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Faculty Publications

The Peter A. Allard School of Law

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Full-Text Articles in Law

Time To Act: Response To Questions Posed By The Expert Panel On Sustainable Finance On Fiduciary Obligation And Effective Climate-Related Financial Disclosures, Janis P. Sarra, Cynthia Williams Jan 2019

Time To Act: Response To Questions Posed By The Expert Panel On Sustainable Finance On Fiduciary Obligation And Effective Climate-Related Financial Disclosures, Janis P. Sarra, Cynthia Williams

Faculty Publications

While there are numerous strategies to be deployed to move Canada to a financially sustainable future, this study addresses two critically important issues: fiduciary obligation of corporate- and pension-fiduciaries, and national action on environmental, social and governance (“ESG”) financial disclosure, including climate-related financial risk disclosure. The Canadian economy is facing significant challenges and disruptions in the transition to a lower carbon world. Absent clear and innovative steps to ensure our corporations and financial institutions act to address carbon emissions and other environmental, social and governance risks and opportunities, we will be seriously prejudiced in a world that is rapidly moving ...


Punishment And Its Limits, Debra Parkes Jan 2019

Punishment And Its Limits, Debra Parkes

Faculty Publications

The nearly three decades in which Beverley McLachlin was a member of the Supreme Court, including as Chief Justice, witnessed a number of shifts in Canadian penal policy and in the reach and impact of criminal law. During the Harper decade (2006 to 2015) in which the federal Conservatives enjoyed a majority government led by Prime Minister Stephen Harper, criminal justice policy took a turn toward the punitive. The federal government tore a page out of the American legislative handbook and sought to “govern through crime”, albeit in a more restrained Canadian style.


Flotsam, Financing And Flotation: Is Canada “Resolution Ready” For Insurance Company Insolvency?, Janis P. Sarra Jan 2019

Flotsam, Financing And Flotation: Is Canada “Resolution Ready” For Insurance Company Insolvency?, Janis P. Sarra

Faculty Publications

Insurance represents almost 2 per cent of Canada’s gross domestic product (GDP), yet there is little public policy discussion regarding the viability of the companies that insure Canadians or about the policyholder protection and resolution regime that underpins the provision of these services. As new products and technology develop, and as the complexity of multinational insurance enterprises increases, new risks pose challenges for Canada’s oversight and policyholder protection regimes. This article provides an overview of the insolvency regime for insurers in Canada, focusing primarily on the federal regime as the exemplar of how Canadian regulators and the insurance ...


Immigration Law Under The Mclachlin Court, Catherine Dauvergne Dec 2018

Immigration Law Under The Mclachlin Court, Catherine Dauvergne

Faculty Publications

No abstract provided.


Regulating Short-Term Accommodation Within Condominium, Douglas C. Harris Dec 2018

Regulating Short-Term Accommodation Within Condominium, Douglas C. Harris

Faculty Publications

Owning land within condominium, or strata property as it is known in British Columbia, includes holding an individual strata lot, a share of the common property, and the right to participate in governing the uses of the private and common property. Owners participate in governing through membership and voting rights in a strata corporation which has the responsibility to maintain the common property and the authority to establish bylaws that restrict the use of the common and private property. The corollary of membership and a voice in the affairs of the strata corporation is a duty to accept its governing ...


Remedies In Canadian Administrative Law: A Roadmap To A Parallel Legal Universe, Cristie Ford Nov 2018

Remedies In Canadian Administrative Law: A Roadmap To A Parallel Legal Universe, Cristie Ford

Faculty Publications

Administrative law in Canada, as in many other common law countries, centres around judicial review doctrine. Sometimes, one may even get the sense that administrative law and administrative law remedies begin at the point at which a party to an administrative action seeks judicial review of that action through the courts. Yet an overly tight focus on court action misses the hugely important first step in real-life administrative action: the varied and sometimes creative, purpose-built remedies that a tribunal itself may impose.

This chapter, which has been revised and updated for the third edition of this leading text on Canadian ...


The Digital Services Tax: A Conceptual Defense, Wei Cui Oct 2018

The Digital Services Tax: A Conceptual Defense, Wei Cui

Faculty Publications

As 2018 nears its end, a digital service tax (DST) seems imminent in Europe, yet elaborations of the DST’s motivations have so far come primarily from the European Commission and the UK Treasury: academic and practitioner commentators remain largely skeptical. This paper offers a new conceptual defense of the DST that is independent of the existing government positions. I argue that a clear case can be made for the DST as a way of taxing location-specific rent earned by digital platforms. While the DST may also be partially motivated by other, potentially conflicting visions for reforming international taxation, such ...


Tax Treaty Abuse And The Principal Purpose Test: Part Ii, David G. Duff Oct 2018

Tax Treaty Abuse And The Principal Purpose Test: Part Ii, David G. Duff

Faculty Publications

The Multilateral Convention to Implement Tax Treaty Measures to Prevent Base Erosion and Profit Shifting or Multilateral Instrument (MLI) has been described as “an historical turning point in the area of international taxation” which introduces a third layer of tax rules for the taxation of cross-border transactions in addition to domestic tax law and bilateral tax treaties. Of the many provisions of the MLI, the most important are the preamble text in Article 6(1) and the so-called principal purpose test (PPT) in Article 7(1), both of which have been adopted by all signatories to the MLI in order ...


Tax Treaty Abuse And The Principal Purpose Test - Part I, David G. Duff Oct 2018

Tax Treaty Abuse And The Principal Purpose Test - Part I, David G. Duff

Faculty Publications

The Multilateral Convention to Implement Tax Treaty Measures to Prevent Base Erosion and Profit Shifting (MLI) has been described as “an historical turning point in the area of international taxation” which introduces a third layer of tax rules for the taxation of cross-border transactions in addition to domestic tax law and bilateral tax treaties. Of the many provisions of the MLI, the most important are the preamble text in Article 6(1) and the so-called principal purpose test (PPT) in Article 7(1), both of which have been adopted by all signatories to the MLI in order to satisfy the ...


Residence-Based Formulary Apportionment: (In-)Feasibility And Implications, Wei Cui Oct 2018

Residence-Based Formulary Apportionment: (In-)Feasibility And Implications, Wei Cui

Faculty Publications

I examine one way of taxing international corporate income that has not previously been studied, “residence-based formulary apportionment” or RBFA. I first offer a new taxonomy of different ways of taxing corporate income by reference to individual shareholders, and distinguish what I call the “shareholder attribution” approach from integration, pass-through, and other approaches. I then argue that although traditional international legal norms had led international tax design to avoid taxing foreign corporations “unconnected” with the taxing jurisdiction (e.g. foreign corporations earning only foreign income), these legal norms have gone through substantial transformations in recent years. The exercise of jurisdiction ...


Judicial Review Of Government Actions In China, Wei Cui, Jie Cheng, Dominika Wiesner May 2018

Judicial Review Of Government Actions In China, Wei Cui, Jie Cheng, Dominika Wiesner

Faculty Publications

China’s laws and policies on the judicial review of government actions are often used as a bellwether of the government’s attitude towards the rule of law. Accordingly, in gauging the direction of legal reform in the Xi Jinping era, recent media reports have highlighted changes in litigation against government agencies as evidence of positive movement towards the greater rule of law, albeit only contradicted by other evidence of political repression and increasing authoritarianism. We provide a selective review of changes in China’s administrative litigation system in the last few years, including the amendment in 2014 of the ...


Legislated Interpretation And Tax Avoidance In Canadian Income Tax Law, David G. Duff, Benjamin Alarie May 2018

Legislated Interpretation And Tax Avoidance In Canadian Income Tax Law, David G. Duff, Benjamin Alarie

Faculty Publications

Predictable statutory interpretation helps ensure the reliable operation of contemporary systems of taxation. Tax liabilities that are not clearly expressed and articulated by legislatures lead to over-reliance on litigation as a means to enforce and clarify legislative intent. For this reason, modern legislatures continually amend and draft new tax provisions, reformulating existing rules and introducing new ones to address ever-changing social and economic environments. Moreover, legislatures also respond with amendments directed at judicial decisions with which they disagree, as well as the transactions and arrangements at issue in these cases. As these amended and new rules are then subject to ...


An Error Of Law And The Credibility Of The Civil Resolution Tribunal, Douglas C. Harris, Sophie Marshall Apr 2018

An Error Of Law And The Credibility Of The Civil Resolution Tribunal, Douglas C. Harris, Sophie Marshall

Faculty Publications

No abstract provided.


The Marital Wealth Gap, Erez Aloni Mar 2018

The Marital Wealth Gap, Erez Aloni

Faculty Publications

Married couples are wealthier than people in all other family structures. The top 10% of wealth holders are, in great proportion, married. Even among the wealthiest households, married couples hold significantly more wealth than others. The Article identifies this phenomenon as the “Marital Wealth Gap,” and critiques the role of diverse legal mechanisms in creating and maintaining it. Marriage also contributes to the concentration of wealth because marriage patterns are increasingly assortative: wealth marries wealth. The law entrenches or even exacerbates these class-based marriage patterns by erecting structural barriers that hinder people from meeting across economic strata.


How can the ...


Conceptualizing The Urban Commons: The Place Of Business Improvement Districts In City Governance, Alexandra Flynn Jan 2018

Conceptualizing The Urban Commons: The Place Of Business Improvement Districts In City Governance, Alexandra Flynn

Faculty Publications

Business Improvement Districts (BIDs) are self-taxed organizations that are comprised of businesses and property owners, are approved by city governments, and spend funds to improve profitability within certain neighbourhood boundaries. BID governance structures can also include neighbourhood residents and city councillors as voting or non-voting members. Numerous scholars have written about the role of BIDs in city governance, including the extent to which they improve or undermine inclusivity and accountability. This paper focuses on a related question that has not yet been deeply analysed in legal scholarship: can BIDs be considered a form of urban commons? The term ‘urban commons ...


A Bridge Over Troubled Waters - Resolving Bank Financial Distress In Canada, Janis P. Sarra Jan 2018

A Bridge Over Troubled Waters - Resolving Bank Financial Distress In Canada, Janis P. Sarra

Faculty Publications

Effective June 2017, Canada formalized its new resolution regime for “domestic systemically important banks”. This article examines the new resolution regime in the context of the early intervention program by the financial services regulator. The system offers a complex but integrated set of mechanisms to monitor the financial health of financial institutions, to intervene at an early stage of financial distress, and to resolve the financially distressed bank in a timely manner. Resolution is the restructuring of a financially distressed or insolvent bank by a designated authority. To “resolve” a bank is to use a series of tools under banking ...


Local Tax Incentives And Behavior Of Foreign Enterprises: Evidence From A Large Developing Country, Jing Xing, Wei Cui, Xi Qu Jan 2018

Local Tax Incentives And Behavior Of Foreign Enterprises: Evidence From A Large Developing Country, Jing Xing, Wei Cui, Xi Qu

Faculty Publications

We analyze how profit reporting and investment behavior of foreign enterprises respond to local tax incentives in China, a large developing country. Using firm-level data between 2000 and 2013 from China’s industrial enterprise survey, we first provide strong evidence for tax competition among Chinese cities (especially cities within the same province) over the average effective income tax rate. We then find that, despite stringent capital controls, both reported pre-tax profits and investment of foreign firms respond strongly to local tax incentives, suggesting that subnational tax competition in China is oriented towards both mobile profits and real resources.


Legal Ethics And The Political Activity Of Government Lawyers, Andrew Flavelle Martin Jan 2018

Legal Ethics And The Political Activity Of Government Lawyers, Andrew Flavelle Martin

Faculty Publications

The ability to engage in political activity is an essential feature of a democratic society. However, the ability of government lawyers to do so is unclear. While most governments have passed legislation identifying permissible political activity of their employees, it is unclear how the professional obligations of lawyers apply in this context and how these professional obligations interact with this legislation. This article answers these questions. The duty of loyalty to the client requires most government lawyers to refrain from all political activity at the same level of government. The special professional obligations of Crown prosecutors require these lawyers to ...


Human Rights Protection: The Role Of Institutional Capacity And Selective Adaptation, Pitman B. Potter Jan 2018

Human Rights Protection: The Role Of Institutional Capacity And Selective Adaptation, Pitman B. Potter

Faculty Publications

This paper will examine the potential application of selective adaptation and institutional capacity to the understanding of international human rights norms and practices. Enforcement of international human rights norms depends on the capacity of intermediary institutions; that is, their ability to perform their assigned tasks. Institutional performance is in turn contingent on domestic political and socio-economic conditions, and as such, local conditions of rapid socio-economic and political transformation pose particular challenges. The other key concept in this paper, selective adaptation, describes a process by which practices and norms are exchanged across cultural boundaries. The dynamic of selective adaptation can operate ...


When Deciding Whether To Allow A Taking Of Property We Need To Ask What We Want Property Rights To Do, Douglas C. Harris Jan 2018

When Deciding Whether To Allow A Taking Of Property We Need To Ask What We Want Property Rights To Do, Douglas C. Harris

Faculty Publications

In recognition of the dangers inherent to a regime that enables a majority of owners to terminate the individual property interests of a dissenting minority, the Strata Property Act requires that strata corporations secure court confirmation of dissolution votes. Not surprisingly, the shift to a lower dissolution threshold, the rapidly rising land values in British Columbia’s urban centres, and the increased costs of maintaining aging buildings, have precipitated a growing number of dissolution votes and a steady flow of applications to the British Columbia Supreme Court (BCSC) to confirm the votes.


Devalued Liberty And Undue Deference: The Tort Of False Imprisonment And The Law Of Solitary Confinement, Efrat Arbel Jan 2018

Devalued Liberty And Undue Deference: The Tort Of False Imprisonment And The Law Of Solitary Confinement, Efrat Arbel

Faculty Publications

Despite numerous calls for reform and restraint, solitary confinement continues to be both misused and overused in Canadian prisons. This paper charts a path through which to address such misuse, but analyzing solitary confinement through the tort of false imprisonment. This analysis is new: while some scholars have examined how other branches of tort law can address harms caused by solitary confinement, none have examined the application of this tort. I argue that the tort of false imprisonment provides segregated prisoners with an effective means through which to seek compensation for individual harm. As an intentional tort that is actionable ...


Keeping Chance In Its Place: The Socio-Legal Regulation Of Gambling, Kate Bedford, Donal Casey, Alexandra Flynn Jan 2018

Keeping Chance In Its Place: The Socio-Legal Regulation Of Gambling, Kate Bedford, Donal Casey, Alexandra Flynn

Faculty Publications

In this Introduction to the collection, we lay out what these papers offer to the field of gambling research and beyond. To begin, we identify the scholarly approaches to gambling upon which we wish to build (Part I). Then, we specify three contributions we seek to make through our socio-legal endeavors. First, this collection seeks to foreground the diverse, vernacular forms and places of play that are sometimes overlooked in gambling scholarship (Part II). Second, the papers take a distinctive pluralist approach that recognizes the multi-layered character of gambling regulation (Part III). Third, and finally, the interdisciplinary and methodologically diverse ...


Freedom Of Expression, Academic Freedom, And Equality: Seven Institutional Responsibilities, Emma Cunliffe Nov 2017

Freedom Of Expression, Academic Freedom, And Equality: Seven Institutional Responsibilities, Emma Cunliffe

Faculty Publications

This paper considers the institutional responsibilities that arise from the separate but related values of freedom of expression, academic freedom, and equality rights at Canadian public universities.

It introduces some applicable Canadian legal principles and considers whether freedom of expression can properly be limited. It also addresses the importance of institutional support for those who face threats or unfair criticism as a result of activities performed in the course of their university role.

The paper argues that universities should actively foster a robust and inclusive institutional culture that advances substantive equality while ensuring that policies and procedures do not place ...


The Ahistoricism Of Legal Pluralism In International Criminal Law, James G. Stewart, Asad Kiyani Jan 2017

The Ahistoricism Of Legal Pluralism In International Criminal Law, James G. Stewart, Asad Kiyani

Faculty Publications

International criminal law (“ICL”) is legally plural, not a single unified body of norms. As a whole, trials for international crimes involve a complex dance between international and domestic criminal law, the specificities of which vary markedly from one forum to the next. To date, many excellent scholars have suggested that the resulting doctrinal diversity in ICL should be tolerated and managed under the banner of Legal Pluralism. To our minds, these scholars omit a piece of the puzzle that has major implications for their theory – the law’s history. Neglecting the historical context of the international and national criminal ...


Property In The City: Special Edition Introduction, Douglas C. Harris, Graham Reynolds Jan 2017

Property In The City: Special Edition Introduction, Douglas C. Harris, Graham Reynolds

Faculty Publications

Cities concern themselves with the organization of space. Their principal work involves the mapping, zoning, regulating, taxing, developing, owning, protecting, patrolling, and servicing of land. As a result, cities exert considerable control over the rights of use that property owners enjoy, but they also make many uses possible through the building of infrastructure and the provision of services. However, the effects are not unidirectional; the institution of property is not simply inert clay in the hands of a city. Cities govern the actions of owners and, by extension, shape the institution of property, but this multidimensional institution is, in turn ...


Progressive Era Conceptions Of The Corporation And The Failure Of The Federal Chartering Movement, Camden Hutchison Jan 2017

Progressive Era Conceptions Of The Corporation And The Failure Of The Federal Chartering Movement, Camden Hutchison

Faculty Publications

Despite the economic integration of the several states and the broad regulatory authority of the federal government, the internal affairs of business corporations remain primarily governed by state law. The origins of this system are closely tied to the decentralized history of the United States, but the reasons for its continued persistence—in the face of significant federalization pressures—are not obvious. Indeed, federalization of corporate law was a major political goal during the Progressive Era, a period which witnessed significant expansion of federal involvement in the national economy. By examining the historical record of Progressive Era policy debates, this ...


Canada: Limitation On The Elimination Of Double Taxation Under The Canada-Brazil Income Tax Treaty, David G. Duff Jan 2017

Canada: Limitation On The Elimination Of Double Taxation Under The Canada-Brazil Income Tax Treaty, David G. Duff

Faculty Publications

This short comment reviews the Tax Court of Canada decision in Société générale valeurs mobilieres inc. v. The Queen, addressing the interpretation of the elimination of double taxation article in the Canada-Brazil Income Tax Treaty. The comment argues that the Court rightly rejected the taxpayer’s argument that treaty relief should extend to Canadian tax otherwise payable on gross interest income without taking into account any expenses incurred to earn this income, accepting the revenue department’s argument that treaty relief was limited to Canadian tax otherwise payable on net interest income earned in Brazil.


Transnational Carbon Contracting: Why Law’S Invisibility Matters, Natasha Affolder Jan 2017

Transnational Carbon Contracting: Why Law’S Invisibility Matters, Natasha Affolder

Faculty Publications

Contract lawyers are well aware that it is in the boilerplate, in the creation of contractual norms, forms and defaults, that power gets divided and that winners and losers are made. This analysis applies to contractual governance just as it applies to the individual contract setting. This chapter draws on the example of forest carbon contracts to illustrate the 'behind the scenes' privileging of contractual forms, norms, and defaults in action. It argues that the reductionist vision of law emerging in the literature and practice of carbon contracting is both misleading and impoverished.


Sedimentary Innovation: How Regulation Should Respond To Incremental Change, Cristie Ford Jan 2017

Sedimentary Innovation: How Regulation Should Respond To Incremental Change, Cristie Ford

Faculty Publications

As captivating as paradigm-changing "radical" innovations may be, “sedimentary”, or incremental, innovation – incremental improvements based on imitation, tweaking, bricolage and diffusion – are in fact the main way in which innovation actually develops. In finance, sedimentary innovation is shaped by forces including structural and social networks, a strong first mover advantage, and collective action problems. This piece, which is Chapter 8 in a forthcoming book that considers financial innovation as a regulatory challenge, examines sedimentary innovation in particular. Like innovation generally, sedimentary innovation can profoundly undermine regulation across time. It can bury structures designed to contain it and can transform the ...


Transparency Evolution: More Than The Right To Know, Ljiljana Biuković Jan 2017

Transparency Evolution: More Than The Right To Know, Ljiljana Biuković

Faculty Publications

Providing an analysis of global regulation and the impact of international organizations on domestic laws, this collection grew out of a central objective to explore methods of domestic engagement with international trade and human rights norms, and the inherent difficulties in establishing balanced links between these two international law regimes. The common thread of the papers in this collection is a focus on the application of socio-legal normative paradigms in building knowledge and policy support for coordinating local performance with international trade and human rights standards in ways that are mutually sustaining.