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Tort Law: Cases And Commentaries, Samuel Beswick May 2024

Tort Law: Cases And Commentaries, Samuel Beswick

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Preface

The law of obligations concerns the legal rights and duties owed between people. Three primary categories make up the common law of obligations: tort, contract, and unjust enrichment. This casebook provides an introduction to tort law: the law that recognises and responds to civil wrongdoing. The material is arranged in two main parts. Following a brief introduction (§1), the first main part addresses intentional, dignitary and dishonesty torts as well as corresponding defences and remedies (§2-§10). The focus pivots with a consideration of the overarching theories and goals of tort …


Administrative Procedures As Tax Enforcement Tools, Wei Cui, Jeff Hicks, Michael Wiebe Jan 2024

Administrative Procedures As Tax Enforcement Tools, Wei Cui, Jeff Hicks, Michael Wiebe

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We study how common administrative procedures affect firm tax evasion. We begin with the counter-intuitive observation that many firms bunch above, rather than below, large notches in China’s corporate income tax. Cross-sectional patterns suggest that administrative procedures in the prepayment and refund system served as de facto enforcement tools that prevented some firms from accessing the reduced tax rates below the notches. Following a regulatory reform that eliminated these procedures, bunching below the notches increased dramatically. The results imply a tradeoff between reducing administrative barriers and allowing much taxpayer non-compliance in low-compliance environments.


The Risks To Refugee Law Of Humanitarian Responses To Flight From Ukraine, Catherine Dauvergne Jan 2024

The Risks To Refugee Law Of Humanitarian Responses To Flight From Ukraine, Catherine Dauvergne

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The invasion of Ukraine that began in February 2022 provoked an enormous exodus of people fleeing to safety by crossing Ukrainian borders into neighbouring states to seek refuge. The United Nations High Commissioner for Refugees (UNHCR) reported that as of mid-May 2023 more than eight million people had fled the conflict in Ukraine and crossed a border into another European state, and more than five million of these people were registered for temporary protection of some sort. Many of these people were warmly welcomed, and further-flung states raised their hands to provide assistance and refuge as well. Support for these …


Social Control And Homeless Encampments: Shifting The Role Of Shelters Through Judicial Review, Alexandra Flynn Jan 2024

Social Control And Homeless Encampments: Shifting The Role Of Shelters Through Judicial Review, Alexandra Flynn

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This paper examines the recent Canadian judicial decisions in relation to the eviction of encampment residents from public space to analyze what constitutes “reasonableness” in government decision-making in relation to short-term shelters. I argue that courts have called into question a key aspect of social control that relates to unhoused populations: the institutional belief that temporary shelters serve as a reasonable form of accommodation and an appropriate alternative to living in encampments. Recent legal decisions have challenged both this institutional belief and the methods used by officials to track which shelters are available. I conclude that the legal approach of …


The Chinese Tax System: Where It Stands And How We Should Study It, Wei Cui Jan 2024

The Chinese Tax System: Where It Stands And How We Should Study It, Wei Cui

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This book chapter offers an overview of where China’s tax system stands, critically assesses recent scholarship on Chinese taxation, and urges researchers to attend more to normative questions of tax design (e.g., economic efficiency and redistribution). After surveying major tax instruments deployed in China today, the chapter reviews recent studies of taxation’s impact on the Chinese economy, arguing that such scholarship often falls short of providing systematic support for policy analyses, and that ignoring normative questions in tax design leads to poor conceptual framing in positive analyses. The chapter then considers some themes at the intersection between Chinese political institutions …


The Future Of Unfair Terms Regulation In Commercial Contracts, Marcus Moore Jan 2024

The Future Of Unfair Terms Regulation In Commercial Contracts, Marcus Moore

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What is the future of unfair contract terms regulation? To date, regimes of unfair terms regulation have shared several key operational features, but have diverged on the question of the scope of regulation: some regimes focus on consumer contracts or exemption clauses, while other regimes include all commercial standard form contracts. Both domestic and transnational commerce would be well served by broader harmonisation of unfair terms regulation. But divergence on the basic question of the scope of regulation has hindered such harmonisation. Some important recent developments suggest a possible trend towards regulation of a scope which includes all standard form …


The Governance Of Public Space By Legally Unique Bodies: A Case Study Of Vancouver’S Granville Island, Alexandra Flynn, Claire Stevenson-Blythe Jan 2024

The Governance Of Public Space By Legally Unique Bodies: A Case Study Of Vancouver’S Granville Island, Alexandra Flynn, Claire Stevenson-Blythe

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This paper focuses on the governance of Granville Island, a former industrial stretch of land that operates as an arts destination abutting the city’s waterfront. While Granville Island might look like any other neighbourhood in Vancouver, it is in fact owned and managed by the Canada Mortgage and Housing Corporation, a federal agency, on behalf of the Government of Canada. This paper examines what it means, democratically speaking, for the federal government to operate public space in a city. Public entities are each legally unique, raising questions as to how public entities and their relationships with other entities can be …


The Role Of Pornography In The “Rough Sex” Defence In Canada, Lisa Gotell, Isabel Grant, Elizabeth Sheehy Jan 2024

The Role Of Pornography In The “Rough Sex” Defence In Canada, Lisa Gotell, Isabel Grant, Elizabeth Sheehy

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Drawing upon the authors’ earlier research studying the consent defence when it is used to suggest that the complainant agreed to “rough sex” involving violence, this paper develops an extended analysis of the complex role of pornography in these decisions. This paper focuses on a subset of “rough sex” cases, where pornography played a role in “scripting” the accused’s behaviour. Thematically, these cases included: those where the accused had a substantial history of consumption of violent pornography; cases in which the accused forced the complainant to view pornography as part of the assault; cases where the accused recorded the attack, …


Post-Conviction Disclosure In The Canadian Context, Alexandra Ballantyne, Tamara Levy, K.C. Jan 2024

Post-Conviction Disclosure In The Canadian Context, Alexandra Ballantyne, Tamara Levy, K.C.

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It is common knowledge that the criminal justice system is fallible and prone to human error. The most egregious of such errors is the conviction of an innocent person. While wrongful convictions have been acknowledged in Canada in the last few decades, they are mostly regarded as rare and extraordinary events.16 In response to this perception, experts have identified the challenge of determining the number of wrongful convictions and their exact causes.17 A 2019 study estimates that at least 85 people have been exonerated in Canada.18 The recent advent of the Canadian Registry of Wrongful Convictions creates a centralized location …


Boom Or Bust: The Public Trust Doctrine In Canadian Climate Change Litigation, Hassan M. Ahmad Jan 2024

Boom Or Bust: The Public Trust Doctrine In Canadian Climate Change Litigation, Hassan M. Ahmad

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Over the past few years, Canadian courts have heard the first climate change cases. These claims have been commenced on behalf of youth and future generations who allege that governments have failed to meet or, otherwise, uphold greenhouse gas reduction targets under the Paris Agreement. This novel area of litigation has brought forth creative legal arguments to expand or re-envision existing doctrines in order to place blame for what continues to be a warming planet and increasingly unstable ecosystems. This article investigates the public trust doctrine. In Canadian courts, the doctrine’s limited and arguably parochial interpretation has diverged from its …


When Is It Fair To Break Promises? Illuminating Promissory Estoppel's Inequity Requirement, Marcus Moore Dec 2023

When Is It Fair To Break Promises? Illuminating Promissory Estoppel's Inequity Requirement, Marcus Moore

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Promissory estoppel is an important adjunct to contract law, allowing non-contractual promises to be legally binding under prescribed conditions. These conditions include reliance by the promisee, as the doctrine serves to protect reasonable reliance induced by certain types of promises. Typically, the conditions also include a requirement that it would be inequitable for the promisor to go back on the promise. This inequity requirement reflects the nature of promissory estoppel as a creature of the law of equity. Beyond this, however, considerable uncertainty surrounds the inequity element. For example, there are diverging views as to whether it embodies a distinct …


Minimal Impairment: An Unreasonable Measure Of The Justifiable Limits Of Rights, Marcus Moore Oct 2023

Minimal Impairment: An Unreasonable Measure Of The Justifiable Limits Of Rights, Marcus Moore

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Under both the Oakes and Doré frameworks of proportionality analysis in Canada, critical in assessing the justifiability of rights limitations under section 1 of the Charter has been the “Minimal Impairment” question. Conceptually, Minimal Impairment asks whether a right has been impaired as little as possible in pursuit of the statutory objective. Applied strictly it is a virtually-impossible standard of justification. Thus, sometimes more relaxed standards are applied in practice. This double standard has caused inconsistency in which standard is applied from case- to-case (or even opinion-to-opinion in the same case). New emphasis within the tests on the Proportionality of …


Tending Gardens, Ploughing Fields, And The Unexamined Drift To Constructive Takings At Common Law, Douglas C. Harris Oct 2023

Tending Gardens, Ploughing Fields, And The Unexamined Drift To Constructive Takings At Common Law, Douglas C. Harris

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Expropriation law in Canada has operated on the basis of two presumptions at common law: that compensation is owing for the compulsory acquisition of property unless specifically indicated otherwise by statute; and, that no compensation is owing for land use regulation unless specifically provided for by statute. In its decision in Annapolis Group Inc. v Halifax Regional Municipality, the Supreme Court of Canada abandoned the second presumption that compensation for land use regulation required a statutory foundation. The majority and dissent proceed on the unexamined foundation that there is a common law basis for compensation in claims for constructive takings …


Framing Effects, Rhetorical Devices, And High-Stakes Litigation: A Cautionary Tale, Marcus Moore Sep 2023

Framing Effects, Rhetorical Devices, And High-Stakes Litigation: A Cautionary Tale, Marcus Moore

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Opposing lawyers frame the facts of a case to serve their client, craft leading questions, and exert pressure on the witness to go along with their desired answer. To counter this, counsel for the witness must anticipate this and prepare the witness to tacitly ask themselves before answering such questions: whether a frame is being employed?; and if so, they should respond in their own words, rather than in the terms put to them by the opposing lawyer. Courts might counsel themselves to employ similar caution when incorporating discussion taken from politics or related policy debate. They may not be …


Developments In Contract Law: The 2021-2022 Term — The Enduring Allure Of Freedom Of Contract, Marcus Moore Aug 2023

Developments In Contract Law: The 2021-2022 Term — The Enduring Allure Of Freedom Of Contract, Marcus Moore

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A review of recent developments in Contract Law reveals that Freedom of Contract continues to thrive in the jurisprudence a half-century after its supposed fall. As the analysis here shows, it is a theme which animates not only general thinking about contracts, but also court resolution of specific cases and issues. High-level considerations drive the reasoning, colouring the application of more detailed rules where these exist. And among these high-level considerations, Freedom of Contract enjoys privileged status as the default law, against which opposing considerations in practice must justify themselves as exceptions. Other considerations vary in their power to constrain …


Sexual Assault Of Women And Adolescent Girls With Mental Disabilities, Janine Benedet, Isabel Grant Jun 2023

Sexual Assault Of Women And Adolescent Girls With Mental Disabilities, Janine Benedet, Isabel Grant

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This Report considers the research that addresses the sexual assault of women (age 18+) and adolescent girls (12-17) with mental disabilities (disabilities that affect cognition and decision-making, including intellectual disabilities present from birth, dementia, brain injury and certain psychiatric conditions.) These victims are targeted for sexual violence at rates even higher than for women generally. Yet when these women report abuse to authorities, the criminal trial process struggles to provide them with justice, while the consequences of disclosure can be severe and participation in the criminal justice process particularly traumatizing for them.


Regulating The Concussion Crisis In Sports: Canada’S Initiative To Bring Prevention Into Focus, Marcus Moore Jan 2023

Regulating The Concussion Crisis In Sports: Canada’S Initiative To Bring Prevention Into Focus, Marcus Moore

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The twenty-first century has revealed the existence of a concussion crisis in sports. The crisis is of global reach, and Canada is no exception. In recent years, the Canadian government joined citizens in recognizing sports concussion as a major public health issue. A parliamentary committee investigated the crisis, reported findings, and made recommendations which the government accepted. As far as legal responses to the sport concussion crisis, new among the recommendations was a callto- action on prevention (Recommendation 13). Since there remains no medical cure for concussions, the government agreed with the view of injured former athletes and injury prevention …


Criminality And Inequity Under Canada's Legalization Of Cannabis: A Study Of Vancouver's Downtown Eastside, Stephanie Lake, Margot Young Jan 2023

Criminality And Inequity Under Canada's Legalization Of Cannabis: A Study Of Vancouver's Downtown Eastside, Stephanie Lake, Margot Young

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The origin of this essay reminds us of the importance of interdisciplinary collaboration to the development and assessment of public policy. It also demonstrates the serendipitous beginnings of many interesting inquiries. This collaboration was thus fortuitous: authors Lake and Young met during Lake’s doctoral dissertation defence. Young was on the examining committee. Lake presented a series of epidemiological studies (three of which are summarized below) involving the use of cannabis for therapeutic and harm reduction purposes among marginalized people who use drugs (PWUD) in Vancouver. Young’s lines of questioning involving the legal implications of Lake’s findings spurred the idea to …


The Transnational Exchange Of Law Through Climate Change Litigation, Natasha Affolder, Godwin Dzah Jan 2023

The Transnational Exchange Of Law Through Climate Change Litigation, Natasha Affolder, Godwin Dzah

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Climate change litigation continues to bash holes in the view of domestic legal systems as hermetically sealed units. Domestic cases are inspired by litigation elsewhere, actively fostered by transnational advocacy communities, and the decisions themselves are indicative of transjudicial influences and sometimes even dialogue on climate change. This chapter, written in 2021 to reflect the transnationalism of early climate change litigation, takes a close look at practices of transjudicialism in climate change litigation. In so doing, it seeks to disrupt some default patterns of studying the spread of law. By problematizing the practices of ‘finding’ influential climate law cases, measuring …


Resurrecting 'She Asked For It': The Rough Sex Defence In Canadian Courts, Elizabeth Sheehy, Isabel Grant, Lise Gotell Jan 2023

Resurrecting 'She Asked For It': The Rough Sex Defence In Canadian Courts, Elizabeth Sheehy, Isabel Grant, Lise Gotell

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According to rape crisis centres and women’s shelters in Canada, the US and the UK, women are reporting extreme levels of violence by men who rape them, including strangulation—a particularly dangerous form of violence that is highly predictive of femicide. At the same time, accused men are deploying the “rough sex” defence when the victim—nearly always a woman—has suffered bodily harm or even death as a result of the accused’s actions. This defence is used to suggest that the woman enjoyed strangulation, bondage or other violence as part of “sex play”, inviting judges and jurors to find that she either …


Introduction To Volume I [Of The Canadian Law Of Obligations Iii Conference]: The Power And Limits Of Private Law, Marcus Moore, Samuel Beswick Jan 2023

Introduction To Volume I [Of The Canadian Law Of Obligations Iii Conference]: The Power And Limits Of Private Law, Marcus Moore, Samuel Beswick

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Private law issues touch the everyday experiences of individuals and businesses. Contracts, torts, trusts and other areas of private law and the law of obligations evolve with jurisprudential and statutory changes. The Power and Limits of Private Law is a timely compilation of papers developed from a conference on the subject at the University of British Columbia’s Green College in June of 2022. The contributors are eminent scholars in their respective fields and their commentaries and observations on developments in private law provide a useful reference for lawyers, judges, academics and students who confront private law issues in their work. …


Rich Dad, Gay Dad: The Wealth Traps Of Gay Fatherhood, Aloni Erez Jan 2023

Rich Dad, Gay Dad: The Wealth Traps Of Gay Fatherhood, Aloni Erez

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While legal and societal progress has enabled gay fathers to form families, there remains a critical blind spot in our understanding of their financial wellbeing. Specifically, there are indications that a wealth gap may exist among gay father households. This article introduces a novel taxonomy of the mechanisms that likely contribute to a wealth gap for these households, including surrogacy and adoption costs, legal recognition expenses, parental leave policies, discrimination in housing and borrowing, and limited support from families of origin. These obstacles reflect the structural features and prejudices that disproportionately affect households led by non-heterosexual fathers. The article highlights …


Of Lock-Breaking And Stock Taking: Ip, Climate Change And The Right To Repair In Canada, Graham Reynolds Jan 2023

Of Lock-Breaking And Stock Taking: Ip, Climate Change And The Right To Repair In Canada, Graham Reynolds

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This paper argues that Canadian governments have both legal and moral obligations to act to combat climate change. In seeking to fulfill these obligations, Canadian governments should pay particular attention to Canada’s intellectual property (IP) regime. This paper argues that given the centrality of IP to Canada’s economy, a comprehensive review is required in order to determine whether and the extent to which elements of Canada’s IP regime contribute to climate change or impede climate action. To illustrate the need for such a review, this paper will highlight one example of how Canada’s IP regime, as currently structured, impedes the …


The "Right To City" In The Era Of Crowdsourcing, Alexandra Flynn Jan 2023

The "Right To City" In The Era Of Crowdsourcing, Alexandra Flynn

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This article explores the meaning and context of crowdsourcing at the municipal scale. In order to legitimately govern, local governments seek feedback and engagement from actors and bodies beyond the state. At the same time, crowdsourcing efforts are increasingly being adopted by entities – public and private – to digitally transform local services and processes. But how do we know what the “the right to the city” (RTTC) means when it comes to meaningful and participatory decision-making? And how do we know if participatory efforts called crowdsourcing—a practice articulated in a 2006 Wired article in the context of the …


To Whom Are Directors’ Duties Owed? Evidence From Canadian M&A Transactions, Camden Hutchison Jan 2023

To Whom Are Directors’ Duties Owed? Evidence From Canadian M&A Transactions, Camden Hutchison

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One of the most contentious issues in corporate law is the proper scope of fiduciary duties. Many scholars have argued that fiduciary duties are owed exclusively to shareholders, while others have advocated a broader conception of directors’ fiduciary obligations, potentially encompassing a wide variety of stakeholder and community interests. This debate has both normative and positive dimensions: Not only are there theoretical disagreements as to whom directors’ duties should be owed, there are also more basic disagreements as to what the law actually requires, including the extent to which business norms supplement (or undermine) legal rules. In Canada, at least, …


The Legal Innovation Sandbox, Cristie Ford, Quinn Ashkenazy Jan 2023

The Legal Innovation Sandbox, Cristie Ford, Quinn Ashkenazy

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"The Legal Innovation Sandbox" examines a novel regulatory approach, called the innovation sandbox, in the context of the legal profession. The paper makes the claim that the “sandbox” regulatory model is in fact better suited to fostering innovation in the legal services arena than it is in the financial technology, or fintech, arena in which the sandbox concept developed. However, any effort to transplant a technique from one context to another needs to be carefully considered. This article is comparative across disciplines – financial regulation and legal services regulation – and across jurisdictions – covering the United Kingdom, the United …


The Canadian Digital Services Tax, Wei Cui Jan 2023

The Canadian Digital Services Tax, Wei Cui

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The Digital Services Tax (DST) may never be enacted in Canada. At least that seems to be what most Canadian tax professionals hope for: the draft Digital Services Tax Act (DSTA), released by the federal government in December 2021, has received little meaningful commentary; likely few Canadian taxpayers potentially affected by the DSTA (and their tax advisors) have attempted to learn from experiences of DST compliance in other countries; and the world also has little to learn from Canadian taxpayers’ preparation for a potential DST. This essay highlights three ways in which this collective dismissal of Canada’s proposed DST is …


The Chinese Enterprise Income Tax, Wei Cui Jan 2023

The Chinese Enterprise Income Tax, Wei Cui

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China’s Enterprise Income Tax (EIT) is the world’s largest corporate income tax by revenue, contributes a significant share to China’s total tax revenue, and is clearly the most substantial component of capital taxation in China. Yet scholarly research on the EIT is still limited. This overview chapter outlines the EIT’s main components from a legal perspective, while referring to empirical economic and accounting research that sheds light on these components. It discusses the personal scope of the EIT, so as to identify the significance of the pass-through and the tax-exempt sectors relative to the taxable corporate sector. It then examines …


Freedom Of Expression: Values And Harms, Camden Hutchison Jan 2023

Freedom Of Expression: Values And Harms, Camden Hutchison

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When considering restrictions on socially disfavoured expression, the Supreme Court of Canada has often considered the targeted expression’s “value.” In the seminal cases of Ford v. Quebec and Irwin Toy Ltd. v. Quebec, the Supreme Court articulated the importance of expressive freedom by relating it to three core values: (1) seeking and attaining the truth; (2) participation in democratic institutions; and (3) diversity in forms of individual selffulfillment. Subsequent cases considering restrictions on expression have evaluated the extent to which the targeted expression advances these values. Ironically, although Ford and Irwin Toy embraced a broad conception of expressive freedom, the …


Principles Of Interpretation As Applied To Corporate Articles: A Comment On Rogers V. Rogers Communications Inc., Camden Hutchison Jan 2023

Principles Of Interpretation As Applied To Corporate Articles: A Comment On Rogers V. Rogers Communications Inc., Camden Hutchison

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Last fall, public attention was captured by a contentious boardroom battle among members of the Rogers family for control of Rogers Communications Inc. (“RCI”). In a corporate showdown that drew comparisons to HBO’s Succession, Edward Rogers attempted to replace RCI’s chief executive officer and several independent directors against the wishes of his mother and two sisters. When the board of directors refused Edward’s demands, he petitioned the British Columbia Supreme Court to validate his changes to RCI’s board. The resulting judgement,1 which validated Edward’s actions, serves as a forceful affirmation that articles of a British Columbia company should be interpreted …