My response to the Canadian government's consultation on a modern copyright framework for online intermediaries. The proposals made by the government are vague and uninformed. More serious research needs to done.
{"title":"Response to Canadian Government's Consultation on a Modern Copyright Framework for Online Intermediaries","authors":"L. Macklem","doi":"10.2139/ssrn.3857239","DOIUrl":"https://doi.org/10.2139/ssrn.3857239","url":null,"abstract":"My response to the Canadian government's consultation on a modern copyright framework for online intermediaries. The proposals made by the government are vague and uninformed. More serious research needs to done.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116243947","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Finance rests on a process of abstraction, based on various material devices that have been studied by economic sociologists in recent years. The fact that many of those devices are legal in nature has not attracted much attention, even though financial instruments are typically embodied in legal documents. This paper argues that interactions involving legal documents shape both financial markets and their regulation, by specifying the contextual elements that will be deemed relevant in interpreting financial commitments. It takes as a case study the emergence of swaps since the 1980s. Through their work in standardizing, commenting, and litigating swaps contracts, bankers’ lawyers were able to recast obligations between banks and their clients in more abstract terms, discarding all references to specific business projects. Such abstraction simultaneously allowed the spectacular development of swaps markets, their positioning on the fringes of regulations, and the strengthening of bankers’ prerogatives against their clients.
{"title":"Legal Documents as Means of Financial Abstraction: How the Bankers’ Lawyers Constructed Swaps and Changed Finance","authors":"Pascale Cornut St‐Pierre","doi":"10.2139/ssrn.3792576","DOIUrl":"https://doi.org/10.2139/ssrn.3792576","url":null,"abstract":"Finance rests on a process of abstraction, based on various material devices that have been studied by economic sociologists in recent years. The fact that many of those devices are legal in nature has not attracted much attention, even though financial instruments are typically embodied in legal documents. This paper argues that interactions involving legal documents shape both financial markets and their regulation, by specifying the contextual elements that will be deemed relevant in interpreting financial commitments. It takes as a case study the emergence of swaps since the 1980s. Through their work in standardizing, commenting, and litigating swaps contracts, bankers’ lawyers were able to recast obligations between banks and their clients in more abstract terms, discarding all references to specific business projects. Such abstraction simultaneously allowed the spectacular development of swaps markets, their positioning on the fringes of regulations, and the strengthening of bankers’ prerogatives against their clients.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131958105","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article explores a series of rent-seeking behaviors and fiduciary deficits that are playing a role in the “growth” and demise of U.S. companies. Start-up financing occurs through exemptions that remove disclosure obligations required in public markets, assuming that private ordering suffices. The exemptive-privilege premise is that parties to financing rounds will be faithful agents, i.e., fiduciaries, to their sources of capital. Where there are conflicts of interest, fiduciary deficits will arise unless either the threat of litigation for breaches of duty sufficiently deters the resulting opportunism or the sources of capital are themselves sufficiently watchful and savvy to combat the opportunism. As private capital sources become more numerous and diverse, the latter may not happen so reliably. We examine this territory through a business-school like case study of WeWork, one of the most recent examples of failed private ordering and one where the prescribed corporate governance mechanisms failed to fill the gaps. WeWork’s extraordinary growth over eight rounds of financing both strengthened the hand of its CEO, Adam Neumann and concealed danger signs. Indeed, in the absence of required disclosure, fiduciary duties take on extra significance. Yet, the WeWork board exhibited multiple fiduciary deficits resulting in what is a cautionary story about governance failure and a warning to those who are focused on expanding “access” to these funding rounds In short, the funding and governance systems are not designed for long-term “startup” governance, and WeWork reveals the systemic slack and flaws. Our exploration of the motivations, incentives and opportunities in start-up financing reveals an accumulating set of deficits that makes the current state of affairs more problematic than the conventional account would suggest. From founder control enabling self-centered, biased and risky behaviors, to funders with diverse incentives and capital sources, to start-up market “valuations” issues, the result is failed information-forcing systems and governance safeguards and directors who focus on constituent protections and not on their fiduciary duties.
{"title":"Corporate Adolescence: Why Did 'We' not Work?","authors":"Donald C. Langevoort, Hillary A. Sale","doi":"10.2139/SSRN.3762718","DOIUrl":"https://doi.org/10.2139/SSRN.3762718","url":null,"abstract":"This article explores a series of rent-seeking behaviors and fiduciary deficits that are playing a role in the “growth” and demise of U.S. companies. Start-up financing occurs through exemptions that remove disclosure obligations required in public markets, assuming that private ordering suffices. The exemptive-privilege premise is that parties to financing rounds will be faithful agents, i.e., fiduciaries, to their sources of capital. Where there are conflicts of interest, fiduciary deficits will arise unless either the threat of litigation for breaches of duty sufficiently deters the resulting opportunism or the sources of capital are themselves sufficiently watchful and savvy to combat the opportunism. As private capital sources become more numerous and diverse, the latter may not happen so reliably. \u0000 \u0000We examine this territory through a business-school like case study of WeWork, one of the most recent examples of failed private ordering and one where the prescribed corporate governance mechanisms failed to fill the gaps. WeWork’s extraordinary growth over eight rounds of financing both strengthened the hand of its CEO, Adam Neumann and concealed danger signs. Indeed, in the absence of required disclosure, fiduciary duties take on extra significance. Yet, the WeWork board exhibited multiple fiduciary deficits resulting in what is a cautionary story about governance failure and a warning to those who are focused on expanding “access” to these funding rounds \u0000 \u0000In short, the funding and governance systems are not designed for long-term “startup” governance, and WeWork reveals the systemic slack and flaws. Our exploration of the motivations, incentives and opportunities in start-up financing reveals an accumulating set of deficits that makes the current state of affairs more problematic than the conventional account would suggest. From founder control enabling self-centered, biased and risky behaviors, to funders with diverse incentives and capital sources, to start-up market “valuations” issues, the result is failed information-forcing systems and governance safeguards and directors who focus on constituent protections and not on their fiduciary duties.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130071921","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The question of fairness is currently in the spotlight in discussions around artificial intelligence (AI). As AI is increasingly adopted in the banking sector, it is important for enablers to ensure that AI-deployed decisions respect fundamental rights, including equality rights, both legally and ethically. This will likely entail novel applications of existing anti-discrimination legislation. In this paper, we shed a critical light on issues of fairness in the banking context by applying equality rights frameworks to AI, using credit models as an exemplar. The paper is geared toward bankers, lawyers and judges seeking to understand and apply the law and develop governance practices for AI models used by Canadian financial institutions (FIs). We argue that, to a significant extent, existing legal and regulatory frameworks “reach” AI deployed by FIs. Considering the potential issue of unfairness in particular, we examine the landscape of Canadian human rights legislation and how anti-discrimination law mechanisms can be used to uphold the principle of fairness in AI- driven decisions. The paper concludes by discussing the importance of robust AI governance and outlining best practices for developing robust governance frameworks at the institutional level. La question de l’equite est actuellement a l’honneur dans les discussions concernant l’intelligence artificielle (l'IA). Puisque l’IA est de plus en plus adoptee dans le secteur bancaire, il est important que les facilitateurs de l’IA s’assurent que les decisions deployees par celle ci respectent les droits fondamentaux, notamment les droits a l’egalite, tant sur le plan juridique que sur le plan ethique. Il est a prevoir que la tâche donnera naissance a des applications novatrices de la legislation antidiscrimination actuelle. Dans le present article, nous jetons un regard critique sur des questions d’equite dans le contexte bancaire en appliquant a l’IA des cadres d’analyse relevant des droits a l’egalite, les modeles de credit servant ici d’exemple. L’article s’adresse aux banquiers, aux avocats et aux juges qui cherchent a comprendre et a appliquer le droit et a elaborer des pratiques en matiere de gouvernance applicables aux modeles d’IA utilises par les institutions financieres canadiennes (les institutions financieres). Nous faisons valoir que, dans une large mesure, les cadres legislatifs et reglementaires actuels « atteignent » l’IA deployee par les institutions financieres. Sur la question eventuelle de l’iniquite tout particulierement, nous nous penchons sur le portrait legislatif au Canada en matiere de droits de la personne et sur la question de savoir comment les mecanismes prevus par les lois antidiscrimination peuvent servir a defendre le principe de l’equite dans les decisions animees par l’IA. En conclusion, l’article traite de l’importance d’une gouvernance robuste vis a vis de l’IA et esquisse des pratiques exemplaires permettant d’elaborer des cadres de gouvernance robuste
{"title":"AI Governance in Canadian Banking: Fairness, Credit Models, and Equality Rights","authors":"Virginia Torrie, Dominique Payette","doi":"10.2139/ssrn.3736926","DOIUrl":"https://doi.org/10.2139/ssrn.3736926","url":null,"abstract":"The question of fairness is currently in the spotlight in discussions around artificial intelligence (AI). As AI is increasingly adopted in the banking sector, it is important for enablers to ensure that AI-deployed decisions respect fundamental rights, including equality rights, both legally and ethically. This will likely entail novel applications of existing anti-discrimination legislation. In this paper, we shed a critical light on issues of fairness in the banking context by applying equality rights frameworks to AI, using credit models as an exemplar. The paper is geared toward bankers, lawyers and judges seeking to understand and apply the law and develop governance practices for AI models used by Canadian financial institutions (FIs). We argue that, to a significant extent, existing legal and regulatory frameworks “reach” AI deployed by FIs. Considering the potential issue of unfairness in particular, we examine the landscape of Canadian human rights legislation and how anti-discrimination law mechanisms can be used to uphold the principle of fairness in AI- driven decisions. The paper concludes by discussing the importance of robust AI governance and outlining best practices for developing robust governance frameworks at the institutional level. \u0000 \u0000La question de l’equite est actuellement a l’honneur dans les discussions concernant l’intelligence artificielle (l'IA). Puisque l’IA est de plus en plus adoptee dans le secteur bancaire, il est important que les facilitateurs de l’IA s’assurent que les decisions deployees par celle ci respectent les droits fondamentaux, notamment les droits a l’egalite, tant sur le plan juridique que sur le plan ethique. Il est a prevoir que la tâche donnera naissance a des applications novatrices de la legislation antidiscrimination actuelle. Dans le present article, nous jetons un regard critique sur des questions d’equite dans le contexte bancaire en appliquant a l’IA des cadres d’analyse relevant des droits a l’egalite, les modeles de credit servant ici d’exemple. L’article s’adresse aux banquiers, aux avocats et aux juges qui cherchent a comprendre et a appliquer le droit et a elaborer des pratiques en matiere de gouvernance applicables aux modeles d’IA utilises par les institutions financieres canadiennes (les institutions financieres). Nous faisons valoir que, dans une large mesure, les cadres legislatifs et reglementaires actuels « atteignent » l’IA deployee par les institutions financieres. Sur la question eventuelle de l’iniquite tout particulierement, nous nous penchons sur le portrait legislatif au Canada en matiere de droits de la personne et sur la question de savoir comment les mecanismes prevus par les lois antidiscrimination peuvent servir a defendre le principe de l’equite dans les decisions animees par l’IA. En conclusion, l’article traite de l’importance d’une gouvernance robuste vis a vis de l’IA et esquisse des pratiques exemplaires permettant d’elaborer des cadres de gouvernance robuste","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"2014 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130268847","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-10-01DOI: 10.32721/ctj.2020.68.3.pf.jackson
A. Jackson, Toby Sanger
The public and policy makers are showing a renewed interest in wealth taxes as a possible response to the problem of wealth inequality. This article describes the recent trend of rising wealth inequality, and the factors contributing to it, in developed countries, including Canada. The authors argue that an annual wealth tax could and should counter the trend, and that such a tax is both justifiable on economic grounds and technically feasible. They assert that the taxation of capital income does not adequately address the largely tax-free accumulation of large fortunes, and that an annual wealth tax is preferable to property taxes, which exclude the taxation of financial assets and are levied on gross rather than net wealth. The article responds in detail to major criticisms of an annual tax on wealth, arguing that such a tax is needed to achieve a more equal distribution of wealth while raising additional revenues.
{"title":"Policy Forum: The Case for an Annual Net Wealth Tax","authors":"A. Jackson, Toby Sanger","doi":"10.32721/ctj.2020.68.3.pf.jackson","DOIUrl":"https://doi.org/10.32721/ctj.2020.68.3.pf.jackson","url":null,"abstract":"The public and policy makers are showing a renewed interest in wealth taxes as a possible response to the problem of wealth inequality. This article describes the recent trend of rising wealth inequality, and the factors contributing to it, in developed countries, including Canada. The authors argue that an annual wealth tax could and should counter the trend, and that such a tax is both justifiable on economic grounds and technically feasible. They assert that the taxation of capital income does not adequately address the largely tax-free accumulation of large fortunes, and that an annual wealth tax is preferable to property taxes, which exclude the taxation of financial assets and are levied on gross rather than net wealth. The article responds in detail to major criticisms of an annual tax on wealth, arguing that such a tax is needed to achieve a more equal distribution of wealth while raising additional revenues.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129376291","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Data-sharing frameworks in financial services are becoming increasingly prevalent with the potential to shape drastically the future of banking and finance. As data assets are of strategic importance to financial institutions and central to their ‘datafication’ and digital transformation processes, sharing and accessing new data can alter the dynamics of competition and lead to the emergence of new players as well as nascent markets. Innovative technologies such as application programming interfaces (APIs) can help simplify data communication between systems and thus standardize the exchange of information between organizations allowing them to experiment with new, more open, business models. APIs also give the ability to effectively control openness and orchestrate ecosystems of third-parties that can add value to organizations’ supply chain and end users. Having said that, the deployment of open APIs in financial services raises numerous questions regarding the appropriate regulatory (or not) framework and infrastructure for opening up data in the banking sector.
The current paper examines the potential for an open banking framework in the Canadian market and makes an effort to identify the regulatory, economic, technological, sociological, and political debates in the industry concerning data openness. During the course of the study there was consensus from participants that discussing the “merits of open banking” or opportunities that it will bring is an outdated topic and instead the discussions should focus on the real issues and ‘pain-points’ around open banking implementation in Canada. Following a good number of interviews with FinTechs, challenger and incumbent banks, regulators, legal experts, consultants, and financial services professionals (in various part of the business as well as IT) in the Canadian market, the paper outlines a number of themes and frictions that the industry as well as policy-makers in Canada should consider when implementing an open banking framework. We believe that the findings can be generalized and be useful for practitioners and regulators around the world when exploring similar frameworks.
The paper starts with an introduction to data-sharing and open finance providing some workable definitions and comparing the relevant technologies in place. In this section we also clear various misunderstandings around ‘open banking’. The following section provides a brief description of the most popular open banking paradigms around the world: UK, EU, and Australia before we move to the Canadian context. The main findings section is organized in four parts discussing a) the objectives of open banking in Canada and whether a potential scheme should be policy-mandated or market-driven, b) the relevant regulatory issues such as liability and related data-privacy laws, c) the key debates and tensions when designing the data-sharing infrastructure (such as data openness, digital identity, security, API and da
{"title":"Data-Sharing Frameworks In Financial Services: Discussing Open Banking Regulation for Canada","authors":"Markos Zachariadis","doi":"10.2139/ssrn.2983066","DOIUrl":"https://doi.org/10.2139/ssrn.2983066","url":null,"abstract":"Data-sharing frameworks in financial services are becoming increasingly prevalent with the potential to shape drastically the future of banking and finance. As data assets are of strategic importance to financial institutions and central to their ‘datafication’ and digital transformation processes, sharing and accessing new data can alter the dynamics of competition and lead to the emergence of new players as well as nascent markets. Innovative technologies such as application programming interfaces (APIs) can help simplify data communication between systems and thus standardize the exchange of information between organizations allowing them to experiment with new, more open, business models. APIs also give the ability to effectively control openness and orchestrate ecosystems of third-parties that can add value to organizations’ supply chain and end users. Having said that, the deployment of open APIs in financial services raises numerous questions regarding the appropriate regulatory (or not) framework and infrastructure for opening up data in the banking sector.<br><br>The current paper examines the potential for an open banking framework in the Canadian market and makes an effort to identify the regulatory, economic, technological, sociological, and political debates in the industry concerning data openness. During the course of the study there was consensus from participants that discussing the “merits of open banking” or opportunities that it will bring is an outdated topic and instead the discussions should focus on the real issues and ‘pain-points’ around open banking implementation in Canada. Following a good number of interviews with FinTechs, challenger and incumbent banks, regulators, legal experts, consultants, and financial services professionals (in various part of the business as well as IT) in the Canadian market, the paper outlines a number of themes and frictions that the industry as well as policy-makers in Canada should consider when implementing an open banking framework. We believe that the findings can be generalized and be useful for practitioners and regulators around the world when exploring similar frameworks.<br><br>The paper starts with an introduction to data-sharing and open finance providing some workable definitions and comparing the relevant technologies in place. In this section we also clear various misunderstandings around ‘open banking’. The following section provides a brief description of the most popular open banking paradigms around the world: UK, EU, and Australia before we move to the Canadian context. The main findings section is organized in four parts discussing a) the objectives of open banking in Canada and whether a potential scheme should be policy-mandated or market-driven, b) the relevant regulatory issues such as liability and related data-privacy laws, c) the key debates and tensions when designing the data-sharing infrastructure (such as data openness, digital identity, security, API and da","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116903016","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-07-01DOI: 10.32721/ctj.2020.68.2.bevacqua
John Bevacqua
There have been numerous recent Canadian cases in which taxpayers have alleged negligence by Canada Revenue Agency officials. This body of rapidly evolving Canadian case law constitutes, at present, the most extensive jurisprudence in the common-law world considering the tortious liability of tax officials. It also exposes fundamental unresolved controversies that inhibit legal clarity and certainty on the limits of the right of taxpayers to sue for the negligence of tax officials. Through comparison with cases in Australia and New Zealand, this article confirms that these unresolved controversies are not unique to Canada. The author proposes a range of options for addressing these issues. Intended as a primer for policy makers' attention and debate, these proposals are drawn from judicial and legislative approaches adopted in Canada, Australia, and New Zealand, and in other broadly comparable common-law jurisdictions.
{"title":"Unresolved Controversies in Suing for Negligence of Tax Officials: Canadian and Australasian Insights and a Primer for Policy Makers' Consideration","authors":"John Bevacqua","doi":"10.32721/ctj.2020.68.2.bevacqua","DOIUrl":"https://doi.org/10.32721/ctj.2020.68.2.bevacqua","url":null,"abstract":"There have been numerous recent Canadian cases in which taxpayers have alleged negligence by Canada Revenue Agency officials. This body of rapidly evolving Canadian case law constitutes, at present, the most extensive jurisprudence in the common-law world considering the tortious liability of tax officials. It also exposes fundamental unresolved controversies that inhibit legal clarity and certainty on the limits of the right of taxpayers to sue for the negligence of tax officials. Through comparison with cases in Australia and New Zealand, this article confirms that these unresolved controversies are not unique to Canada. The author proposes a range of options for addressing these issues. Intended as a primer for policy makers' attention and debate, these proposals are drawn from judicial and legislative approaches adopted in Canada, Australia, and New Zealand, and in other broadly comparable common-law jurisdictions.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124898939","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There is no direct duty owed by directors who are the human agents of corporations to creditors as this duty is owed to the corporation alone. The courts have recognized that a duty of care may be owed to creditors. However, the scope of this duty of care is limited due to the broad interpretation the Canadian courts have accorded the business judgment rule. This makes it difficult or almost impossible for creditors to challenge the acts of directors so long as the directors claim to have acted reasonably and in the best interest of the corporation. This paper argues that although the courts have attempted to establish a broad and flexible principle to accommodate creditors, the principles are either too vague or insufficient to adequately protect creditors of financially distressed corporations.
{"title":"Does Canadian Law Adequately Protect Creditors of Financially Distressed Corporations?","authors":"Chioma Adiele","doi":"10.2139/ssrn.3734766","DOIUrl":"https://doi.org/10.2139/ssrn.3734766","url":null,"abstract":"There is no direct duty owed by directors who are the human agents of corporations to creditors as this duty is owed to the corporation alone. The courts have recognized that a duty of care may be owed to creditors. However, the scope of this duty of care is limited due to the broad interpretation the Canadian courts have accorded the business judgment rule. This makes it difficult or almost impossible for creditors to challenge the acts of directors so long as the directors claim to have acted reasonably and in the best interest of the corporation. This paper argues that although the courts have attempted to establish a broad and flexible principle to accommodate creditors, the principles are either too vague or insufficient to adequately protect creditors of financially distressed corporations.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"115 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121353494","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-04-01DOI: 10.32721/ctj.2020.68.1.sym.dirkis
Michael Dirkis
Canada and Australia have superficially similar tests for determining the tax residence of individuals. Both have a common-law residence (or resides) test, "continuing attachment" rules (a statutory test in Australia), a 183-day type of test, and provisions focused on government officials. A key difference between the countries in this regard, despite broadly similar residence tests, is that litigation in Canada is rare whereas Australia, over the last decade, has seen at least 43 administrative tribunal, Federal Court, and High Court decisions with respect to tax residence. In response to the high levels of litigation resulting from concentrated Australian Taxation Office compliance programs, the Board of Taxation commenced a self-initiated review of the income tax residence rules for individuals in May 2016. The report subsequently submitted to government noted that the current rules were no longer appropriate and needed to be updated and simplified. Although the Australian government has not endorsed the board's recommendations, the board was directed to undertake further consultation in order to ensure that the proposed residence rules are appropriately designed and targeted, with a particular focus on integrity (that is, anti-avoidance) issues. A final report, sent to the government in April/May 2019, proposed a number of bright-line tests. These proposed tests are based in part on the approach adopted in the NZ and 2013 UK residence rules. In this paper, the author considers the similarities and shortcomings of the Canadian and Australian rules on individual tax residence according to the criteria of equity, simplicity, and efficiency (integrity), and then reviews the Board of Taxation's recommendations with an eye to whether the proposed Australian changes could provide guidance for any future Canadian reform, should the political circumstances so dictate in the future.
加拿大和澳大利亚有表面上类似的测试来确定个人的税务居住地。两者都有普通法的居住(或居住)测试，“持续依附”规则(澳大利亚的法定测试)，183天的测试类型，以及针对政府官员的条款。两国在这方面的一个关键区别是，尽管居住标准大致相似，但加拿大很少提起诉讼，而澳大利亚在过去十年中，至少有43起行政法庭、联邦法院和高等法院就税务居住问题作出裁决。针对澳大利亚税务局(Australian Taxation Office)集中合规项目引发的大量诉讼，澳大利亚税务委员会(Board of Taxation)于2016年5月开始对个人所得税居留规定进行自我审查。随后提交给政府的报告指出，目前的规则已不再适当，需要更新和简化。尽管澳大利亚政府尚未批准该委员会的建议，但该委员会已被指示进行进一步磋商，以确保拟议的居留规则设计得当，目标明确，特别注重诚信(即反避税)问题。2019年4月至5月提交给政府的最终报告提出了一些明确的测试。这些拟议的测试部分基于新西兰和2013年英国居留规定采用的方法。在本文中，作者根据公平，简单和效率(完整性)的标准考虑了加拿大和澳大利亚个人税务居住规则的相似之处和缺点，然后审查了税务委员会的建议，着眼于澳大利亚提出的变化是否可以为加拿大未来的任何改革提供指导，如果政治环境在未来如此决定。
{"title":"Moving to a More 'Certain' Test for Tax Residence in Australia: Lessons for Canada?","authors":"Michael Dirkis","doi":"10.32721/ctj.2020.68.1.sym.dirkis","DOIUrl":"https://doi.org/10.32721/ctj.2020.68.1.sym.dirkis","url":null,"abstract":"Canada and Australia have superficially similar tests for determining the tax residence of individuals. Both have a common-law residence (or resides) test, \"continuing attachment\" rules (a statutory test in Australia), a 183-day type of test, and provisions focused on government officials. A key difference between the countries in this regard, despite broadly similar residence tests, is that litigation in Canada is rare whereas Australia, over the last decade, has seen at least 43 administrative tribunal, Federal Court, and High Court decisions with respect to tax residence. \u0000 \u0000In response to the high levels of litigation resulting from concentrated Australian Taxation Office compliance programs, the Board of Taxation commenced a self-initiated review of the income tax residence rules for individuals in May 2016. The report subsequently submitted to government noted that the current rules were no longer appropriate and needed to be updated and simplified. Although the Australian government has not endorsed the board's recommendations, the board was directed to undertake further consultation in order to ensure that the proposed residence rules are appropriately designed and targeted, with a particular focus on integrity (that is, anti-avoidance) issues. A final report, sent to the government in April/May 2019, proposed a number of bright-line tests. \u0000 \u0000These proposed tests are based in part on the approach adopted in the NZ and 2013 UK residence rules. In this paper, the author considers the similarities and shortcomings of the Canadian and Australian rules on individual tax residence according to the criteria of equity, simplicity, and efficiency (integrity), and then reviews the Board of Taxation's recommendations with an eye to whether the proposed Australian changes could provide guidance for any future Canadian reform, should the political circumstances so dictate in the future.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"94 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123549545","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pseudolaw is a collection of legal-sounding but false rules, that purport to be law, employed by groups including the Detaxer and Freemen-on-the-Land movements. While pseudolaw is universally rejected by Canadian courts, no Supreme Court of Canada decision addresses these concepts. This study reviews 51 unsuccessful Supreme Court leave applications that potentially involve pseudolaw to determine what pseudolaw issues were raised, whether those issues were comprehensible, and therefore if by its silence the Court has implicitly rejected these concepts. Some pseudolaw-related leave applications were not comprehensible to a legally-trained reader, however the remainder clearly imply that the Supreme Court of Canada has been exposed to the cornerstone concepts of modern pseudolaw, including “Strawman” Theory, and has rejected these ideas as not having national significance.
{"title":"Enjoy the Silence: Pseudolaw at the Supreme Court of Canada","authors":"D. Netolitzky, Richard Warman","doi":"10.29173/alr2593","DOIUrl":"https://doi.org/10.29173/alr2593","url":null,"abstract":"Pseudolaw is a collection of legal-sounding but false rules, that purport to be law, employed by groups including the Detaxer and Freemen-on-the-Land movements. While pseudolaw is universally rejected by Canadian courts, no Supreme Court of Canada decision addresses these concepts. This study reviews 51 unsuccessful Supreme Court leave applications that potentially involve pseudolaw to determine what pseudolaw issues were raised, whether those issues were comprehensible, and therefore if by its silence the Court has implicitly rejected these concepts. Some pseudolaw-related leave applications were not comprehensible to a legally-trained reader, however the remainder clearly imply that the Supreme Court of Canada has been exposed to the cornerstone concepts of modern pseudolaw, including “Strawman” Theory, and has rejected these ideas as not having national significance.","PeriodicalId":243835,"journal":{"name":"Canadian Law eJournal","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-03-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125153280","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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