to learn that from approximately the fourteenth to nineteenth century, England found itself with two separate court systems dispensing two separate bodies of law. There was the familiar, predictable Common Law, and then there was “Equity,” dishing out relief to deserving parties as a matter of good “conscience.” To the green law student who expected this profession to provide hardline rules, Equity’s doctrines appeared annoyingly vague. Further, it seemed incongruous with the rule of law (ROL) that, even after the fusion of the two court systems, Equity endured as a doctrinally distinct body of law.","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46575490","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":"Two Stories About Shareholders","authors":"Bryce C. Tingle","doi":"10.60082/2817-5069.3632","DOIUrl":"https://doi.org/10.60082/2817-5069.3632","url":null,"abstract":"Corporate law contains two contradictory stories about the role of shareholders. In one, the shareholders are a useful countervailing force against the self-interested behaviour of corporate agents. In the other, shareholders lack the motivation, information, and proper incentives to contribute to the good governance of business corporations. Both stories are true on occasion, but is one generally more true than the other? Currently, developments in corporate and securities law are predicated on the idea that shareholders are, generally, a positive force in corporate governance. This seems to be a corollary of agency cost theory, the dominant paradigm for understanding the relationships between corporate actors. This article reviews the body of empirical research on the outcomes of the various forms of shareholder activism. Proposals, proxy campaigns, and takeovers represent the most impactful and costly forms of shareholder engagement with corporations. As it happens, the empirical evidence does tend to strongly support one of the two stories about the role of shareholders, but it is not the one currently dominating law reform efforts. If the character of shareholder interventions generally supports the story that shareholders lack the proper incentives and information to contribute to positive business outcomes, then much about the current regulatory scene needs to be re-evaluated. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol58/iss1/2","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43389154","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":"Law and Intangible Cultural Heritage in the City by Sara Gwendolyn Ross","authors":"H. Chumak","doi":"10.60082/2817-5069.3636","DOIUrl":"https://doi.org/10.60082/2817-5069.3636","url":null,"abstract":"In Law and Intangible Cultural Heritage in the City, Sara Gwendolyn Ross, a Killam Postdoctoral Laureate and Social Science and Humanities Research Council (SSHRC) Postdoctoral Fellow at the Peter A. Allard School of Law, illuminates urban spaces with intangible cultural value that is often overlooked and unprotected. The spaces to which Ross refers “are found on street corners, in neighbourhood haunts, in parks, in faded basement pubs, up creaky sets of stairs in live-work lofts overlooking the street, behind the doors of a repurposed factory space, in crisp and bright coffeeshops, loud music halls, pulsing nightclubs, shiny supper clubs.” She argues that these sites and their associated activities merit more attention, as “they are often the planes within which inequality in the city...plays out for most urban inhabitants.” This book review is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol58/ iss1/6","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41780445","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":"Drug-Impaired Driving in Canada by Nathan Baker","authors":"Keneca Pingue-Giles","doi":"10.60082/2817-5069.3639","DOIUrl":"https://doi.org/10.60082/2817-5069.3639","url":null,"abstract":"Abstract In anticipation of federal legalization of cannabis in Canada, Nathan Baker provides an excellent overview and a detailed account of how the federal and provincial governments propose to detect, investigate, and prosecute drug-impaired driving to ensure the safety of the public on its roads. Drug-impairment tests, such as Drug Recognition Evaluations (DRE) and Standardized Field Sobriety Testing (SFST) have been statutorily embedded in our criminal justice system for over ten years. However, the need for heightening awareness of these testing procedures, training for police officers who administer these tests, and education on the accuracy, validity, and credibility of drug detection technologies has been brought to the forefront of criminal law discussions as a result of legalized cannabis use. The author’s goal is to “provide a better understanding of the science and how it should relate to the creation and interpretation of the law in Canada surrounding impaired operation by drugs.” As such, Baker provides in-depth detail surrounding the efficacy of drug-impairment testing.","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46304803","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":"Corporate Friction: How Corporate Law Impedes American Progress and What To Do About It by David Yosifon","authors":"Cameron Teschuk","doi":"10.60082/2817-5069.3638","DOIUrl":"https://doi.org/10.60082/2817-5069.3638","url":null,"abstract":"David Yosifon's first book, Corporate Friction: How Corporate Law Impedes American Progress and What To Do About It, provides a unique perspective on the corporate purpose debate. The corporate purpose debate can be summarized as a search for the answer to a seemingly rudimentary question: “For Whom is the Corporation Managed”? Yosifon presents a well-researched argument that U.S. corporations should be managed for the best interest of stakeholders, opposed to shareholders. This distinction is known as the shareholder-stakeholder best-interest trade-of. Yosifon supports his argument with a refned analysis of the assumptions and norms that have led to a shareholder-centric model of corporate governance in the United States and its impact on “American progress.” This book review is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol58/ iss1/8","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45175723","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 Relevance of Government Practice in Constitutional Decision-Making: A Review of the Supreme Court’s Federalism Jurisprudence","authors":"S. Burningham","doi":"10.60082/2817-5069.3633","DOIUrl":"https://doi.org/10.60082/2817-5069.3633","url":null,"abstract":"This article explores the role of government practice in the Supreme Court of Canada’s (“SCC”) constitutional jurisprudence. With the exception of conventions, practices of government actors are not usually thought to have constitutional force or significance. However, a systematic review of the SCC’s federalism decisions from the last five decades reveals that government practice has a gravitational pull in the Court’s decision-making. This article investigates the ways in which justices understand and attribute significance to government traditions or practices when resolving jurisdictional challenges. It also explores possible explanations for why justices might believe government practices are relevant to validity determinations. Creative Commons License This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol58/iss1/3","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47438710","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":"Trial Delay Caused by Discrete Systemwide Events: The Post-Jordan Era Meets the Age of COVID-19","authors":"P. Paciocco","doi":"10.60082/2817-5069.3607","DOIUrl":"https://doi.org/10.60082/2817-5069.3607","url":null,"abstract":"Court closures necessitated by COVID-19 have resulted in extensive trial delay, with implications for the section 11(b) Charter right to be tried within a reasonable time Although COVID-19 appears to be a straightforward example of an \"exceptional circumstance\" under the Jordan framework that governs section 11(b), careful analysis reveals that it falls within a category not contemplated by that framework-what this article calls \"discrete systemwide events \" Because COVID delay impacts cases across the system, the reasonable steps that can be taken to reduce it are themselves largely systemic in nature Crucially, the exceptional circumstances analysis stipulated by Jordan focuses exclusively on the steps available in an individual case, while systemic delay is addressed indirectly through presumptive ceilings Because the presumptive ceilings were not calibrated with COVID-19 in mind, they cannot account for COVID delay Nor can systemic responses to COVID delay be assessed as part of the general exceptional circumstances analysis: Such an approach would require judges to adjudicate the reasonableness of myriad institutional policies, giving rise to problems ranging from a lack of data to separation of powers issues This conundrum points towards one of two extremes: discount COVID delay without a full Jordan analysis, thereby partially relieving the Crown of its burden to justify presumptively unreasonable delay and leaving accused persons to bear the cost;or effectively prevent Crowns from justifying COVID delay as an exceptional circumstance, thereby risking thousands of stayed criminal charges flowing from the pandemic This article suggests an alternative approach that navigates between these extremes: In some instances, delay caused by a discrete systemwide event like COVID-19 should be remedied by a sentencing reduction, authorized either by the Charter or by the sentencing process set out in the Criminal Code This solution, while imperfect, achieves a more palatable result while adding minimal complexity to the section 11(b) analysis If adopted, it could save accused persons from disproportionately bearing the costs of COVID delay, which would be the likely outcome were the Jordan framework applied straightforwardly","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49625732","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 Court System in a Time of Crisis: COVID-19 and Issues in Court Administration","authors":"R. Haigh, Bruce Preston","doi":"10.60082/2817-5069.3608","DOIUrl":"https://doi.org/10.60082/2817-5069.3608","url":null,"abstract":"Canadian courts, in many ways, are neither efficient nor effective This has been clear for many years This article looks broadly at how little attention has been paid to court administration in the past, especially during times of crisis, and examines the impact the current pandemic may have on the future of Canadian court administration In this vein, we examine emergency plans in general before turning to pandemic-specific plans and how, especially in Canada, these have been found wanting during this current crisis Like most organizations, courts have developed plans – business contingency (BCPs) in Canada and continuity of operation (COOPs) in the United States-laying out policies and processes to follow in an emergency Yet none of the various disaster plans created by courts in both Canada and the United States highlight the role and importance technology would play Despite the increasing use of remote access for hearings-there has been a great deal of success in scheduling appeal hearings remotely-most courts have been unable to operate at pre-pandemic levels In fact, most courts have postponed the majority of their hearings and have had to push dockets forward Postponing a large portion of the courts' hearings will undoubtedly add to a backlog of cases and increase the administrative burden on operations once physical distancing is removed But the change in attitude that has taken place over the past few months is arguably greater than the sum of all changes made over the last forty years since Carl Baar's reference to courts being \"horse-and-buggy\" organizations The pandemic has provided a perfect occasion-no doubt forced but relatively low-risk-to try new things Our position is that steps need to be taken to ensure that an increased reliance on \"privileged access to technology\" during COVID-19 does not lead to an \"exacerbation of denial of access to justice \"","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":"1 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41329253","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":"Law in the Time of COVID","authors":"R. Haigh, Dan Priel","doi":"10.60082/2817-5069.3598","DOIUrl":"https://doi.org/10.60082/2817-5069.3598","url":null,"abstract":"In early January of this year, newspapers started reporting on a mysterious new respiratory disease that was spreading in Wuhan, China At the time, few paid much attention to that nameless disease A month later, China was effectively in lockdown;most of the rest of the world was cautious but life continued largely as before In another month, the virus spread across the globe, and with it the eerie images of deserted streets Our university shut its doors on March 13, 2020, after a week of increasing pandemic anxiety in Toronto As we write this in December, it is still largely shuttered The prognosis for the upcoming winter semester remains bleak: Another term where Osgoode remains closed, and the normally bustling and life-affirming hallways, library, cafeteria, offices, classrooms and atrium, stay silent and still","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46420114","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":"Consumer Bankruptcy in the Wake of COVID-19: The Calm Before the Storm","authors":"Stephanie Ben-Ishai","doi":"10.60082/2817-5069.3602","DOIUrl":"https://doi.org/10.60082/2817-5069.3602","url":null,"abstract":"The crisis created by the spread of COVID-19 seems likely to permanently change the structure of economic activity moving forward-more people are working from home, taking fewer business trips, and gravitating towards online spending In the short-term, Canada has done well to provide temporary economic support to those temporarily or permanently affected by the virus This unprecedented level of government support, together with the unparalleled level of voluntary creditor forbearance for late payments, has led to a remarkable drop in consumer bankruptcy filings in April and May 2020 However, a significant surge in the need for debt relief and bankruptcy filings is predicted for the near future This article concerns the effect of COVID-19 on the household debt carried by Canadian families and on the debt relief measures that are available to them How, if at all, will the socio-economic composition of those with serious debt problems change? Are the debt relief measures currently available through the Bankruptcy and Insolvency Act adequate to the task? What changes to the system of credit regulation might help those affected by the virus?","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42282248","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}