Canadian Law Research Articles

INVESTMENT BANKING FEES ON SEASONED EQUITY OFFERINGS: EVIDENCE FROM CANADIAN ISSUERS AFTER THE PASSAGE OF CANADIAN SOX

ABSTRACT This paper explores the effects of Canadian SOX (CSOX) on investment banking fees for seasoned equity offerings of Canadian issuers. Canadian SOX is a Canadian law equivalent to the U.S. Sarbanes-Oxley (USSOX) of 2002 aimed in improved financial disclosure of public corporations. It finds the investment banking fees to all offer announcements are not different between the period 1999-2005 (pre-CSOX) and the period 2006-2011 (post-CSOX). When comparing offers by Canadian issuers cross-listed in major U.S. exchanges with matched non-cross-listed issuers, the fees are higher for the former during the post-CSOX period only, after controlling for offer, firm and trade variables. Additionally, when comparing offers between marketed underwritten with bought deals, the fees are higher for marketed underwritten offers in the pre- and post-CSOX periods, respectively, – mostly for non-cross-listed issuers. This may justify why firms prefer issuing bought deals instead of marketed underwritten offers in the last years. Keywords Investment Banking Fees, Seasoned Equity Offerings, Canadian SOX, Sarbanes-Oxley Act, Cross-Listed, Bought Deals, Marketed Underwritten Offers.

‘More Hateful because of its Hypocrisy’: Indians, Britain and Canadian Law in the Komagata Maru Incident of 1914

ABSTRACTRecent remembrance and memorialisation of the Komagata Maru incident of 1914 has neglected the global and imperial implications of the incident, as well as the role that direct actions by the Indian passengers and Indians in Vancouver took against Canada’s discriminatory law. While the legal loss the passengers suffered could be regarded as simply tragic, the implications for the British Empire behind the Komagata Maru incident are more complex. More than just a legal battle between would-be Indian migrants and the Vancouver immigration authorities, the incident is a highly visible clash of two different understandings of the British imperial legal system. In contrast to any view that imperial harmony and the rights of all its subjects should supersede local concerns within the empire, Canadian immigration and legal officials instead viewed their rights as a self-governing dominion to make and pass their own laws (particularly around areas of racial desirability) as more important than issues of imperial membership, loyalty or harmony. The British government’s decision, in turn, not to contradict Canada’s eventual ruling against the Komagata Maru passengers and the decision to deport them, exposed the legal hierarchies of supposed imperial belonging, citizenship and ‘British liberty’ in the empire at a critical moment in the early twentieth century. What the incident highlighted, then, was an increasing legal distinction between settler colonies and colonies of exploitation within the empire.

Research on Human Embryos and Reproductive Materials: Revisiting Canadian Law and Policy.

Research involving human embryos and reproductive materials, including certain forms of stem cell and genetic research, is a fast-moving area of science with demonstrated clinical relevance. Canada's current governance framework for this field of research urgently requires review and reconsideration in view of emerging applications. Based on a workshop involving ethics, legal, policy, scientific and clinical experts, we present a series of recommendations with the goal of informing and supporting health policy and decision-making regarding the governance of the field. With a pragmatic and principled governance approach, Canada can continue its global leadership in this field, as well as advance the long-term health and well-being of Canadians.

OUT OF THE CLOSET AND UP THE LADDER? DIVERSITY IN ONTARIO’S BIG LAW FIRMS

While Canadian law generally provides protection against sexual orientation discrimination, and social acceptance is growing, there are some indications that LGBTQ lawyers face barriers relating to their sexual identity. Although more LGBTQ lawyers are now ‘out at work’, quantitative data is incomplete, and little is known about the actual experience of LGBTQ lawyers, who enter big firms in Ontario with the hope to advance through the ranks. This article begins to address this gap by providing qualitative analysis of the personal experience of LGBTQ lawyers entering the profession and the extent to which in-firm diversity initiatives shape their experience. Three main themes emerged from the interviews. First, racialized gay lawyers more consciously described their experiences at big law firms as negative and related it to their minority status. Second, the interviews offer insight into the ways in which gays and lesbians are forced to negotiate and perform their identity in a heteronormative workplace. Finally, the insights gleaned from the interviews suggest that the diversity programs devised by law firms may have helped diversify the lower ranks of law firms, but they seem to have failed to address the barriers that equity-seeking groups continue to face in retention and advancement through the ranks. The heteronormative organizational culture, as well as the promotion and compensation structures in firms continue to drive the composition of the leadership ranks and it arguably perpetuates homogeneity.

Treaty-Making Capacity of Components of Federal States from the Perspective of the Works of the UN International Law Commission

The submitted paper concerns the treaty-making capacity of components of federal (non-unitary) states. As the division of powers in respect to the conclusion of international treaties between a federal state and its components is based on the provisions of internal federal law, the authors decided to start the consideration of the topic with the presentation of selected appropriate internal law regulations of federal states. Although the study concentrates on an analysis of Swiss and German constitutional rules on the subject, the provisions of i.a. Belgian, US and Canadian law are also commented upon. Therefore it apparently seems to be an important legal question.The treaty-making capacity of components of federal (non-unitary) states was comprehensively discussed during the International Law Commission preparatory works on the regulation on the law of treaties. The provisions dedicated to that issue formed part of the reports prepared by each of the ILC Special Rapporteurs on the subject. The paper presents the draft propositions submitted by them, the views of ILC members, and responses received from states.The final draft of ILC articles on the law of treaties contained a paragraph concerning the issue at stake (than art. 5 § 2 of the draft) stipulating that member states of a federal union may possess such capacity only if such capacity is admitted by the federal constitution and within the scope defined therein. Nevertheless, this issue was omitted in the 1969 Vienna Convention on Law of Treaties (VCLT). Art. 6 of the VCLT on the capacity of States to conclude treaties does not mention the rights of components of federal states. It consists of one paragraph simply stating that every State possesses the capacity to conclude treaties. And the term ‘state’ for the purposes of that regulation possesses the same meaning as i.a. in the Charter of the United Nations, that is a State for the purposes of international law, or a state in the international meaning of that term.This does not mean however that territorial units forming a part of a federal state cannot conclude international agreements. But, this issue depends both on the provisions of internal law of the given state and on the practice of the states recognising the potential rights of the components of the federal (non-unitary) states in respect to conclusion of the treaties.

Corporate Law Federalism in Historical Context: Comparing Canada and the United States

Although American and Canadian corporate law share many similarities, they are also marked by important institutional differences. Among the most notable are the differing roles of federal versus state/provincial policymaking in the two countries: while American corporate law has been deeply influenced by jurisdictional competition among the states, Canadian law has instead been shaped by federal legislative activity, as seen today in the standardizing influence of the Canada Business Corporations Act. These different institutional histories have led to distinct evolutionary paths, with important substantive consequences for contemporary corporate law. Despite considerable academic attention to the subject of corporate law federalism, these historical differences between Canada and the United States are not well understood. This article explains why jurisdictional competition arose in the United States but not Canada by examining the “Great Merger Movement” of the late nineteenth and early twentieth centuries. Specifically, this article makes three related arguments: (1) in the United States, the rise of jurisdictional competition was driven not by corporate governance issues, as is often assumed, but rather by the desire to avoid state and federal antitrust restrictions; (2) for a variety of reasons, cartelization and price fixing were more viable in Canada than the United States, delaying the onset of consolidative mergers; and (3) when the Canadian merger movement finally arrived, Canadian federal company law readily facilitated industrial consolidation, reducing the incentives for individual provinces to compete to attract company charters. The different experiences of Canada and the United States reveal an intriguing historical irony—while Canadian corporate law is sometimes criticized as lacking in competitive responsiveness, the roots of this complacency are closely tied to the turn-of-the-century merger movement, in which Canadian law was less restrictive than its traditional American counterpart.

Case Comment: In the Matter of M (Children)

This comment discusses the recent English case of M (Children), Re, which involved a dispute over access between a transgender parent and her children, who were living in an ultra-orthodox Jewish community. The author argues that the trial court decision ordering no direct access was appropriate in the circumstances, despite the order's discriminatory consequences. The author suggests that Canadian law would also support the trial court's decision.

Unions in Court: Organized Labour and the Charter of Rights and Freedoms by Larry Savage and Charles W. Smith

Reviewed by: Unions in Court: Organized Labour and the Charter of Rights and Freedoms by Larry Savage and Charles W. Smith Eric Tucker Larry Savage and Charles W. Smith, Unions in Court: Organized Labour and the Charter of Rights and Freedoms (Vancouver: University of British Columbia Press 2017) The constitutionalization of labour rights in Canada is one of the most remarkable and, perhaps, unexpected developments in the 36 year history of the Charter of Rights and Freedoms. Few observers in 1982 would have predicted that the Charter rights of freedom of expression and association would provide constitutional protection for picket-line activity, collective bargaining, and strikes. Indeed, for some critical observers, the advent of the Charter was viewed as an ominous development, advancing the neo-liberal project of degrading and bypassing democratic institutions to insure the maintenance of conditions favourable to capital accumulation and the power of economic elites. Who better, after all, than the judiciary, the guardians of individual market rights and freedoms, long hostile to collective action by workers, to entrust with this task? However, in recent years, the Supreme Court of Canada (scc) has provided workers with some cover against the assault of neo-liberal governments pursuing austerity measures that restrict collective bargaining and the freedom to strike. How did this happen and what are its implications for the future of the Canadian labour movement? These are some of the questions Savage and Smith set out to answer in this insightful account of the labour movement's engagement with the Charter and the scc's evolving jurisprudence. Savage and Smith approach the subject of constitutional labour rights through the lens of critical institutionalism, which places law and judicial decisions in a broader social and political-economic context, which recognizes that institutions shape and are shaped by that context. More specifically, they are concerned to understand labour's strategic orientation toward the courts and the Charter in relation to the political-economic pressures they faced and by the opportunities available to protect their interests, including the statutory and jurisprudential space that legislatures and judges expand and restrict over time. Historically, the labour movement viewed the judiciary as authors of a highly restrictive regime of industrial legality and their goal was to expand the zone of legal toleration through some combination of labour militancy and political action. The Wagner Act Model, enacted into Canadian law at the end of World War II, was that movement's ultimate achievement. It provided a regime of industrial legality that kept courts at bay (except in the realm of picketing and other strike-related activity, which the judiciary continues to tightly control) but that was premised on labour accepting severe restraints on collective action in exchange for an administrative recognition scheme that imposed a duty on employers to bargain in good faith. Statutory collective bargaining schemes were extended to the broader public [End Page 265] sector in the 1960s, but were subject to important limitations, particularly in regard to essential service workers, whose freedom to strike was even more restricted than that of private sector workers. Unionization rates grew and unions were often able to obtain favourable legislative reforms through their support for the New Democratic Party. Keeping the judiciary's hands off labour law was a shared objective of the labour movement and the industrial pluralists who were the architects and administrators of this new regime of industrial legality. Not surprisingly, unions were wary of constitutional reforms that would enhance the power of the judiciary to override legislation. However, as Savage and Smith show, this was not the only reason the Canadian labour movement was largely absent from the Charter debates of the early 1980s. Crucially, their silence was also driven by need to keep the Quebec labour movement, which was opposed to Pierre Elliot Trudeau's constitutional project, in the Canadian house of labour. Notwithstanding the labour movement's lack of interest in securing specific constitutional protection for labour rights in the Charter, unions were quick to go to court and claim that such rights were implicit in the right to freedom of association and expression and the right to equality. The reason, as Savage and Smith explain, was that...

Who’s Afraid of the Lucky MOOSE? Canada’s Dangerous Self-Defence Innovation

With little public discussion, the Canadian law of self-defence has become, in important respects, more permissive than Florida’s Stand Your Ground law. This article provides original historical research into the origins of the Canadian law of self-defence that reveals the evolution of its current conceptual features. It compares these features with the features of the Florida law and warns that in climates of fear, despite Canadian safeguards, Canada’s law is vulnerable to biased or unprincipled application. The Gerald Stanley case in Battleford Saskatchewan serves as a warning. The author argues that Stanley’s successful accident defence in the homicide of Colten Boushie was, in fact, predicated on dangerous notions of defence of property and defence of person that prioritize the protection of property, liberty, and honour over human life.

Gene Patents in Canada: Is There a New Legal Landscape?

In 2016, the Children's Hospital of Eastern Ontario (CHEO) announced the settlement of its patent lawsuit against US-based Transgenomic, Inc. At issue in the case was CHEO's ability to test for gene mutations associated with long QT syndrome (LQTS) that are described in Transgenomic's patents. CHEO challenged the patents as invalid, and Transgenomic ultimately agreed to license them on a royalty-free basis to CHEO and other healthcare institutions for LQTS testing and research. While widely celebrated in the media, the ethical rhetoric surrounding the settlement has at times obscured the practical and legal context in which it was made and will operate. Here, we provide a nuanced account of the events surrounding the settlement and its implications for research and clinical care. Although the settlement is remarkable for the transparency of its terms and its inclusion of a license intended to benefit unaffiliated test providers, we conclude that another significant implication of the settlement may be its elimination of the opportunity to clarify an increasingly confused area of Canadian law against a backdrop of continued international controversy surrounding the patenting of genes and gene-based diagnostic and therapeutic methods.

Snark Hunting in Canadian Law: Art and Authenticity

Abstract This reflection on the social construction of authenticity analogizes the quest for artistic authenticity to snark hunting. To illustrate the instability of this term, it employs various Canadian examples, including the “Michelangelo” terracotta sculptures donated to the Museum of Vancouver, the “Igloo tag,” the importation of a sculpture by Edward Chukwuweike Madukaego, and the work of Bill Reid. It posits that proclamations of authenticity and fraudulence are ultimately utterances denoting and invoking power relations. It also reveals, through the use of specific examples, how negotiations around artistic authenticity in settler societies can replicate and re-entrench colonialist power.

Children's Charter and Convention Rights in Canada: An Advocacy Perspective

Realization of the human rights of children, as articulated in the Convention on the Rights of the Child, is complicated in Canada by the role of the Canadian Charter of Rights and Freedoms, the role of the Canadian Human Rights Act, and the structural division of powers between federal and provincial governments in Canada’s constitution. Reflection on twenty-five years of advocacy for implementation of the Convention in Canada concludes that the current approach to implementation is inadequate to overcome the structural obstacles to full realization for Canada’s children. This paper presents a case for incorporating the Convention into Canadian law; it also argues that more robust implementation of the Convention through Canadian law would improve the way that Canada’s federal system of governance works for young people.

Precedent Revisited: Carter v Canada (AG) and the Contemporary Practice of Precedent

In addition to the important substantive changes to Canadian law brought about by Carter v Canada (AG), the decision is significant for its consideration of the doctrine of stare decisis. This article examines the circumstances under which Canadian courts, including courts lower in the relevant hierarchy, might be entitled to revisit otherwise binding, higher court precedents and to depart from them. At least in constitutional cases, the Carter trial decision affirms that trial judges may reconsider rulings of higher courts where a new legal issue is raised or where there is a change in circumstances or evidence that “fundamentally shifts the parameters of the debate.” Following a review of the recent Supreme Court of Canada case law on stare decisis, including Carter, the article turns to some critiques of the Court’s newly articulated approach to revisiting precedents in lower courts, and responds to those critiques. The article also looks to the recent case law in which courts largely reject attempts to reconsider precedents from higher courts, revealing that the pull to follow precedent remains strong in Canadian law.

Coercive Transnational Governance and Its Impact on the Settlement Process of Eritrean Refugees in Canada

This article will examine the transnational practices of the Eritrean government, and their impact on the settlement of Eritrean refugees in Canada. The focus is on actions by the Eritrean regime that have a negative effect on refugees’ capacities for successful integration, and undermine Canadian sovereignty. The concept of coercive transnational governance (CTG) is introduced, to highlight this neglected aspect of refugee resettlement, with illustrations from 11 interviews, including eight Eritrean refugees, one Eritrean community activist, and two Canadian law enforcement officers, about the impact of CTG on Eritrean refugees’ lives.

Métis Action, Canadian Law and Historical Research: Preliminary Thoughts about Strategies For Current Efforts

Métis Action, Canadian Law and Historical Research: Preliminary Thoughts about Strategies For Current Efforts

Euthanasia requests in a Canadian psychiatric emergency room: A case series: Part 1 of the McGill University euthanasia in psychiatry case series

Euthanasia was decriminalized in Quebec in December 2015, and Canada-wide in June 2016. Both the Provincial and Federal legislation have limited the right to medical assistance in dying (MAID) to end-of-life cases; which makes MAID inaccessible to most patients solely suffering from psychiatric illness. While some end-stage anorexia nervosa or elderly patients may meet the end-of-life criterion because of their medical comorbidities or their age (Kelly et al., 2003), repeated suicide attempts or psychotic disorganization would not qualify since they would not be seen as elements of an illness leading to a foreseeable “natural death” (Canada, 2016). This is in contradiction to other jurisdictions, such as Belgium and the Netherlands as well as the eligibility criteria stated in the Supreme Court of Canada's decision in Carter v. Canada (Supreme Court of Canada, 2015). Here we analyze three cases of patients who presented to a psychiatric emergency department and requested MAID for psychiatric reasons. While none of the patients were eligible for MAID under Canadian law, we find that their demographics match closely that of patients granted MAID for psychiatric reasons in jurisdictions where that practice is allowed. Based on these cases, we comment on potentially negative consequences that may come from decriminalizing MAID for psychiatric reasons (such as an increased assessment burden on ED staff) and potentially positive consequences (such as encouraging suffering patients who had not consulted to seek care). While it is by no means our intention to take a political or moral stand on this important issue, or to conclusively weigh the negatives and positives of allowing MAID for psychiatric reasons, we do stress the importance of an active voice for psychiatry in this ongoing public debate.

Sexual Orientation in Canada's Revised Refugee Determination System: An Empirical Snapshot

This is one of several articles in a special issue to celebrate Nicole LaViolette's research contributions relating to intersections between gender and sexual orientation in Canadian and international law of forced migration. Inspired by three aspects of LaViolette's research, the article offers a snapshot of how Canada's recently revised refugee determination system addresses refugee claims involving allegations of persecution due to sexual orientation. Using data obtained through access to information requests about 18,221 principal applicant refugee determinations from 2013 to 2015, the article examines patterns in outcomes in cases categorized by the Immigration and Refugee Board as involving sexual orientation. The article also examines patterns in the reasoning offered in 247 published Refugee Appeal Division decisions involving sexual orientation. The author concludes that, despite clear progress, some sexual minority refugee claimants continue to struggle to have their refugee claims adjudicated fairly and that different sexual minority groups encounter unique challenges in this regard. The article ends with recommendations for further research.

The Documentary Method of [Video] Interpretation: A Paradoxical Verdict in a Police-Involved Shooting and Its Consequences for Understanding Crime on Camera

On July 27th, 2013, Sammy Yatim was shot and killed by Toronto Police Services’ Constable James Forcillo during a verbal confrontation on a streetcar as Yatim brandished a switchblade knife. Forcillo was charged, initially with second degree murder, and later attempted murder—a decision that confused media commentators as attempted murder is a lesser-and-included offense to second degree murder in Canadian law. In January 2016, Forcillo was found not guilty of second degree murder and guilty of attempted murder. Video evidence, recovered from the streetcar’s onboard security cameras, was described by the presiding judge, Justice Edward Then, as proving beyond a reasonable doubt that Forcillo’s testimony was unreliable, especially in light of other evidence. This paper examines the use of video evidence to arrive at a ‘compromise verdict’ (Gillis in ‘Compromise’ verdict in James Forcillo trial gets mixed reaction. Toronto Star, 25 January, 2016) and the paradox of being convicted of attempting to murder someone who was killed.

Pragmatic clinical trials and the consent process

Pragmatic clinical trials (PCTs) are a relatively new methodological approach to the execution of clinical research that can increase research efficiency and provide access to unique data. Some have suggested that the costs and delays associated with obtaining informed consent could make PCTs difficult or even impossible to execute. Alternative consent models have been proposed, some of which lower standards of disclosure, delay consent, or waive it altogether. We analyze the permissibility of changes to informed consent in the context of Canadian research ethics policies, legislation, common law, professional codes of ethics, and professional standards of practice. We find that Canadian law and policy relating to informed consent clearly applies to any clinician who might be involved in a PCT. In addition, existing consent norms seem unable to accommodate alternative consent models for pragmatic research if such models would involve lowering the standard of disclosure. The strong emphasis on the primacy of individual rights that exist in law and in research ethics norms cannot easily coexist with strategies that involve either waiver of consent requirements or the provision of incomplete information about the research prior to enrolment. If Canadian policy-makers wish to create the regulatory flexibility necessary to accommodate altered consent and disclosure, it is likely this will require the alteration of existing health information legislation, national research ethics policy, and professional standards.

Internet Intermediary Liability in Defamation: Proposals for Statutory Reform

The law of defamation has long been recognized as out of step with modern tort principles. For example, the publication element requires intentionally conveying defamatory content but no authorship or even knowledge of the content is required. Thus, some have referred to defamation as strict liability. The paper re-examines the Canadian law of publication in defamation in the context of internet intermediary liability. Search engines and website hosts have been sued in defamation for content created by users. Courts have struggled with whether such intermediaries are publishers and if so, whether they have an innocent dissemination defence. The defence applies to those whose role in publication is secondary, and who have no knowledge of, and are not careless regarding the dissemination of, the defamatory contents. Instead of internet-intermediary-specific defences, which make a complicated area of the law more so, the paper proposes to modify the publication element of defamation so that it only ever applies to “primary publishers”. “Primary publishers” include authors, editors and commercial publishers. They are more immediately involved in dissemination and have or should have knowledge of the contents. Some courts have suggested that the publication element should evolve to require knowledge of specific words. However, while knowledge is necessary, it is insufficient. If a newsagent were told a newspaper contained a libel and he continued to sell it, at common law he’d be liable. If Google were told that a search result is defamatory, it might be a defamer if it failed to remove it. We argue that this should not be the case. While there should be legal mechanisms for removing certain content from the internet, and penalizing a failure to remove it, a secondary publisher’s failure to remove content should not make it liable in defamation. The proposed change will resolve many of the internet intermediary liability problems while making defamation law fairer and reflecting modern tort law’s emphasis on fault-based liability. This project is being done in conjunction with the Law Commission of Ontario’s defamation reform project.