Canadian Business Law Journal | Revue Canadienne du droit de commerce

Internationally renowned journal strikes the right balance between commentary on current legislative and case law developments and in-depth analysis of major issues in the corporate, commercial and international arenas.

It is frequently referred to in court judgments at all levels and has established an undisputed reputation as Canada's leading journal of commercial and business law.

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A subscription includes three issues, a bound volume consolidating the issues and online access for one personal workstation. Each bound volume contains a Table of Contents, Table of Cases and detailed Subject Index. During the year you will receive a total of four issues. Complete sets of the Canadian Business Law Journal are also available from 1976 to the present.

Professor Anthony Duggan, B.A., LL.B., LL.M., LL.D., holds the Hon. Frank H Iacobucci Chair in the Faculty of Law at the University of Toronto. He was appointed in 1999. Previously, he held the Henry Bournes Higgins Chair in Law at Monash University, Victoria, Australia. He was Associate Dean at the University of Toronto from 2002-2004 and Sub-Dean of the Faculty of Law, University of Melbourne from 1980-1983. Professor Duggan currently teaches secured transactions, bankruptcy law and trusts. He has published widely in these areas and also in the areas of contract law, consumer credit and consumer protection. Professor Duggan is a member of various professional organizations including the American Law Institute, the International Academy of Commercial and Consumer Law (President, 2012-2014); the Ontario Bar Association Personal Property Security Law Committee; and the Insolvency Institute of Canada.

Canadian Business Law Journal welcome submissions to be considered for inclusion in the CBLJ.

Contributions and editorial correspondence should be sent to tony.duggan@utoronto.ca.

Submissions are reviewed on a continuous basis. Following consideration for eligibility, the editorial team will be in contact with all those who submit articles.

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Article Archives

Canadian Business Law Journal Vol. 57 (2016)

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SYMPOSIUM: THE CANADIAN LAW OF UNJUST ENRICHMENT 10 YEARS AFTER GARLAND
Revising the Reason for Restitution: Garland Ten Years After
Mitchell McInnes
Cost: $50
Format: PDF

In 2004, the Supreme Court of Canada fundamentally revised the reason for restitution. The action in unjust enrichment traditionally allowed relief only if an unjust factor positively favoured recovery. After Garland v. Consumers’ Gas Co., in contrast, liability is imposed unless a transfer is explained by a juristic reason. Though they produce similar results, those two models operate in essentially opposite directions. The former focuses on reasons for reversing transfers; the latter focuses on reasons for retaining enrichments.
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The State of the Law of Unjust Enrichment in Common Law Canada
Lionel Smith
Cost: $50
Format: PDF

More than 10 years after the Supreme Court of Canada’s decision in Garland v. Consumers’ Gas Co., scholars of the Canadian common law of unjust enrichment are still in disagreement as to effects of the decision and as to the overall shape of this part of the law. In particular, there is disagreement as to whether Garland instituted a wholly new approach to the question whether an enrichment should be considered unjust. This article reviews the decisions of the Supreme Court of Canada since Garland and reaches the conclusion that the court has implicitly rejected the view that there is a single overarching principle governing all of the common law of unjust enrichment. The article concludes by suggesting that the future of the common law of unjust enrichment, in Canada and elsewhere, may involve the recognition that this field of law includes not only a multiplicity of ways to determine whether an enrichment is unjust, but also a multiplicity of causes of action.
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Building the Pyramid: Unjust Factors and Juristic Reasons 10 Years After Garland v. Consumers’ Gas Co.
Chris D.L. Hunt and Lou Hamill
Cost: $50
Format: PDF

Whether an enrichment conferred by one party on another is “unjust” and hence must be returned is a question approached very differently in common law and civilian legal systems. The former require the plaintiff to identify an “unjust factor” that justifies reversing the defendant’s enrichment, whereas the latter start from the premise that enrichments must be returned unless the recipient can show a legal basis justifying its retention of the benefit. In 2004, after years of confusion in which these two approaches operated interchangeably, the Supreme Court of Canada affirmed and refined a civilian paradigm in Garland v. Consumers’ Gas Co. Although these frameworks pull in opposite directions, the traditional reasons to reverse at common law remain embedded in Garland’s civilian framework, insofar as the presence of an unjust factor may serve to invalidate a putative reason for retention. In this article, the authors briefly explain this integration of the two systems, and analyze appellate-level decisions rendered over the last decade with a view to assessing the extent to which courts are properly integrating the two approaches to the “unjust” question.
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Article: Development of Good Faith in Canada, Australia and Great Britain
Anthony Gray
Cost: $50
Format: PDF

The common law in Canada, Great Britain and Australia had for many years refused to accept a general contractual doctrine of “good faith”, at least in those terms. Recent decisions in each of these jurisdictions, particularly in Canada, indicate a new acceptance that notions of good faith can and should be applied to contractual relations. These developments are welcomed. This article seeks to answer three questions: (1) whether the common law should recognise such a doctrine; if so, (2) the precise meaning of such a phrase, and (3) how it should be recognised as being applicable.
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Book Review: Tort Law: Challenging Orthodoxy, by Stephen G.A. Pitel, Jason W. Neyers and Erika Chamberlain, eds.
(Joost Blom)
Cost: $50
Format: PDF

These 16 essays are derived from papers given at the Sixth Biennial Conference on the Law of Obligations held at Western University Faculty of Law in July, 2012. The editors are members of the Western Law faculty and the contributors to this volume teach at universities in the United Kingdom (12), Australia (three) and the United States (one). Themes chosen for academic conferences typically have to be suggestive enough to be striking but broad enough to accommodate an array of topics, and “Challenging Orthodoxy” is a good example of the genre. What is interesting is not so much that orthodoxy is being challenged — it is hard to imagine a group of legal academics devoting themselves to celebrating orthodoxy — but the kind of orthodoxies the sixteen authors have chosen to challenge, and the form their challenge takes.
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Book Review: The Law of Contract Damages, by Adam Kramer
(Angela Swan)
Cost: $50
Format: PDF

It is extremely hard to write a useful and coherent analysis of the law of contract damages. It is hard for several reasons. First, there are thousands of cases which have to be considered. While there are overarching (or, depending on the image you prefer, underlying) principles, they are stated at such a level of enerality as sometimes to make them quite unhelpful in giving guidance in the concrete case. In addition, judges do things that are odd and these decisions have somehow to be dealt with — perhaps an individual decision can be re-cast to conform to the applicable principle; perhaps an author has simply to say that the decision is wrong. To add to the author’s problems there is the constant development of the law, often as fashions in damage awards come and go.
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Review Essay: Law and Economics Civilianized: On Ejan Mackaay’s Law and Economics for Civil Law Systems
(Jean-Franc¸ ois Gaudreault-DesBiens)
Cost: $50
Format: PDF

The publication of Ejan Mackaay’s monograph Law and Economics for Civil Law Systems1 is an important event. It is arguably the first comprehensive and comparative monograph published in English — which makes it accessible to all those using this post-modern lingua franca — that successfully bridges in a comprehensive and coherent manner the law and economics analytical framework, whose influence has so far been felt mostly in common law jurisdictions, with civil law concepts. In so doing, it indeed represents an important event, both for civil lawyers and common lawyers. Before
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Article - Regulatory Contest in a Federal Context: Foreign Investment Regimes in Canada and Australia
Megan Bowman, George Gilligan, and Justin O' Brien*
Cost: $50
Format: PDF

This article discusses how Canadian and Australian foreign investment regulatory regimes lack clarity and certainty at the national levels, with concomitant potential to fail to meet OECD soft law requirements of non-discrimination and subsequently dampen investor enthusiasm. This realisation is important in areas of strategic interest such as natural resources investment, which have attracted high levels of foreign direct investment especially through Chinese state owned enterprises. These issues have exacerbated commonwealth-state tensions in both nations as a more restrictive approach to state capital at the national level has conflicted with the self interest of state (Australia), and provincial (Canada), governments in resource-rich sub-national jurisdictions for whom such investment is of crucial strategic importance. 
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Article -  PPSL Values
Clayton Bangsund*
Cost: $50
Format: PDF

The article explores the PPSA’s philosophical underpinnings, revealing a policy of facilitation and a series of values derivative thereof. It identifies and discusses the PPSL values, and then, noting that their utility is best demonstrated in specific context, draws from them a series of evaluative criteria designed to assist in examining and evaluating the deposit account perfection and priority ordering structures of the broadly similar, yet distinct, statutory personal property security regimes of Canada, the United States, Australia and New Zealand. Articulation of the evaluative criteria, in this unique context, is offered as a specimen of the PPSL values’ utility, and furnishes fodder for discussion of the PPSL values’ interplay, engagement (or lack thereof) and relative weighting. With reference to the various statutory regimes, the article furnishes a sampling of comparative evaluative analysis to demonstrate the normative evaluative utility of the criteria and the PPSL values underlying them. The article concludes by recognizing and reasserting that the PPSL values can, and should, play a key role in guiding the ongoing development and design of a legal framework aimed generally at the promotion of commercial development.
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Commentary - The Lessons of Tervita
Edward M. Iacobucci
Cost: $50
Format: PDF

The Supreme Court of Canada took a rare dip in the waters of competition policy with its recent decision in Tervita.1 The case has significant implications for a number of different aspects of Canadian competition law, perhaps most obviously with respect to the efficiencies defence to mergers, but also in at least one other important respect: when deciding how to proceed in a given case, how much weight should the competition authorities and the courts pay to the internal plans of a firm involved in a controversial competition matter?

This comment begins with a focus on the second, perhaps underappreciated aspect of Tervita.2 The case involved landfill businesses related to the oil and gas industry in British Columbia. Tervita Corp. held two of four permits that had been issued for secure landfills that could accept hazardous waste from oil and gas operations. Babkirk Land Services Inc., a wholly owned subsidiary of Complete Environmental Inc., held a third permit, though it was not in use at the time, and a fourth was not only unused, but the landfill facility had not been constructed. Babkirk was a plausible potential entrant into a market in which only Tervita was otherwise selling secure landfill services. Tervita and Complete entered into an agreement pursuant to which Tervita would acquire Babkirk. The Commissioner of Competition challenged the merger.
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Book Review - The Restatement Third: Restitution and Unjust Enrichment, C. Mitchell and W. Swadling, eds. (Oxford, U.K., Hart Publishing, 2013), xxvii and 309 pp., £65
Mitchell McInnes
Cost: $50
Format: PDF

The publication of the Restatement of the Law of Restitution: Quasi Contracts and Constructive Trusts in 1937 was a momentous event for the law of unjust enrichment. That obviously was true within the United States, but the work’s impact extended to the British Commonwealth (as the institution was then known) as well. Its influence was particularly pronounced in Canada, where courts naturally looked to their nearest neighbour for occasional guidance. The Restatement’s impact was heightened during acrucial period of restitutionary development in the 1970s and 1980s, when the Supreme Court of Canada was led by a former student of one of the Restatement’s principal reporters.

The explanation for the Restatement’s international success is not difficult to discern. As Lord Denning once observed, “local conditions” occasionally lead to “different solution[s]”, but for members of the common law family, the “fundamental outlook is the same on all the things that really matter.” In terms of broad orientation, for instance, America, England, and Canada adhere to “the same concept of justice, the same tradition of freedom, and the same hatred of oppression.” More specifically within the restitutionary context, they share a fundamental commitment to liberal values, individual autonomy, and personal property. Accordingly, in the absence of similar works to call their own, Anglo-Canadian lawyers naturally turned to the Restatement, and wherever one looked in the common law world, the unjust enrichment principle took much the same form.
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Review Essay - Banking Fragility and Financial Crises
(Dan Ciuriak)
Cost: $50
Format: PDF

The history of banking crises grows richer with each passing decade, indeed with each passing year. Cyprus, Greece and Russia have recently added new chapters (the latter two still in progress). Given financial sector tremors (quakes?) in China, the eurozone, and even the United States (yet again), the end seems hardly in sight.

Theories abound. Some see banking crises as inherent in the high degree of leverage of banks under the now universal fractional reserve system in the face of volatile asset prices. A general shock that correlates seemingly uncorrelated risks undermines the defensive strategy of portfolio diversification and lays bare the basic riskiness of leverage. Shocks happen; crises ensue. Others see the problem stemming from a seemingly irrational combination of optimism and amnesia that leads bankers, regulators and investors alike to believe that “this time is different”. Mixing metaphors, hubris that technical lessons from the last war were learned leads all concerned to think that it’s safe to go back in the water; crises ensue. Some put the blame squarely on the bankers, arguing that,unless bankers’ greed is somehow tackled through criminal penalties and claw-back of bankers’ bonuses, more crises are inevitable. This stands in opposition to the “greed (a.k.a. selfinterest)is good” school of thought, which was haplessly blindsided by the 2007/2008 crisis (a case of the Randian revolution eating its children?). Still others place the blame on government regulation, which creates inappropriate incentives for risk taking (“moral hazard”).

Charles Calomiris and Stephen Haber’s Fragile by Design, which prompts this review essay, while clearly sympathetic to this last school of thought, takes a somewhat different approach to this issue. It argues that banking crises may be inevitable for some countries but not for all — it all depends on the bargains struck between bankers and politicians. Importantly, it also stands out by offering a unifying explanation for systematic differences across countries in the domestic supply of credit as well as the susceptibility of banking systems to failure.
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Review Essay - Economic Efficiency, Normative Account-giving and Corporate Law
(Bryce Tingle)
Cost: $50
Format: PDF

Something has changed in corporate law since Enron. The question is whether those changes go to the core of what has traditionally been seen as a nexus of private contracts. Have the public law intrusions into corporate governance represented by the Sarbanes-Oxley and Frank-Dodd era reforms2 fundamentally changed the nature of corporate law, or are they mistaken intrusions into a field best left free of one-size-fits-all regulation? As Professor Moore notes in his fascinating Corporate Governance in the Shadow of the State, the answers to these questions matter, because how we characterize corporate law determines what we view as permissible legal moves in the field.

For most traditional corporate law scholars, the changes since Sarbanes-Oxley are alien to corporate law: they are either mistaken or, properly considered, not part of corporate law at all, but an excrescence of securities law. In contrast, Moore believes our current situation is better understood as a necessary regulatory reaction to limitations to the effective private ordering of corporations. He argues that as these failures arise out of the nature of the corporate form, their public law remedies should be seen as an organic part of corporate law. This would remove a major conceptual barrier to increased state involvement in the relationships that arise around corporations.
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Article: Protecting Reasonable Expectations: Mapping the Trajectory of the Law
Edward J. Waitzer and Douglas Sarro
Cost: $50
Format: PDF

The doctrine of reasonable expectations has evolved into a powerful tool for judicial and regulatory activism and, as a result, a bellwether for the trajectory of the law. The concept has broadened — both in scope and in the range of potential claimants. Yet it has been used to achieve goals that are remarkably consistent across different areas of law: first, to require powerful actors to treat stakeholders fairly, which entails treating them with honesty and avoiding actions that would impose unnecessary or disproportionate costs on them; second, to uphold the integrity of legal or regulatory regimes by remedying actions that frustrate their purpose by allowing an actor to avoid the obligations associated with these regimes.
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Article: The Reasonable Expectations of Creditors under the Oppression Remedy: Preserving Coherence
Gabriel Faure
Cost: $50
Format: PDF

The oppression remedy protects the reasonable expectations of creditors. As the courts look “beyond legality” when assessing expectations, their intervention challenges explicit legal rules. It is submitted that courts seek to curb opportunistic behavior by those who control the corporation while preserving coherence within the law. Creditors have expectations on the information provided by the corporation and the preservation of its assets which are consistent with private law. Firstly, creditors have expectations in respect of declarations made at the time of the formation of a contract. Nevertheless, creditors cannot expect the corporation to voluntarily disclose information to them without being required to do so. Also, statements made outside of a contractual framework and accompanied by a disclaimer or warning do not give rise to expectations. Secondly, creditors have the expectation that the corporation will not tunnel the corporate assets by disposing of them for less than fair value, paying unreasonable executive compensation or granting unfair preferences to certain creditors.
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Article: The American Bankruptcy Institute’s Proposed Chapter 11 Reforms: Some Canadian Thoughts
Stephanie Ben-Ishai
Cost: $50
Format: PDF

The American Bankruptcy Institute (the “ABI”) recently undertook an in-depth, three-year study, focusing exclusively on the resolution of financially distressed businesses under Chapter 11 of the Bankruptcy Code. This article describes the ABI’s process for studying and making recommendations on the reform of Chapter 11 and compares this process with the Canadian approach to law reform in the insolvency context. Next, the article considers a key aspect of the recommendations coming out of the ABI study: s. 363 sales or in Canada, using the Companies’ Creditors Arrangement Act (the “CCAA”) to liquidate.
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Commentary: Chevron Corp. v. Yaiguaje: Canadian Law and the New Global Economic and Environmental Realities
Jason MacLean
Cost: $50
Format: PDF

Canadian courts have an undistinguished record in coming to the assistance of people who have suffered physical injury, loss of land or serious environmental damage as the result of the activities of Canadian companies abroad. Proposed legislative measures have also been unsuccessful. Prudence and caution are sometimes admirable judicial qualities, but not when it comes to studied inertia in adapting old legal principles to deal with new realities at home and abroad.
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Review Essay: Solicitor-Client Privilege, by Adam Dodek
(Randal N.M. Graham)
Cost: $50
Format: PDF

Imagine a world without solicitor-client privilege. One unhappy fact about this world is that it would have no room for Adam Dodek’s excellent book, Solicitor-Client Privilege, a subject to which we will return in a moment. But an even more unsettling feature of this hypothetical world is that its judicial system (if you can imagine one operating without solicitor-client privilege) would be hamstrung in its efforts to search for truth.
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Review Essay: Ruin and Redemption: The Struggle for Canadian Bankruptcy Law, 1867-1919, by Thomas G.W. Telfer
(Roderick J. Wood)
Cost: $50
Format: PDF

In Ruin and Redemption: The Struggle for a Canadian Bankruptcy Law, 1867-1919, Professor Thomas Telfer explores the reasons for the repeal of the Insolvent Act of 1875 and also how it was that this legal vacuum was able to endure for nearly four decades despite that it is today widely accepted that bankruptcy law fulfills important social and economic objectives. Telfer begins by identifying two fundamental policies of bankruptcy law, namely the equitable distribution of assets and the discharge of the debtor. The plan of his book is to examine the influence of ideas, interests and institutions on the public debate over the role of bankruptcy law in three periods: the period leading up to the repeal of the Insolvent Act of 1875, the interregnum in which Canada vacated the field, and the period leading to the reintroduction of bankruptcy law.
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Canadian Business Law Journal Vol. 56 (2015)

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ARTICLES


This is the Law That National Money Mart Built: One Company’s Role in Constructing Canadian Consumer Arbitration Law
Shelley McGill
Cost - $50
Format - PDF

In Seidel v. TELUS Communications Inc., Dell Computer Corp. v. Union des consommateurs and Rogers Wireless Inc. v. Muroff, the Supreme Court of Canada applied the policy in favour of arbitration to limit consumer access to class actions. Absent from this list of giant corporations that have used arbitration as a barrier, not an alternative, is National Money Mart, a company that has battled consumer class actions across seven provinces, challenged courts of appeal in three provinces and been denied leave to the Supreme Court of Canada five times. This article considers National Money Mart’s role in framing Canadian consumer arbitration law.
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Supplementing PPSA Priorities: The Use and Abuse of Common Law and Equitable Principles
Roderick J. Wood
Cost - $50
Format - PDF

The modernized Canadian secured transactions regimes provide that common law and equitable principles supplement the statute and continue to apply unless they are inconsistent with the statute. This article examines the application of the supplementary principles of the common law and equity in relation to the priority structure of the Personal Property Security Act (PPSA).
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The History of the Companies’ Creditors Arrangement Act and the Future of Restructuring Law in Canada
Alfonso Nocilla
Cost - $50
Format - PDF

This article examines the legislative history of the Companies’ Creditors Arrangement Act (CCAA) in light of recent developments. The CCAA is Canada’s statute of choice for resolving large, complex corporate insolvencies. The Act was designed to facilitate the reorganization of insolvent companies, with a view to their continued survival. More recently, however, courts have approved the use of the CCAA as a liquidation mechanism. Specifically, the Act is now commonly used to sell substantially all of the assets of insolvent companies on a going-concern basis, with no possibility of those companies surviving after the CCAA process is concluded — these proceedings are known as “liquidating CCAAs”. Liquidating CCAAs represent a significant change in CCAA law which has passed largely unexamined in the jurisprudence.
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Canada’s Enhanced CSR Strategy: Human Rights Due Diligence and Access to Justice for Victims of Extraterritorial Corporate Human Rights Abuses
Penelope Simons
Cost - $50
Format - PDF

This article will assess the Canadian government’s new corporate social responsibility (CSR) policy against the requirements and recommendations of the UN Guiding Principles. It will contend that although the policy is a step in the right direction, without important modifications, the policy will fail to meet these widely accepted global standards and to prevent behaviour by Canadian extractive companies that violates human rights. As such it will not serve to enhance the poor global human rights reputation of Canada’s extractive industry.
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Business, Human Rights, and Canadian Mining Lawyers
Sara L. Seck
Cost - $50
Format - PDF

In 2011, the United Nations Human Rights Council endorsed Guiding Principles on Business and Human Rights. According to the second pillar of the Guiding Principles, all businesses have a responsibility to respect internationally recognized human rights, not as a direct obligation under international law, but because this is what society expects. The business responsibility to respect rights has subsequently been embedded to differing degrees in many international corporate social responsibility standards including, for example, the Organisation for Economic Co-operation and Development’s Guidelines for Multinational Enterprises. Select individual companies, including large mining companies, and mining industry associations, have explicitly embraced the business responsibility to respect rights in policies and guidance documents. This article provides a preliminary assessment of the implications of the Guiding Principles for lawyers who advise businesses in the mining sector, and for law firms as businesses themselves.
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Reaffirmation of Debt in Consumer Bankruptcy in Canada
Stephanie Ben-Ishai
Cost - $50
Format - PDF

The legal treatment of reaffirmation of debt (or the reinstatement of a debt obligation) in the consumer bankruptcy context can be situated within a framework of, at times, competing interests: the debtor’s right to a “fresh start” and the creditor’s right to repayment. This article surveys applicable federal and provincial laws, as well as the law in the United States, in the context of the federal government’s parliamentary committee review of Canadian bankruptcy and insolvency legislation (under way at the time of writing). Based on an analysis of the current and historical treatment of reaffirmation of debt in consumer bankruptcy in Canada and the United States, the article makes proposals for reform.
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Experiential Learning in Restructuring Law
Roderick J. Wood and Rick T.G. Reeson
Cost - $50
Format - PDF

Law schools formerly conceived their mission more narrowly than they do today. The primary goal was to train students to think like lawyers. This is no longer viewed as the only objective. Law schools must also impart professional skills so that students will know how to act like lawyers. The creation of an advanced course on corporate restructuring law illustrates how substantive legal knowledge, legal skills and professional identity can be developed through the use of simulations. The course used two linked simulations: first, a multiparty chambers application for an extension of a stay of proceedings and other relief under the Companies’ Creditors Arrangement Act; and second, the negotiation of a plan of arrangement culminating in a meeting of creditors in which the plan is accepted or rejected.
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The Constitutionality of the PPSA: “Much Ado about Nothing?”
Ronald C.C. Cuming
Cost - $50
Format - PDF

In a comment published in the March, 2015 issue of the Canadian Business Law Journal,1 Mr. Bradley Crawford, a widely recognized scholar and practitioner in, among other areas, banking and bills of exchange law, addressed two tangentially related matters: constitutional jurisdiction over new forms of payment and the constitutionality of a few provisions of the Personal Property Security Act.2 This article deals only with the latter. It responds to Mr. Crawford’s contention that several provisions of the Personal Property Security Act are unconstitutional in that they deal with matters that are within the “exclusive” jurisdiction of Parliament and, consequently, are ultra vires the provincial legislatures.
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Rejoinder: Misdirected Criticisms
Bradley Crawford
Cost - $50
Format - PDF

In his article “The Constitutionality of the PPSA: Much Ado About Nothing?”,1 Saskatchewan law Professor R.C.C. Cuming has written at some length about a topic close to his life-long interest and intellectual leadership in the development of personal property security law. Although his intention is clearly to take issue with the reasoning and opinions in my earlier commentary, “Money in Constitutional Law: The Demise of Debtor-Initiated Payments?”,2 most of his arguments have nothing to do with the thesis I presented. He challenges me on propositions I did not assert; he attributes to me conclusions I did not draw; and he fails to note that the focus of my criticism is directed to only a few sections — not the whole of the provincial Personal Property Security Acts (PPSAs).
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Rules- or Principles-Based Regulation? Factors for Choosing the Best Language Strategy
John Pearson Allen
Cost - $50
Format - PDF

There is often a debate among regulators as to whether detailed, prescriptive rules should be published with known, after-the-fact penalties (a “rules approach”), or whether regulators should publish salutary objectives and engage participants in a before-thefact, best practices dialogue (a “principles approach”). The debate reflects a dichotomy between language strategies: the rules approach requires the regulator to mandate as much as possible all of the legal dos and don’ts, so that (ideally) the regulated will know in advance what to do in each situation. The principles approach is more co operative: the regulator communicates general principles or objectives to achieve, and calibrates the interpretation of those principles over time as the need arises, through dialogue with the regulated and with stakeholders.
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COMMENTARIES


Specific Performance, Mitigation and Corporate Groups: A Comment on Southcott Estates Inc. v. Toronto Catholic District School Board
Angela Swan and Jakub Adamski
Cost - $50
Format - PDF

The Supreme Court’s decision in Southcott Estates Inc. v. Toronto Catholic District School Board1 raises again the issue of the availability in Canada of specific performance of a contract for the purchase and sale of land. The question before the court — whether a party seeking specific performance as a remedy for a breach of an agreement of purchase and sale of land must also seek to mitigate its damages — followed from its radical alteration of the law of specific performance in Semelhago v. Paramadevan.2 In this comment, we shall examine the extent to which the results in these two cases are consistent by exploring the application of the principle of avoidable harms, i.e., the doctrine of mitigation.
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Tsilhqot’in Nation v. British Columbia: Aboriginal Title and Section 35
Harry Swain and James Baillie
Cost - $50
Format - PDF

The headline result of Tsilhqot’in Nation v. British Columbia1 is that the Supreme Court of Canada confirmed the Aboriginal title of the Tsilhqot’in Nation in more than 1,750 square kilometres of land on which about 200 members2 of the nation live. But, more importantly, this is only the most recent in a continuing line of Supreme Court of Canada cases3 breathing remarkable life into the cryptic s. 35(1) of the Constitution Act, 19824 which emerged late in the constitutional process. It apparently received comparatively little analysis before becoming part of Canada’s constitution.5 This comment provides an overview of the decision in Tsilhqot’in and critically analyzes some of its key implications.
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Money in Constitutional Law: The Demise of Debtor-Initiated Payments?
Bradley Crawford
Cost - $50
Format - PDF

The proliferation of novel methods of payment1 and the introduction of Bitcoins and other novel forms of money2 in recent years raise a question as to whether the constitutional authority to enact valid laws governing money is vested by the Constitution Act, 18673 in the federal Parliament or in the provincial legislatures. Both Parliament and most of the provincial legislatures have ventured modestly into the field of monetary law in ways that have not yet raised any serious conflict.4 But the very fact of such activity at both levels is indicative of potential difficulties in future if it becomes necessary to control the providers of new forms of money, new methods of making payments and transfers, and to clarify the rights of transferees and the duties of transferors of money in all its forms.
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The Obligation to Perform in Good Faith: Comment on Bhasin v. Hrynew
Angela Swan
Cost - $50
Format - PDF

The facts in Bhasin v. Hrynew were complicated but for the purposes of this comment can be shortly stated. Mr. Bhasin was an “enrollment director” and worked for a company called Canadian American Financial Corp. (Canada) Limited, (“Can-Am”), selling registered educational savings plans. The agreement was called a “commercial dealership agreement”; it was not a franchise.2 Mr. Hrynew was another director who also worked for Can-Am on the same basis. Mr. Hrynew coveted Mr. Bhasin’s business. Can-Am was required by the Alberta Securities Commission to appoint a compliance officer. Can-Am, working with Mr. Hrynew and against Mr. Bhasin, appointed Mr. Hrynew as its compliance officer, called a “provincial trading officer”, falsely telling Mr. Bhasin — who objected strenuously to the appointment — that Mr. Hrynew’s appointment was required by the Commission.
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The Freezing Assets of Corrupt Officials Act: A Critical Analysis
Bradley Crawford
Cost - $50
Format - PDF

The Freezing Assets of Corrupt Foreign Officials Act1 was added to the federal statute book in 2011 without public fanfare or, apparently, much official or public consideration.2 That now appears to have been unfortunate, and to have produced a deeply flawed legislative instrument that ignores the rule of law in sanctioning individuals on unproven allegations by their political opponents abroad, and serves chiefly as the government’s instrument to curry favour with select ethnic communities of voters in Canada.
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REVIEW ESSAYS AND BOOK REVIEWS


The Law of Private Nuisance, by Allan Beever
(Lewis Klar)
Cost - $50
Format - PDF

Beever’s book, The Law of Private Nuisance, is an engaging, insightful, and eminently readable text on an area of law which has been relatively under-theorized and somewhat neglected.1 Rarely would I say of a legal text book that it was a “great read” which I could hardly put down. I do, however, say it of this book.
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A View from the Trenches: Start-up and Growth Companies in Canada: A Guide to Legal and Business Practice, by Bryce Tingle
(Edward Waitzer)
Cost - $50
Format - PDF

As someone who, like the author, tries to reflect on the fish bowl in which we operate, it was hard not to enjoy and learn from Bryce Tingle’s practical presentation and policy-oriented ruminations on the issues — legal and otherwise — confronting start-up and growth companies in Canada. The author’s credentials are impeccable. A seasoned practitioner and (more recent) academic, with an abiding interest in the practical and policy issues that challenge small business people, as well as their advisors and regulators, Mr. Tingle is the real deal. This becomes clear as we read about issues he has dealt with and thought about in practice and theory. I am confident that others of like mind — whether students, professional advisors, entrepreneurs or business operators — will come away from reading the book somewhat more enlightened and refreshed by Mr. Tingle’s curiosity, insights and perspectives.
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Corporate Governance after the Financial Crisis, by Stephen Bainbridge
(Sarah Bradley)
Cost - $50
Format - PDF

In Corporate Governance after the Financial Crisis, Professor Stephen Bainbridge explores an important shift in the dynamics of corporate law in the United States in recent years, from a legal arena characterized primarily by horizontal competition between Delaware and other states to one significantly influenced by vertical competition between Delaware and the federal government. Bainbridge comments on this shift by examining the impact of the Sarbanes-Oxley Act1 and the Dodd-Frank Act2 on corporate governance and evaluating the efficiency of this new federal competition dynamic. In doing so, he takes readers on a thought-provoking tour of corporate governance in the modern era and calls into question two of the most venerated idols of recent governance reforms: the independent director and the empowered shareholder.
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Estoppel, by Bruce MacDougall
(Ben McFarlane)
Cost - $50
Format - PDF

Not too long ago, the practitioner or academic searching for a thorough treatment of estoppel had to turn to Spencer Bower’s Estoppe by Representation. That work, the 4th edition of which was published in 2004,1 remains a very useful source, but it was joined in 1998 by The Law of Waiver, Variation, and Estoppel (the 3rd edition of which appeared in 2012),2 and in 2006 by K. Handley’s Estoppel by Conduct and Election.3 This outbreak of interest in estoppel, a subject of great practical importance and no little academic interest, is to be welcomed; for purposes of disclosure rather than advertisement, it should also be mentioned that The Law of Proprietary Estoppel, written by your current reviewer, is a recent addition.4 None of the aforementioned books, of course, focuses on Canadian law, and Bruce MacDougall’s comprehensive and thoughtful work provides a great service not only to practitioners in Canada’s common law jurisdictions (at some points, interesting parallels with Que´bec law are hinted at,5 but the book’s focus is justifiably on the common law) but also to those with an academic interest in comparing and contrasting the operation of estoppel in different jurisdictions.
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The Construction of Commercial Contracts, by J.W. Carter
(Angela Swan)
Cost - $50
Format - PDF

This is a very curious book. On the one hand, it purports to lay out an approach to the interpretation1 of commercial contracts that adopts a “commercial construction”;2 on the other, it is obsessively focused on “exclusionary rules”. On the one hand, it offers a useful analysis of some general issues of interpretation; on the other these insights are buried in an extraordinarily detailed analysis of issues that I simply do not understand—or, to be more precise, whose importance seems to me to be greatly exaggerated.
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Classifying Tort Law Defences: (Why) Does it Matter? Tort Law Defences, by James Goudkamp
(Erika Chamberlain)
Cost - $50
Format - PDF

James Goudkamp’s Tort Law Defences fills a startling gap in tort law scholarship, which has not previously made a serious attempt to classify or theorize about defences. One may speculate on the reasons for this lacuna, but Goudkamp’s effort to address it is highly commendable. He has provided a broad survey of the types of arguments raised by defendants in tort claims, separating out “denials” from “defences,” and classifying the latter as “justification” defences or “public policy” defences. His analysis covers doctrines from the United Kingdom, Canada, Australia and New Zealand, and also addresses relevant portions of the American Restatement. It describes a straightforward and orderly system for categorizing defences in tort law that can be understood by non-specialists.
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Intermediated Securities – The Impact of the Geneva Securities Convention and the Future European Legislation, by Pierre-Henri Conac, Ulrich Segna, and Luc The´venoz
(Mohamed F. Khimji)
Cost - $50
Format - PDF

Historically, investment securities were held and transferred on the basis of a register maintained by the issuer or on the basis of physical possession of security certificates deemed to be negotiable instruments. However, modern securities holding and settlement systems, whereby investors hold securities through intermediaries,1 have resulted in various domestic and international initiatives being undertaken, which are focused on efforts toward establishing a new legal framework that supports them adequately.2 This book is a collection of 13 essays written by various authors; all of whom participated in and presented papers at an international conference held in Luxembourg in September, 2010 for the purpose of discussing two international initiatives dealing with intermediated securities: the UNIDROIT Convention on Substantive Rules regarding Intermediated Securities (the “Geneva Securities Convention”) 3 and the Securities Law Directive being prepared by the European Commission (the “SLD”).4
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Landmark Cases in Land Law, by Nigel Gravells
(Jonnette Watson Hamilton)
Cost - $50
Format - PDF

Landmark Cases in Land Law is the sixth volume in Hart’s Landmark Cases series of collected essays reappraising leading English cases. As was the case for other volumes in the series,1 the authors of each of the 11 essays were free to choose their cases and their treatment of their selected cases. Despite this lack of constraint, the essays are of a uniformly high quality: well-written, thoroughly researched and doctrinally insightful. The essays are also compelling because each author emphasizes the rich context of their chosen case, whether historical, social, geographical or theoretical, and each engages with the question of whether their chosen case deserves landmark status.
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Canadian Business Law Journal Vol. 55 (2014)

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Canadian Business Law Journal Vol. 54 (2013)

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Canadian Business Law Journal Vol. 53 (2012)

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Canadian Business Law Journal Vol. 52 (2011)

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Canadian Business Law Journal Vol. 51 (2010)

    coming soon