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- Bankruptcy (14)
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Articles 1 - 30 of 33
Full-Text Articles in Law
Class War: Ontario Teachers And The Courts, Harry J. Glasbeek
Class War: Ontario Teachers And The Courts, Harry J. Glasbeek
Osgoode Hall Law Journal
In 1997, the government of Ontario met with unexpected opposition to its changes to the education system with the introduction of Bill 160, the Education Quality Improvement Act, culminating in a province-wide strike by teachers. In reaction, the government sought to divert the conflict into the courts. Although the teachers were initially successful in court, the strike was not, and many of the strikers' objectives were not met. The author argues that the law of injunctions and collective bargaining shifted and narrowed the scope of the conflict, and reduced the political power of the teachers. The litigation surrounding Bill 160 …
Aboriginal Forestry: Community Management As Opportunity And Imperative, Deborah Curran, Michael M'Gonigle
Aboriginal Forestry: Community Management As Opportunity And Imperative, Deborah Curran, Michael M'Gonigle
Osgoode Hall Law Journal
In recognition that forests are one of their greatest resources, Aboriginal peoples are considering how altered tenure arrangements might uphold traditional values, including ecological integrity, while providing economic and employment opportunities. However, the federal and provincial forest management structures have historically precluded First Nations from helping to define, and participate in, the forest industry. The authors explore the legal and regulatory basis of forest management in Canada, and assess how it facilitates or impedes Aboriginal management of traditional areas. This is done through a legislative and policy analysis, and through the use of case studies from across Canada. The authors …
The Onus Of Proof Of Aboriginal Title, Kent Mcneil
The Onus Of Proof Of Aboriginal Title, Kent Mcneil
Osgoode Hall Law Journal
In the Delgamuukw decision, the Supreme Court of Canada clearly placed the onus on the Aboriginal nations to prove their title by showing occupation of lands at the time the Crown asserted sovereignty. In this article, it is argued that the common law could assist them in this respect. They should be able to rely on present or past possession to raise a presumption of Aboriginal title, and so shift the burden onto the Crown to prove its own title. Moreover, Aboriginal nations may be more successful if they bring an action for trespass or for recovery of possession of …
The Best And The Brightest?: Canadian Law School Admissions, Dawna Tong, W. Wesley Pue
The Best And The Brightest?: Canadian Law School Admissions, Dawna Tong, W. Wesley Pue
Osgoode Hall Law Journal
This article assesses the admissions policies commonly employed by law faculties in common law Canada. These faculties rely heavily on admissions criteria and policies developed in the United States and, like their American counterparts, typically admit students on the basis of "index scores" produced by combining Law School Admissions Test (LSAT) performance with Undergraduate Grade Point Average (UGPA). The appropriateness of this American model to the Canadian context has never been rigorously assessed. This raises serious questions as to whether Canadian law school admissions policies serve either of their stated goals of finding the "best" students or of advancing social …
The Charter Of Rights And Freedoms And The Rebalancing Of Liberal Constitutionalism In Canada, 1982-1997, James B. Kelly
The Charter Of Rights And Freedoms And The Rebalancing Of Liberal Constitutionalism In Canada, 1982-1997, James B. Kelly
Osgoode Hall Law Journal
This article presents a statistical analysis of the first 352 Charter of Rights and Freedoms decisions by the Supreme Court of Canada between 1982 and 1997. The author argues that the emerging approach to Charter review by the Supreme Court of Canada has led to a rebalancing of liberal constitutionalism and to a reconciliation between Charter rights and federalism. This stands in stark contrast to the highly activist approach to Charter review detected in studies by Morton, Russell, and Withey and, to a lesser extent, by Morton, Russell, and Riddell. Several factors illustrate the rebalancing of liberal constitutionalism in Canada. …
Sovereignty's Alchemy: An Analysis Of Delgamuukw V. British Columbia, John Borrows
Sovereignty's Alchemy: An Analysis Of Delgamuukw V. British Columbia, John Borrows
Osgoode Hall Law Journal
In Delgamuukw v. British Columbia, the Supreme Court of Canada issued its long-awaited judgment on the status of Aboriginal title under section 35(1) of the Constitution Act, 1982. The decision was regarded as highly significant because it seemed to fundamentally alter the law of Aboriginal rights. This article suggests that while the case has somewhat positively changed the law to protect Aboriginal title, it has also simultaneously sustained a legal framework that undermines Aboriginal land rights. In particular, the decision's unreflective acceptance of Crown sovereignty places Aboriginal title in a subordinate position relative to other legal rights. This article examines …
Amorality And Humanitarianism In Immigration Law, Catherine Dauvergne
Amorality And Humanitarianism In Immigration Law, Catherine Dauvergne
Osgoode Hall Law Journal
The author argues that liberalism does not provide a meaningful standard for assessing whether immigration laws are just. In the absence of a justice standard, immigration laws occupy an amoral realm. Varying strands of liberal theory about membership in society do converge around the humanitarian ideal that some people are so needy that they must be admitted on a moral basis. The humanitarian consensus, however, is unhelpful for most of the broad societal debates about immigration, and is a front for discursive cohesion without any underlying agreement. Humanitarianism is a pragmatic tool for shifting law and policy, but must be …
Individual Bankruptcy: Preliminary Findings Of A Socio-Legal Analysis, Iain D. C. Ramsay
Individual Bankruptcy: Preliminary Findings Of A Socio-Legal Analysis, Iain D. C. Ramsay
Osgoode Hall Law Journal
This article presents preliminary findings from an empirical study of individuals who filed for bankruptcy in the Toronto bankruptcy district in 1994. The central findings are that bankrupts are both asset- and income-poor at the time of declaring bankruptcy, and have much higher ratios of debt-to-income than the general population. Bankrupts are not drawn solely from low status occupations, but neither are they drawn significantly from the highest status occupations. The major reasons for declaring bankruptcy are adverse employment changes and business failure. There has been a large rise in the number of women declaring bankruptcy since earlier studies in …
Introduction To The Symposium On Consumer Bankruptcies, Jacob S. Ziegel
Introduction To The Symposium On Consumer Bankruptcies, Jacob S. Ziegel
Osgoode Hall Law Journal
The purpose of this Symposium is to make available to a larger readership a selection of the papers and comments that were presented at the Conference on the Contemporary Challenges of Consumer Bankruptcies in a Comparative Context held at the Faculty of Law,University of Toronto, 21-22 August 1998.
Comparative Empiricism, Jay Lawrence Westbrook
Comparative Empiricism, Jay Lawrence Westbrook
Osgoode Hall Law Journal
No abstract provided.
The Role Of Consumer Counselling As Part Of The Bankruptcy Process In Europe, Johanna Niemi-Kiesilainen
The Role Of Consumer Counselling As Part Of The Bankruptcy Process In Europe, Johanna Niemi-Kiesilainen
Osgoode Hall Law Journal
No abstract provided.
The Overseas Dimension: What Can Canada And The United States Learn From The United Kingdom, Michael Adler
The Overseas Dimension: What Can Canada And The United States Learn From The United Kingdom, Michael Adler
Osgoode Hall Law Journal
The United States and, to a slightly lesser extent, Canada have come to regard personal bankruptcy as a routine method of discharging debts, enabling the debtor to make a fresh start. By contrast, in the United Kingdom, bankruptcy is still seen as a remedy of last resort, and creditors may retain the right to enforce debts. The difference in approach is due to the fact that the United States and Canada have traditionally given priority to risk taking over security, while the United Kingdom has continued to give priority to security over risk taking. However, the British government's enthusiasm for …
Secured Creditors And Consumer Bankruptcy In The United States, William C. Whitford
Secured Creditors And Consumer Bankruptcy In The United States, William C. Whitford
Osgoode Hall Law Journal
This article first summarizes the many restrictions that the American consumer bankruptcy system imposes on the enforcement of the contractual rights of secured creditors. The restrictions include the ability, in Chapter 13 proceedings particularly, of the debtor to "strip the lien" of the undersecured creditor, releasing the collateral from the lien upon payment, over time, of only the value of the collateral when it is less than the full amount owing. The article then summarizes many changes in the rights of secured creditors currently being proposed and debated in Congress. The author concludes with his own proposals that would enhance …
Book Review: Case Studies In Recent Canadian Insolvency Reorganizations: In Honour Of The Honourable Lloyd William Houlden, By Jacob S. Ziegel; With David E. Baird, Q.C. (Eds), Ian F. Fletcher
Osgoode Hall Law Journal
No abstract provided.
Consumer Bankruptcies: An Australian Perspective, Rosalind Mason
Consumer Bankruptcies: An Australian Perspective, Rosalind Mason
Osgoode Hall Law Journal
Over the past three decades, Australia has experienced a significant increase in the number of consumer bankruptcies. Until the early 1970s, the number of business and consumer bankruptcies was approximately equal, whereas in 1997 to 1998, for every business-related bankruptcy, there were approximately four consumer bankruptcies. This article gives a concise overview of insolvency laws in Australia, in particular the administrations applicable to individual debtors. Next, it briefly describes current Australian scholarship on consumer bankruptcy, before outlining pertinent bankruptcy and consumer credit regulation. Suggestions to decrease consumer bankruptcy numbers include extension of the "cooling-off period" for those intending to petition …
Insolvency Counselling--Innovation Based On The Fourteenth Century, Carol Ann Curnock
Insolvency Counselling--Innovation Based On The Fourteenth Century, Carol Ann Curnock
Osgoode Hall Law Journal
In the fourteenth century, poverty (previously viewed as a virtue) was redefined by both church and state as illegal and immoral. This view persists in Canada today. The 1992 amendments to the Bankruptcy and Insolvency Act (BIA) included a provision that makes two counselling sessions mandatory for all persons going through bankruptcy. The author reviews The BIA Insolvency Counsellor's Qualification Course that was developed in support of this amendment, and concludes that it is not up to the task. The mandatory counselling presumes a bankrupt person's irresponsibility, addiction, and need for referral to community service agencies. However, these presumptions are …
The Philosophy And Design Of Contemporary Consumer Bankruptcy Systems: A Canada-United States Comparison, Jacob S. Ziegel
The Philosophy And Design Of Contemporary Consumer Bankruptcy Systems: A Canada-United States Comparison, Jacob S. Ziegel
Osgoode Hall Law Journal
The rapid increase in the number of consumer bankruptcies in Canada and the United States over the past fifteen years has again focused attention on the philosophy and design of modern insolvency systems, and on the similarities and differences in the approaches adopted in Canada and the United States. In this article, the author points out that the single most important difference is that the United States has historically subscribed to the debtor's right to a "fresh start" after surrendering the debtor's non-exempt property, whereas Canadian law never has, and does not now, confer an absolute right of discharge. Although …
Consumer Bankruptcy In Comparison: Do We Cure A Market Failure Or A Social Problem, Johanna Niemi-Kiesilainen
Consumer Bankruptcy In Comparison: Do We Cure A Market Failure Or A Social Problem, Johanna Niemi-Kiesilainen
Osgoode Hall Law Journal
The Continental European and Scandinavian bankruptcy laws did not have provisions enabling the discharge of debt until quite recently. While bankruptcy law did not specifically exclude consumer debtors, in the absence of discharge, consumer bankruptcy was meaningless and rare. After the deregulation of credit markets in the 1980s, many west European countries faced a huge increase in consumer debt problems. Several countries passed consumer debt adjustment laws during the late 1980s and 1990s. Unlike the North American consumer bankruptcy laws, the European laws attach moral attributes to the access to adjustment procedures, which require a mandatory payment plan, and offer …
Philosophy And Design Of Modern Fresh Start Policies: The Evolution Of Canada's Legislative Policy, John D. Honsberger
Philosophy And Design Of Modern Fresh Start Policies: The Evolution Of Canada's Legislative Policy, John D. Honsberger
Osgoode Hall Law Journal
The fresh start concept-the restoration of a bankrupt to his or her former debt-free status-originated in the United States. While lip service is paid to it in Canada, the author's review of the English origins and subsequent evolution of Canadian bankruptcy legislation indicates that a strong commitment to the fresh start policy has never been the Canadian philosophy. Rehabilitation of the debtor is not a matter of great concern in Canada. Indeed, the Canadian legislative policy has always been restrictive of the rights of debtors. With the passage of amendments to the Bankruptcy and Insolvency Act (BIA) in 1992 and …
Counselling Consumer Debtors Under Canada's Bankruptcy And Insolvency Act, Ruth E. Berry, Sue L. T. Mcgregor
Counselling Consumer Debtors Under Canada's Bankruptcy And Insolvency Act, Ruth E. Berry, Sue L. T. Mcgregor
Osgoode Hall Law Journal
If no attempts are made to determine the monetary and non-monetary reasons for bankruptcy or its recurrence, debtors may be more likely to choose bankruptcy, or remain in the cycle of bankruptcy. Credit counselling is one mechanism that can assist consumers in paying back debts without resorting to bankruptcy, thereby preventing repeat bankruptcies and heavy debt loads in the future. Canada passed a major milestone in 1992, becoming the first country to make financial counselling mandatory prior to the granting of an unconditional discharge from personal bankruptcy. This article describes the history of the policy analysis involved in making consumer …
Consumer Bankruptcies: A New Zealand Perspective, Paul Heath
Consumer Bankruptcies: A New Zealand Perspective, Paul Heath
Osgoode Hall Law Journal
In this article, the author considers the need for reform of New Zealand bankruptcy law to reflect recent socioeconomic developments in New Zealand. The author addresses several consumer bankruptcy issues, and considers them in the context of a number of competing public interest factors, such as the purpose of insolvency law, the role of the state in insolvency law, and the necessary balance to be struck between competing macroeconomic and microeconomic factors. The author suggests varying solutions-some educational, and some legal.
The Empirical Dimensions Of Consumer Bankruptcy: Results From A Survey Of Canadian Bankrupts, Saul Schwartz
The Empirical Dimensions Of Consumer Bankruptcy: Results From A Survey Of Canadian Bankrupts, Saul Schwartz
Osgoode Hall Law Journal
The number of consumer bankruptcies in Canada has risen substantially over the last twenty years. Using a 1997 survey of approximately 1,000 Canadian debtors, this article explores the economic situation of debtors seeking bankruptcy protection. This economic situation seems to be quite weak-most of the debtors have very low income, very high debts, and few assets. Moreover, the economic situation of the 1997 debtors seems quite similar to that of the 1977 debtors studied by Wayne Brighton and Justin Connidis almost twenty years ago. The aggregate amount of consumer credit, as a proportion of disposable income, has not risen dramatically, …
Reactions To Empirical Studies, Michael Adler
Reactions To Empirical Studies, Michael Adler
Osgoode Hall Law Journal
No abstract provided.
Reactions To Recent Canadian Empirical Studies On Consumer Bankruptcies, Wayne Brighton
Reactions To Recent Canadian Empirical Studies On Consumer Bankruptcies, Wayne Brighton
Osgoode Hall Law Journal
No abstract provided.
Options In Consumer Bankruptcy: An American Perspective, Jean Braucher
Options In Consumer Bankruptcy: An American Perspective, Jean Braucher
Osgoode Hall Law Journal
In both the United States and Canada, a rapid increase in personal bankruptcies has led to demands for stricter laws to force more repayment by consumer debtors. Canada has already taken this step, while the United States may soon do so in response to the counterfactual claim that the problem is debtors with means using bankruptcy as "a method of financial planning." The author suggests that the real problem in both countries, however, is an increase in the ranks of the over-indebted. Bankruptcy is a symptom, signalling to creditors the need to reform themselves. The author concludes that if creditors …
The Changing Politics Of American Bankruptcy Reform, Elizabeth Warren
The Changing Politics Of American Bankruptcy Reform, Elizabeth Warren
Osgoode Hall Law Journal
The political atmosphere in which changes to the American bankruptcy laws occur has shifted since the adoption of the 1978 amendments to the United States Bankruptcy Code. Bankruptcy professionals, who once effectively controlled much of the legislative debate, have lost ground to creditors, who have become much more powerful in influencing bankruptcy legislation. The result has been the politicization of the debate and the setting of the stage for a series of amendments that have rhetorical appeal, but that do not reflect the underlying factual reality of the bankruptcy system.
The Dark Side Of Student Loans: Debt Burden, Default, And Bankruptcy, Saul Schwartz
The Dark Side Of Student Loans: Debt Burden, Default, And Bankruptcy, Saul Schwartz
Osgoode Hall Law Journal
This article addresses three hypotheses: (1) only a minority of Canadian student loan borrowers experience severe difficulty in repaying their student loans; (2) those who default on their student loans do so largely because they cannot pay, rather than because they do not want to pay; and (3) for Canadians who are filing for bankruptcy and who have student loans among their debts, bankruptcy is a last resort, and their economic situation is more difficult than that of the average person seeking bankruptcy protection. A review of the literature strongly supports the first two hypotheses; a new analysis of a …
Holding The High Ground: The Position Of Secured Creditors In Consumer Bankruptcies And Proposals, Tamara M. Buckwold
Holding The High Ground: The Position Of Secured Creditors In Consumer Bankruptcies And Proposals, Tamara M. Buckwold
Osgoode Hall Law Journal
This article examines the position of secured creditors in the event of a consumer debtor's bankruptcy or the filing of a consumer proposal, as determined by the federal and provincial laws of Canada. Secured creditors in Canada are in a remarkably powerful position relative to other claimants in bankruptcy and to their counterparts in the United States. Their rights of realization against the collateral are essentially unaffected by the initiation of either a consumer bankruptcy or proposal. Moreover, recent judicial developments appear to further enhance secured creditors' rights of enforcement, both against the in personam payment obligation and against the …
Demonizing Debtors: A Response To The Honsberger-Ziegel Debate, Karen Gross
Demonizing Debtors: A Response To The Honsberger-Ziegel Debate, Karen Gross
Osgoode Hall Law Journal
No abstract provided.
Social Rights: Towards A Principled, Pragmatic Judicial Role, Craig M. Scott
Social Rights: Towards A Principled, Pragmatic Judicial Role, Craig M. Scott
Articles & Book Chapters
No abstract provided.