This article argues that commercial law is not merely a collection of rules, but a doctrinally coherent and conceptually sophisticated body of law structured through conceptions of property. The analysis focuses specifically on the aspects of commercial law that govern recovery of debt. The argument advances two related themes; that commercial law is built around conceptions of property and reciprocally defines the conceptions of property around which it is built. The article first addresses the role of property as the structural framework of commercial law. Property creates the basis for assertion of rights and provides the conceptual interface between the legal regimes of secured financing, judgment enforcement, and bankruptcy. Further, property is the basis on which commercial law rights and interests are reconciled with rights and interests that fall outside its boundaries. The article then explores the means by which commercial law resolves practical problems through the creative definition of property. The article concludes with thoughts on the importance of understanding the central role of property in the structure and function of commercial law.
{"title":"The Conceptual Structure of Commercial Law","authors":"Tamara M. Buckwold","doi":"10.29173/alr2599","DOIUrl":"https://doi.org/10.29173/alr2599","url":null,"abstract":"This article argues that commercial law is not merely a collection of rules, but a doctrinally coherent and conceptually sophisticated body of law structured through conceptions of property. The analysis focuses specifically on the aspects of commercial law that govern recovery of debt. The argument advances two related themes; that commercial law is built around conceptions of property and reciprocally defines the conceptions of property around which it is built. The article first addresses the role of property as the structural framework of commercial law. Property creates the basis for assertion of rights and provides the conceptual interface between the legal regimes of secured financing, judgment enforcement, and bankruptcy. Further, property is the basis on which commercial law rights and interests are reconciled with rights and interests that fall outside its boundaries. The article then explores the means by which commercial law resolves practical problems through the creative definition of property. The article concludes with thoughts on the importance of understanding the central role of property in the structure and function of commercial law.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2020-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43882153","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}
From 2010 to 2013, the "Drop Dead Rule" in the Alberta Rules of Court underwent major amendments that resulted in new jurisprudence for resolution of all such applications. In this article, we conduct quantitative and qualitative analyses of the consequences of these amendments and the causes of these consequences. We find that the increase in applications, the longer time to resolution, and the inequitable impact on impecunious plaintiffs result in outcomes contrary to the objectives stated in the Foundational Rules. We provide evidence of the extent of these failures and recommendations on how to amend the Drop Dead Rule to result in fairer, more just, timelier, and more cost-effective resolutions.
{"title":"Drop Dead or a Slow Death? An Analysis of Rule 4.33 of the Alberta Rules of Court","authors":"Melissa Morrow, R. M. White","doi":"10.29173/alr2601","DOIUrl":"https://doi.org/10.29173/alr2601","url":null,"abstract":"From 2010 to 2013, the \"Drop Dead Rule\" in the Alberta Rules of Court underwent major amendments that resulted in new jurisprudence for resolution of all such applications. In this article, we conduct quantitative and qualitative analyses of the consequences of these amendments and the causes of these consequences. We find that the increase in applications, the longer time to resolution, and the inequitable impact on impecunious plaintiffs result in outcomes contrary to the objectives stated in the Foundational Rules. We provide evidence of the extent of these failures and recommendations on how to amend the Drop Dead Rule to result in fairer, more just, timelier, and more cost-effective resolutions.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":"157 1","pages":"957"},"PeriodicalIF":0.5,"publicationDate":"2020-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69749700","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}
{"title":"Sexual Regulation and the Law: A Canadian Perspective, Richard Jochelson and James Gacek, eds. (Bradford, Ont: Demeter Press, 2019)","authors":"Colton Fehr","doi":"10.29173/alr2604","DOIUrl":"https://doi.org/10.29173/alr2604","url":null,"abstract":" \u0000 ","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":"1 1","pages":"1045"},"PeriodicalIF":0.5,"publicationDate":"2020-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48073245","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}
{"title":"Structural Change or Collective Amnesia? A Review of Breakdown: The Inside Story of the Rise and Fall of Heenan Blaikie, Norman Bacal (Toronto: Barlow Books, 2017)","authors":"P. Lord","doi":"10.29173/alr2605","DOIUrl":"https://doi.org/10.29173/alr2605","url":null,"abstract":" \u0000 ","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":"1 1","pages":"1053"},"PeriodicalIF":0.5,"publicationDate":"2020-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47123495","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}
Due to inadequate management of the liability associated with abandoned wells, wellbores will continue to pose a threat to resource development in Alberta. To mitigate this issue, a new development should be burdened with the costs of mitigating the risks of that development. Economic decisions made at the time the risk is to be imposed, in the present, will be more reasoned. Companies that follow the regulations should be able to reasonably expect that compliance with the rules will alleviate liabilities in the future. The regulated industry should be able to trust the expertise of a regulator to ensure the protection of the environment, public safety, and the subsurface resource.
{"title":"Abandoned Wells Create Liability for Future Subsurface Resource Exploitation","authors":"T. Watson","doi":"10.29173/alr2602","DOIUrl":"https://doi.org/10.29173/alr2602","url":null,"abstract":"Due to inadequate management of the liability associated with abandoned wells, wellbores will continue to pose a threat to resource development in Alberta. To mitigate this issue, a new development should be burdened with the costs of mitigating the risks of that development. Economic decisions made at the time the risk is to be imposed, in the present, will be more reasoned. Companies that follow the regulations should be able to reasonably expect that compliance with the rules will alleviate liabilities in the future. The regulated industry should be able to trust the expertise of a regulator to ensure the protection of the environment, public safety, and the subsurface resource.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2020-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48385979","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}
Some view the sealed instrument as a relic of the common law that is incompatible with modern contract law theory. However, the fact remains that the seal is a valid method to create a binding agreement in Canadian law. This article proposes a theoretical justification of the seal that better places it within contract theory. The author argues that instead of understanding seals as analogous to a consideration-based promise, we should understand seals as analogous to an executed gift. Through this analogy, the seal can be understood as an agreement that creates an immediate and unilateral transfer of rights.
{"title":"Sealed and Delivered: A Theory of Unilateral Transfer at Common Law","authors":"Stéphane Sérafin","doi":"10.29173/ALR2600","DOIUrl":"https://doi.org/10.29173/ALR2600","url":null,"abstract":"Some view the sealed instrument as a relic of the common law that is incompatible with modern contract law theory. However, the fact remains that the seal is a valid method to create a binding agreement in Canadian law. This article proposes a theoretical justification of the seal that better places it within contract theory. The author argues that instead of understanding seals as analogous to a consideration-based promise, we should understand seals as analogous to an executed gift. Through this analogy, the seal can be understood as an agreement that creates an immediate and unilateral transfer of rights.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":"1 1","pages":"927"},"PeriodicalIF":0.5,"publicationDate":"2020-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45465390","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 primary approach in Alberta has been that the distribution of utility services delivered by investor-owned utilities are subject to full economic regulation by the Alberta Utilities Commission, whereas if public utility services are delivered by municipalities it has been recognized that the services should be principally regulated by the municipal council rather than the Commission. Affording the municipal council, or its equivalent, regulatory jurisdiction over municipally owned utilities involves a more politically responsive form of regulation. The role of the Commission in this context is limited. The Commission has exercised narrow jurisdiction to ensure that rates established for municipally owned utilities are internally and externally consistent, and to ensure that such rates are not unreasonably discriminatory.
{"title":"The Supervisory Jurisdiction of the Alberta Utilities Commission Over Municipally Owned Utilities","authors":"N. Bankes, D. Poscente","doi":"10.29173/alr2598","DOIUrl":"https://doi.org/10.29173/alr2598","url":null,"abstract":"The primary approach in Alberta has been that the distribution of utility services delivered by investor-owned utilities are subject to full economic regulation by the Alberta Utilities Commission, whereas if public utility services are delivered by municipalities it has been recognized that the services should be principally regulated by the municipal council rather than the Commission. Affording the municipal council, or its equivalent, regulatory jurisdiction over municipally owned utilities involves a more politically responsive form of regulation. The role of the Commission in this context is limited. The Commission has exercised narrow jurisdiction to ensure that rates established for municipally owned utilities are internally and externally consistent, and to ensure that such rates are not unreasonably discriminatory.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":"1 1","pages":"853-853"},"PeriodicalIF":0.5,"publicationDate":"2020-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42109584","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}
Prohibiting discrimination is a noble political statement. What does it mean as economic policy? Applying a neoclassical framework, the article examines how Canada’s human rights laws affect society and marginalized groups from a welfare perspective. The article offers several practical reforms to improve the efficiency of current laws such as uncapping damage awards, removing criminal sanctions, and allowing non-profits to participate in remedies so as to compensate marginalized groups for systemic effects of discrimination. It also discusses bolder market-based options, including the taxing and licencing of discrimination for instances where our great project towards equality might be better served by redistribution than prohibition.
{"title":"The Economics of Canadian Anti-Discrimination Laws","authors":"Reagan Seidler","doi":"10.29173/alr2597","DOIUrl":"https://doi.org/10.29173/alr2597","url":null,"abstract":"Prohibiting discrimination is a noble political statement. What does it mean as economic policy? Applying a neoclassical framework, the article examines how Canada’s human rights laws affect society and marginalized groups from a welfare perspective. The article offers several practical reforms to improve the efficiency of current laws such as uncapping damage awards, removing criminal sanctions, and allowing non-profits to participate in remedies so as to compensate marginalized groups for systemic effects of discrimination. It also discusses bolder market-based options, including the taxing and licencing of discrimination for instances where our great project towards equality might be better served by redistribution than prohibition.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":"1 1","pages":"839"},"PeriodicalIF":0.5,"publicationDate":"2020-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44804813","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}
In this article, the author seeks to discern the limits of the broadly scoped oppression action. The author first discusses the oppression and derivative actions and their purposes, and then argues that the oppression provision does not embrace derivative harm. Using the recent Supreme Court of Canada decision in Brunette, the author reinforces the requirement of direct injury distinct from that suffered by the corporation, when bringing a personal action. The author then examines case law in pursuit of clarity about what constitutes direct harm and whether it is difficult to demonstrate. The author concludes by recommending that the Supreme Court clarify the distinction between oppression and derivative actions by integrating the direct harm requirement into the test for oppression.
{"title":"Oppression or Derivative? Greater Clarity Through the Requirement for Direct Harm","authors":"Jordon Magico","doi":"10.29173/alr2596","DOIUrl":"https://doi.org/10.29173/alr2596","url":null,"abstract":"In this article, the author seeks to discern the limits of the broadly scoped oppression action. The author first discusses the oppression and derivative actions and their purposes, and then argues that the oppression provision does not embrace derivative harm. Using the recent Supreme Court of Canada decision in Brunette, the author reinforces the requirement of direct injury distinct from that suffered by the corporation, when bringing a personal action. The author then examines case law in pursuit of clarity about what constitutes direct harm and whether it is difficult to demonstrate. The author concludes by recommending that the Supreme Court clarify the distinction between oppression and derivative actions by integrating the direct harm requirement into the test for oppression.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":"1 1","pages":"817"},"PeriodicalIF":0.5,"publicationDate":"2020-03-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46611403","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 recent reforms to the Supreme Court of Canada appointment process have created potential barriers to Indigenous candidates. This article reviews the appointment process and its two objectives of functional bilingualism and increased diversity. Given the lack of progress on diversity, particularly with respect to Indigenous representation, a rebalancing of appointment criteria is required. Reconciliation, in both the legal and evolving public policy sense, requires Indigenous participation in legal institutions. Furthermore, arguments in favour of functional bilingualism, such as specific legal expertise and incorporation of distinct cultural viewpoints, transfer seamlessly to Indigenous and other minority representation at the Supreme Court. The functional bilingualism requirement should remain, but accommodation for Indigenous candidates is integral to reconciliation.
{"title":"The Supreme Court, Functional Bilingualism, and the Indigenous Candidate: Reconciling the Bench","authors":"Alexandrea Nasager","doi":"10.29173/alr2595","DOIUrl":"https://doi.org/10.29173/alr2595","url":null,"abstract":"The recent reforms to the Supreme Court of Canada appointment process have created potential barriers to Indigenous candidates. This article reviews the appointment process and its two objectives of functional bilingualism and increased diversity. Given the lack of progress on diversity, particularly with respect to Indigenous representation, a rebalancing of appointment criteria is required. Reconciliation, in both the legal and evolving public policy sense, requires Indigenous participation in legal institutions. Furthermore, arguments in favour of functional bilingualism, such as specific legal expertise and incorporation of distinct cultural viewpoints, transfer seamlessly to Indigenous and other minority representation at the Supreme Court. The functional bilingualism requirement should remain, but accommodation for Indigenous candidates is integral to reconciliation.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":"1 1","pages":"797"},"PeriodicalIF":0.5,"publicationDate":"2020-03-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49355111","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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