Law and Economics Commons^™

The Price Of Access To The Civil Courts In Australia: Old Problems And New Solutions - A Commercial Litigation Funding Case Study, Camille Cameron

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In the past decade litigation funding companies have assumed an increasingly prominent role in commercial litigation and class actions in Australia. The growth of commercial litigation funding is a predictable response to various features of Australia’s costs and fee allocation rules and practices, including the “loser pays” rule, the prohibition on lawyer’s charging contingency fees, the hourly billing practices of lawyers, and the open-ended and unpredictable nature of much civil litigation. This chapter explores the growth of commercial litigation funding in Australia and uses it as a window through which to view how Australia’s costs and fee allocation rules operate …

A Conflict By Any Other Name Would Smell As Foul: A Comment On The Appointment Of A Vice-President Of Pfizer To The Cihr Governing Council, Jocelyn Downie

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If one had to pick the pharmaceutical company most associated with unethical and illegal conduct this past year, it would likely be Pfizer. So it seems reasonable to respond with disbelief and outrage to the federal government’s October 5, 2009 appointment of Dr. Bernard Prigent – Vice President, Medical Director and registered lobbyist for Pfizer Canada – to the Canadian Institutes of Health Research Governing Council (CIHR GC). This is the body that sets the strategic direction for most federally funded health research in Canada. A senior executive from a for-profit pharmaceutical company should not be given a seat at …

Dr. Cézanne And The Art Of Re(Peat)Search: Competing Interests And Obligations In Clinical Research, Robyn Bluhm, Jocelyn Downie, Jeff Nisker

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Clinician researchers have a number of roles, each of which carries specific obligations. There are times when these obligations may be in competition (up to and including conflict) with each other. Using a narrative case study that describes a group of colleagues discussing their clinical department's participation in an industry-sponsored research protocol, we illustrate a number of the obligations faced by clinician researchers, and discuss how competing interests and obligations can lead to ethical problems. The case study is followed by a discussion of the effect of university–industry relations on competing interests and obligations in both clinical research and the …

Precarious Pathways: Evaluating The Provincial Nominee Programs In Canada, Jamie Baxter

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Temporary foreign workers in Canada experience substandard employment relationships, are explicitly denied many formal rights and are practically excluded from most employment protections. Led by a growing emphasis on workers’ temporary status as a root cause of their employment-related vulnerabilities, some advocates, as well as elected officials, are now calling on governments to improve opportunities for workers to attain permanent residency in Canada, primarily for those in lower-skilled occupations. The central aim of this paper is to evaluate whether Provincial Nominee Programs are likely to address the real insecurities faced by vulnerable lower-skilled temporary foreign workers. Given that there are …

Extending Charter Benefits To Canada’S Poor, A. Wayne Mackay

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While the Canadian Charter of Rights and Freedoms has had a major impact on Canada’s political landscape in its first 25 years, its impact on social and economic rights has been minimal. The courts should assume a larger role in advancing the rights of the many Canadians living in poverty and despair.

Judges have traditionally regarded matters of social and economic policy as falling within the expertise of the legislative and executive branches of the state. The Charter has done little to dispel that view. The elected branches of the state must continue to play a major role, but the …

Canada's Evolving Tax Treaty Policy Toward Low-Income Countries, Kim Brooks

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Relative to at least some high-income countries, Canada has been willing to negotiate tax treaties that leave greater jurisdiction to tax (ie. more source jurisdiction) to low-income countries in its tax treaties. Nevertheless, Canada's tax treaty policy has not been overwhelmingly generous. This essay takes as its starting point Alex Easson's 1988 paper, The Evolution of Canada's Tax Treaty Policy Since the Royal Commission on Taxation. Focusing on the evolution of Canada's tax treaty policy since 1988, the essay examines three aspects of Canada's tax treaties that might increase the scope for source-based taxation by low-income countries. First, it examines …

Social And Economic Rights In Canada: What Are They And Who Can Best Protect Them?, A. Wayne Mackay

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This article examines the development and current status of positive social and economic rights in Canada. Exploring the comparative competence of legislatures, courts and human rights tribunals, Wayne MacKay suggests that courts should depart, with caution, from their traditional deferential role to legislators. Due to their flexibility and accessibility, HR Tribunals should supplement the role of the courts and legislatures in giving effect to social and economic rights, which should form part of a holistic package of human rights in Canada.

Power, Parliament And Prorogation: A Canadian Political Drama, A. Wayne Mackay

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Rarely have Canadians (or Americans!) been so riveted by political life in Ottawa as during the late days of November and the early days of December, 2008. The nature of this focus on Canada’s Parliament was not the kind of positive energy that surrounded American President-elect Obama’s historic election victory a few weeks before, but rather a negative and nervous energy characterized by disbelief, disgust and surprise. In a time of economic crisis rivaled only by the Great Depression of the 1930s, Canada was being plunged into a political crisis not seen since 1926, when then-Governor General Byng denied then-Prime …

Barriers To Access To Abortion Through A Legal Lens, Jocelyn Downie, Carla Nassar

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In addressing whether the procedure for obtaining abortions was operating equitably across Canada, the 1977 Badgley Report concluded that for many women, access to abortion was “practically illusory.” Sadly, although abortion on request became legally permissible for Canadian women in 1988, access to a safe and legal abortion remains practically illusory for many women today. A woman seeking an abortion in Canada must overcome numerous barriers. She must find a way to secure for herself some of the limited resources that our health care system provides for abortion. She must also expend her own, often scarce, personal resources: her time, …

Promotion Of The Concept Of The Rule Of Law Through The Implementation Of The Central America Free Trade Agreement, Phillip A. Buhler

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Quoting the Eighteenth Century philosopher Charles de Secondat Montesquieu, “We are free because we live under civil laws.” In the summer of 2006 lawyers and businessmen in the Dominican Republic, the United States and most of Central America experienced full implementation of the Dominican Republic – Central America Free Trade Agreement (hereinafter CAFTA). This regional trade agreement, following on the general model of the North American Free Trade Agreement (NAFTA) and the parameters of the General Agreement on Tariffs and Trade (GATT), is intended to establish a comprehensive legal regime to reduce and eventually eliminate most national barriers to the …

The Taxation Of Aquaculture In Canada: A Comparison With The Taxation Of Agriculture And Its Policy Implications, Faye Woodman

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In Canada, at both the federal and the provincial government levels, the tax rules applicable to agricultural producers under the Income Tax Act and other taxing statutes often apply with relatively few modifications to the aquaculture sector. The agriculture rules differ in significant aspects from those applied to other taxpayers. They also tend to be more generous. Thus, the aquaculture sector operates under regimes of taxation in Canada that may be characterized as preferential, but may also have been developed with the needs and circumstances of agriculture, not aquaculture, in mind. This chapter will examine the rationales underlying the various …

The Allocation Of Profits Between Related Entities And The Oppression Remedy: An Analysis Of Ford Motor Co. V. Omers, Kim Brooks, Anita Anand

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In Ford Motor Co. v. Ontario Municipal Employees Retirement Board, the Ontario Superior Court of Justice reviewed the transfer pricing arrangements between parent and subsidiaries Ford US and Ford Canada in the context of a going-private transaction. Its review was the key to resolving the two main issues in the case: first, did the transfer-pricing arrangements understate Ford Canada's profits so as to undermine the fair value of Ford Canada's shares? And second, did the transfer-pricing arrangement oppress or unduly disregard the interests of Ford Canada's minority shareholders so as to give rise to the oppression remedy?

In this comment, …

Delimiting The Concept Of Income: The Taxation Of In-Kind Benefits, Kim Brooks

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The issue of which in-kind benefits should be taxed and how these benefits should be valued have concerned tax legislators, administrators, and academics since the introduction of the personal income tax system. Building her theoretical analysis on the income concept advanced by Henry Simons and relying on traditional tax policy notions of equity, neutrality, and administrative practicality, the author asserts that employees must be fully taxed on employer-provided in-kind benefits. To this effect, the article offers guidelines for distinguishing between taxable in-kind benefits and non-taxable conditions of employment. The author argues that the correct method of valuation of in-kind benefits …

Learning To Live With An Imperfect Tax: A Defence Of The Corporate Tax, Kim Brooks

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Following an introduction, the paper is divided into two parts followed by a conclusion. Part II reviews a number of objectives of the corporate tax, arguing that they should carry more weight as arguments in favour of the corporate tax than they are often attributed. Furthermore, while it is conceded that the corporate tax is a second or even an nth best tax for achieving these objectives, there are simply no administratively feasible or politically acceptable alternatives to it. The arguments reviewed in the paper are as follows. First, by taxing income from capital, the corporate tax increases the comprehensiveness, …

Women And Children In The Economy: Reflections From The Income Tax System, Faye Woodman

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I have been asked to speak on “women and economics” with specific reference to the Canadian tax system. It is my thesis that the economic vulnerabilities of women and children in this nation are reflected and reinforced in the tax system. Further, it is my view that societal attitudes about who should support, and how we should support, children contribute to a complex synergy within the economic/tax system. This has the potential to produce a new underclass of government dependents who are dependent because, paradoxically, they receive so little support. Finally, I end with a plea for a broader commitment …