Law Commons^™

The Legacy Of Uk Tax Concepts In Canadian Income Tax Law, Benjamin Alarie, David G. Duff

All Faculty Publications

This article examines a specific category of legal transfers between the United Kingdom and Canada, considering the legacy of UK tax concepts in Canadian income tax law. Two main areas are considered where, in our view, this influence has been most profound: (i) the concept of income deployed for Canadian tax purposes; and (ii) judicial approaches to statutory interpretation and tax avoidance. Although the rules and concepts that Canadian courts and legislatures have adopted in each of these areas have necessarily evolved over time, the path of this evolution as well as current approaches reflect the enduring influence of UK …

How Not To Incorporate Voluntary Standards Into Smart Regulation: Iso 14001 And Ontario's Environmental Penalties Regulations, Stepan Wood, Lynn Johannson

All Faculty Publications

In June, 2007 the province of Ontario, Canada, released environmental penalties (EPs) regulations. EPs (or administrative penalties, as they are called in the US) are the environmental equivalent of speeding tickets for facilities that violate pollution laws. They are found in numerous jurisdictions and are widely understood as part of a move toward smart regulation. The Ontario regulations offer reduced EPs to facilities with an environmental management system (EMS) that meets the requirements of ISO 14001 or the chemical industry's Responsible Care initiative. We argue that non-governmental, consensus-based standards such as ISO 14001 can and should play a constructive role …

Postcard From The Edge (Of Empire), Elizabeth Adjin-Tettey, Gillian Calder, Angela Cameron, Maneesha Deckha, Rebecca Johnson, Hester Lessard, Maureen Maloney, Margot Young

All Faculty Publications

This article in scrapbook form represents the endeavour of the eight authors to document a recent, collective, academic journey. The project was one embarked upon as a means to explore tensions between the ideas of embodiment that connected our work, and the rigidities of academic convention. Using various media, this article strives, in substance and form, to provoke, challenge and confront its audience into dialogue, while simultaneously asking questions about the limits of our own legal imaginations.

Anatomy Of An Experiment: Consolidation Of Eu Contract Law, Ljiljana Biuković

All Faculty Publications

This article analyzes the process of harmonization of Contract Law in the European Union (EU) in the context of the general debate on the need for international harmonization of commercial law on one hand, and, on the other hand, in the context of the integration of the European market and the omnipresent European discussions on the need for harmonization, appropriate methodologies for reform and on the institutional competence to pursue the harmonization process. Part II of the article establishes interrelationships between major international harmonization efforts in the area of contract law. Part III focuses on the current situation in the …

Tax Fairness And The Tax Mix, David G. Duff

All Faculty Publications

Since a society’s tax system is one of its most basic and essential social institutions, the justice or fairness of this tax system is an important subject for social and political theory, as well as for practical politics. In order to assess the fairness of any particular tax or the tax system as a whole, however, it is essential to consider the purpose of the tax and the tax system in general. While the most obvious purpose of most taxes is to raise revenue to finance public expenditures, taxes are also employed to regulate social and economic behaviour and to …

Neuman And Beyond: Income Splitting, Tax Avoidance, And Statutory Interpretation In The Supreme Court Of Canada, David G. Duff

All Faculty Publications

This comment examines the Supreme Court of Canada decision in Neuman, considering the grounds of the decision itself as well as its implications for income splitting, tax avoidance, and the manner in which the Supreme Court of Canada interprets the Income Tax Act. Part II reviews the facts of the case, its judicial history, and the decision reached by the Supreme Court of Canada. Part ill evaluates this decision in light of the text of s. 56(2), the purpose of this provision, and the practical consequences of the court's interpretation. Part IV considers the implications of the decision and subsequent …

The Boundaries Of The Criminal Law: The Criminalization Of The Non-Disclosure Of Hiv, Isabel Grant

All Faculty Publications

In this paper, the author examines the trend toward the increased criminalization and punishment of persons with HIV who fail to inform their sexual partners of their HIV-positive status. Since the Supreme Court of Canada's decision in R. v. Cuerrier, such behaviour may constitute aggravated assault or aggravated sexual assault, the latter offence carrying a maximum sentence of life imprisonment. The paper surveys the Canadian case law and highlights the trend towards the imposition of increasingly harsh sentences. After reviewing public-health and criminal law options for dealing with non-disclosure of one's HIV status, the author concludes that criminal law should …

The Boldt Decision In Canada: Aboriginal Treaty Rights To Fish On The Pacific, Douglas C. Harris

All Faculty Publications

The Oregon Boundary Treaty of 1846 established the forty-ninth parallel as the boundary between British and American interests in western North America. After 1846, Aboriginal peoples to the north of the border negotiated with the British Crown the terms of their coexistence with incoming settlers, those to its south with the United States. As a result, while some of the Coast Salish and Kwak’waka’wakw peoples in what would become British Columbia concluded treaties between 1850 and 1854 with the Crown’s representative, James Douglas, the tribes in the United States settled with the governor of the Washington territory, Isaac I. Stevens, …

Landing Native Fisheries: Indian Reserves And Fishing Rights In British Columbia, 1849-1925, Douglas C. Harris

All Faculty Publications

Landing Native Fisheries reveals the contradictions and consequences of an Indian land policy premised on access to fish, on one hand, and a program of fisheries management intended to open the resource to newcomers, on the other. Beginning with the first treaties signed on Vancouver Island between 1850 and 1854, Douglas Harris maps the connections between the colonial land policy and the law governing the fisheries. In so doing, Harris rewrites the history of colonial dispossession in British Columbia, offering a new and nuanced examination of the role of law in the consolidation of power within the colonial state. This …

The Roles Of Standardization, Certification And Assurance Services In Global Commerce, Margaret M. Blair, Cynthia A. Williams, Li-Wen Lin

All Faculty Publications

In this article we examine the rapid emergence and expansion of standardized product and process frameworks and a private-sector compliance and enforcement infrastructure that we believe may increasingly be providing a substitute for public and legal regulatory infrastructure in global commerce. This infrastructure is provided by a proliferation of performance codes and standards, many of which define acceptable social and environmental behavior, and a rapidly-growing number of privately-trained and authorized inspectors and certifiers that we call the third-party assurance industry. We offer reasons for this development, evidence of its scope and scale, and then describe the phenomenon in more detail …

Conflict Tactics In A Mediation Setting, Linda M. Johnston, Michelle Lebaron

All Faculty Publications

This essay examines the results of a pilot study undertaken at George Mason University as a joint effort between the Psychology Department and the Institute for Conflict Analysis and Resolution. The authors discuss the task of behavioralizing tactics commonly used in conflict situations, defining particular conflict styles often used by participants in conflicts, and the ability of the participants in the study to identify and agree upon the tactics and styles when viewed in a film. The authors also examine the relationship of shame, guilt, and anger in the conflict setting as it relates to the tactics used.

Immigration And Integration In Canada, Mary Liston, Joseph Carens

All Faculty Publications

Like Australia and the United States, Canada is usually considered a ‘traditional’ immigrant receiving country in contrast to many countries in Europe, Asia, and Africa where large-scale immigration is a relatively recent phenomenon. This chapter reviews past and current Canadian immigration policy. Section one provides a brief historical overview of Canadian immigration patterns. Section two outlines current immigration policy, including the changes introduced by Canada’s Immigration and Refugee Protection Act (2002). Section three discusses the relationship between immigration policy and the integration of immigrants in Canadian society. The chapter concludes with the proposition that, while Canada’s immigration policy converges with …

Humanitarian Assistance And The Private Security Debate: An International Humanitarian Law Perspective, Benjamin Perrin

All Faculty Publications

The changing nature of armed conflict has had a dramatic impact on the security risks facing humanitarian personnel. Historically, the safety of humanitarian aid delivery was secured through the consent of the relevant Parties to the conflict. However, non-international ethnically-motivated armed conflicts, failed and failing states, and insurgency-based warfare have fundamentally challenged the viability of this traditional security paradigm. In confronting today's complex security climate, humanitarian organizations are faced with a diverse menu of alternatives to enhance their security. The debate over armed protection that has sharply divided the humanitarian community is explored in this paper, including a critique of …

Carbon Taxation In British Columbia, David G. Duff

All Faculty Publications

Among alternative public policies to reduce emissions of carbon dioxide and other greenhouse gases (GHGs), environmental taxation represents a promising but often under-utilized approach-particularly in North America where the introduction of any new tax involves enormous political challenges. In Canada, however, British Columbia became the first North American jurisdiction to implement a consumption-based environmental tax specifically designed to reduce GHG emissions when BC's provincial government enacted a carbon tax effective July 1, 2008.

This paper provides a general overview and initial evaluation of British Columbia's carbon tax, explaining the background to the announcement of the tax in the Provincial Government's …

Legal Education's Mission, W. Wesley Pue

All Faculty Publications

This paper explores the liberal commitments of legal education against the requirements of liberal democracy, properly understood. It addresses the distinction between liberal education and training in trade technique, assesses pressures militating against liberal education in law, explores tensions within law faculties (such as the challenges presented by religious and cultural diversity) and considers the potential of attaining "grace through skills training". The paper explores arguments developed by Roger Burridge and Juilan Webb in their scholarship on "The Values of Common Law Legal Education."

Searching For Law While Seeking Justice: The Difficulties Of Enforcing International Humanitarian Law In International Criminal Trials, Benjamin Perrin

All Faculty Publications

International criminal law finds itself at the confluence of public international law, international humanitarian law, human rights law and national criminal laws. Our understanding of the interrelationship between these sources of law has been hampered by the conventional wisdom that public international law doctrines applicable to disputes between states can be readily transposed to the international criminal prosecution of individuals. A detailed analysis of selected decisions of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda demonstrates that these tribunals could not simply rely on classical sources of public international law to resolve difficult …

Proportionate Securities Regulation: The Potential For Scaled Treatment Of Junior Issuers, Janis P. Sarra

All Faculty Publications

Particular features of Canada’s capital market inform our consideration of moving towards a more proportionate regulatory system. Specifically, Canada has a large number of small public companies; its market cap is concentrated largely in four provinces; it has a particular focus on mining, resources and technology; and a significant number of issuers are cross-listed on US exchanges. Canadian securities regulators have already recognized some measure of proportionate regulation in their national instruments, based on the type of listing. The paper suggests that a number of overriding principles or considerations should be taken into account in respect of a further move …

Mandatory Retirement: Termination At 65 Is Ended, But Exceptions Linger On, Anthony F. Sheppard

All Faculty Publications

In employment law, mandatory retirement ("MR") is the compulsory termination of employment as a result of the employee having reached a specified age. In legal circles, MR is regarded as retirement rather than dismissal, though an individual who wishes to continue to work beyond a specified age might disagree. The elimination of MR in British Columbia resulted from the deletion of five little words in the definition of "age" in section 1 of the British Columbia Human Rights Code, RSBC 1996, c 210 (BCHRC). Section 1 of the BCHRC formerly defined "age" as meaning "an age of 19 years or …

Six Principles For Integrating Non-Governmental Environmental Standards Into Smart Regulation, Stepan Wood, Lynn Johannson

All Faculty Publications

Ontario recently introduced environmental penalties (EPs), the environmental equivalent of speeding tickets. EPs are widely understood as part of a move toward "smarter" environmental regulation. As part of the EPs regime, facilities with an environmental management system aligned with ISO 14001 or Responsible Care qualify for reduced penalties. The Ontario government’s attempt to incorporate voluntary standards - such as ISO 14001 - into its EPs regulations was not very smart, however, because it failed to observe six principles that, in our view, should guide the incorporation of standards into smart regulation. First, do not reinvent the wheel. If an existing …

Credit Derivatives Market Design, Creating Fairness And Sustainability, Janis P. Sarra

All Faculty Publications

Now that the first wave of the financial crisis has been resolved through the coordinated efforts of regulators and banks, it is important to address some of the systematic weaknesses of the current financial system. One such weakness is the inappropriate incentive effects of the market for credit derivatives, and in particular, for credit default swaps. As a risk management tool, credit derivatives were originally an effective means of diversifying lending risk. Credit derivatives have worked to cover exposures where there have been credit events of the underlying reference entities. To date, the global market for derivatives has operated largely …