Law

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Open Access
Critically Evaluating the Role of the Judiciary in the Good Governance Paradigm: A Study of Pakistan
(2014-06) Muhammad Azeem; Ruth M Buchanan
In this dissertation, I critically evaluate the central role assigned to the judiciary in “the good governance” paradigm (as promoted by international institutions such as the World Bank), through a study of Pakistan. I argue that the paradigm’s focus on institutional arrangements/rearrangements, in order to produce a strong judiciary, judicial reforms, and to implement ‘the rule of law’, is problematic. I find, in contrast, and based on a detailed historical study of the different judicial regimes in the post-colonial era, that the judiciary is a part of the state, and has served to reproduce the state, in its democratic and military forms, as well as political and structural inequality in Pakistan. I document in detail how the judiciary increasingly gained autonomy in state power leading to result in what I term as a ‘judicial dictatorship’ by the 2000s. Through the thesis, I advance an alternative structural analysis of the state and institutional arrangements, using a class analysis and historical-contextual approach. My study argues that a strong (‘activist’) judiciary cannot be a substitute for a weak and inadequately representative legislature. The fallback position of the judiciary - in promoting a ‘rights’ discourse, or protection of minorities - is also an inadequate remedy for the lack of a deeper democracy in the society. My research in Pakistan contributes to the view that the role of the judiciary ultimately is to uphold political ends crafted elsewhere, rather than be seen as an agent to ‘cause’ political betterment. This study is based on most of the relevant case law in the post-colonial era, primary sources such as interviews, speeches, and judge’s monographs, as well as the available secondary material such as journal articles, books, and newspaper reports.
Open Access
Law, the American Corporation, and Society
(2014-07-09) Stewart, Fenner Leland; Zumbansen, Peer
This book explores how American legal scholarship treats the corporation by providing a history of American corporate legal theory, a history of corporate (social) responsibility from the perspective of the Berle–Dodd debate, an analysis of how legal scholars understand corporate lawmaking in America, and an initial inquiry into how the prevailing opinions about the corporation are realized in the context of a critical assessment of whether or not this resulting corporate governance holds the potential to compliment the efforts of new governance regulators. This book consists of four essays about American corporate governance. Three essays trace how three particular presumptions about the corporation came to become part of the dominant narrative about the corporation within the American academic context. The first presumption is that the American contractarian theory of the corporation most accurately frames an understanding of the corporation. This presumption underpins much of Delaware’s corporate law. Second is the notion that shareholder value maximization provides the necessary precondition for effective corporate governance. The modern incarnation of this presumption was inadvertently inspired by the early 20th Century work of Adolf A. Berle. Third is the idea that there is market competition for incorporations between states, and this competition creates a “race to the top.” Such presumptions help shape the dominant narrative about the American corporation. In the final chapter, the elements of these presumptions, and the narratives they weave, are reconsidered within the context of new governance, which encourages private actors, like corporations, to play larger roles within the administrative functions of governments. It is explained how new governance thought presumes that corporations are becoming more imbued with a sense of public spiritedness. This presumption is closely examined and then ultimately rejected as dangerously optimistic considering the narratives that dominate corporate legal thinking—at least in the American context. Each of the four chapters has been published in U.S. law reviews, creating a portfolio of essays regarding the American corporation and its place in society.
Open Access
What it is-What it Should Be: An Empirical Analysis of the Effect of Procedures and Substantive Arguments on Adjudicative Tribunal Resource Allocation Decisions
(2014-07-09) Ferreira, Lydia Christine Stewart; Gilmour, Joan M.
Our current understanding of tribunal resource allocation decision-making is via judicial review of tribunal decisions and/or the capacity, independence and appointment process of tribunal members. This analysis of tribunals provides incomplete information. This qualitative five year case study, however, asked the three following questions: Research Question #1: Do procedures statistically affect the resource allocation decisions of the Board? If so, what elements of the procedures create this statistical effect? The author analyzed the quantitative research results relative to the A4R theory’s four procedural conditions of transparency and concluded that the A4R theory it was not ‘fine grain’ enough to identify the complexity of the tribunal resource allocation decision making. Quantitative analysis revealed that Board decisions were influenced by elements of the Board’s procedure. In particular, the author’s statistical analysis found that the Board’s procedures statistically did affect resource allocation decisions by disadvantaging self- represented parties and, for a certain year, parties not participating in the tribunal’s hearing orally/in person. Research Question #2: What substantive arguments affect the resource allocation decisions of the Board? This study confirmed that submissions by the parties – the patient and OHIP - affected resource allocation decisions. However, within these substantive arguments the research found that patients and administrative requirements played a key role in determining out of country coverage of non emergency inpatient health services (OCCNEIHS). The research also identified that more patients requesting OCCNEIHS argued for treatment to be considered acceptable than argued that treatment domestically would be delayed. The research also identified that there was an absence of arguments regarding the economic implications of OCCNEIHS. Research Question #3 What Should Be the Revised Resource Allocation Decision Making Mechanism? It is recommended that any non-neutral procedures be further examined and potentially eliminated. It was also recognized that significant expert consensus on multiple factors was required in order to make resource allocation decisions. As a result of this research, it is recommended that resource allocation decisions should be based on a multi factorial algorithm comprised of ongoing expert consensus, available publicly and utilized by OHIP for the determination of resource allocation. The Board’s jurisdiction should be revised.
Open Access
Securities Regulation of Ontario Venture Issuers: Rules or Principles?
(2014-07-09) Allen, John Pearson; Condon, Mary G.
Should the securities regulation of Ontario venture issuers be based primarily on rules or principles? Advocates for rules argue that detailed rules, with predictable meaning and scope, allow participants to focus on matters other than compliance. Advocates for principles argue that when an activity is complex, such as securities trading, detailed rules can become a confusing web, obscuring core values and discouraging creative solutions. The rules and principles literature is reviewed, along with the topics of risk-based, responsive, outcomes oriented and proportionate regulation. Governance theory is addressed and various compliance theories are discussed. From this, eight factors are gleaned to assess where along the rules/principles continuum a particular area of regulation should lie: (i) Is there a shared understanding of regulatory principles within the community being regulated? (ii) Are the regulated committed to the public interest? (iii) Are the regulated able to find analogous solutions? (iv) Are there institutions or actors which promote regulatory collaboration? (v) Do the regulated see enforcement as fair and effective? (vi) Are regulatory issues predictable? (vii) Should historical transactions be disclosed? and (viii) Should future projections be disclosed? These factors are then explored with a survey of 175 managers of venture issuers, followed by in-depth consultations with six experts in the industry and by a consideration of other matters. The assessment of the eight factors suggests that in some respects, principles could be effective for Ontario venture issuers since they are more flexible and can adapt to the changing complexities of securities regulation. However, principles-based regulation requires a shared understanding of, and commitment to, regulatory principles, and the answers given by many of the respondents to the survey and the discussions with the six experts consulted suggest that more work needs to be done before principles-based regulation could be effective.
Open Access
Grounding Equality in Social Relationships: Suspect Classification, Grounds of Discrimination, and Relational Theory
(2014-07-09) Eisen, Jessica Nichol; Bhabha, Faisal
This thesis considers the implications of relational theory for doctrinal debates in Canadian and American constitutional equality law, with a focus on grounds of discrimination and suspect classification. Chapter 1 sets out the fundamentals of feminist relational theory, emphasizing relational approaches to difference, equality, and rights. Chapter 2 considers the methodological implications of applying relational theory to doctrinal problems. Chapter 3 sets out the basic structure and evolution of the suspect classification inquiry in American equal protection law. Chapter 4 does the same in respect of the Canadian doctrinal approach to grounds of unconstitutional discrimination. Finally Chapter 5 ties together Canadian and American scholarly debates over the proper shape of inquiries into groups/grounds or class(ification), and suggests a framework by which the relational theory set out in Chapter 1 might help to reframe and resolve aspects of these problems as they emerge in both jurisdictions.
Open Access
A Comparative Study of Patent Infringement Remedies Related to Non-Practicing Entities in the Courts of Canada, the United Kingdom, and the United States
(2014-07-09) Nikolic, Aleksandar; Mgbeoji, Ikechi M. C.
This work examines the scope of non-practicing entity behavior and whether the debate on remedies can lead to changes that encourage the goals behind a patent system. Innovation is often the stated goal but the significance of innovation commercialization is often ignored. Furthermore, there has been an increase in business models that involve alternate means of monetizing patents, not all of which were contemplated in the purpose of the patent system. Using the goals of the patent system as a backdrop, this work provides an overview of the impact of remedies available to courts in Canada, the United Kingdom, and the United States on patent systems. The courts have the tools in each jurisdiction to grant remedies appropriate to the infringement. However, systemic limitations in each patent system often prevent the courts from reviewing disputes.
Open Access
Rules of Disengagement: 'Low Skill' Migrant Workers, Law and the Social Dimensions of Exclusionary Inclusion
(2014-07-09) Jowett, Brendan Breckman; Rehaag, Sean
This thesis interrogates social exclusion among migrant workers under the NOC C & D (“low skill”) occupational stream of Canada’s Temporary Foreign Worker Program, a relatively new, fast-growing, and highly diverse stream which brings migrant workers into industry sectors and social settings where they were never seen before. The author develops a framework for understanding law’s role in producing social exclusion, and applies it to ethnographic data collected through interviews with migrant justice advocates and migrant workers in Brandon, Manitoba. This thesis ultimately establishes that migrant workers need not face spatial separation, discrimination from the community, or a historically gendered and racialized labour context in order to experience social exclusion; the author argues that social exclusion is legally constructed and that the legal framework of this program itself presents barriers to migrants’ full participation in the life of the communities in which they live and work.
Open Access
Informal Transnational Police-to-Police Information Sharing: Its Structure and Reform
(2014-07-09) Walton, Michael Robert; Beare, Margaret Evelyn
This thesis examines the informal sharing of information and cooperation between police agencies across international borders, and how it is or should be informed by international human rights law. The author looks at how intelligence-led policing theory has affected transnational policing. A distinction is made between police actions made on domestic soil that have adverse consequences abroad and police actions made on foreign soil that have adverse consequences. The first category of cases is firmly within jurisdiction and covered by domestic and international legal obligations. The second category of cases introduces the concept of the extraterritorial application of international human rights instruments. The theory is illustrated by the case studies of the Bali Nine and of Maher Arar. Finally the author suggests methods of best practice for transnational information sharing and suggests that all government agencies should follow these rules.
Open Access
Adjudicating Human Rights in Transitional Contexts: A Nigerian Case-Study, 1999-2009
(2014-07-09) Ugochukwu, Basil Emeka; Okafor, Obiora C.
While transitional justice and democracy literature bristles with the expectation that human rights conditions would improve with the progression from the “darkness” of a dictatorship to the “light” of democratic rule, Nigeria’s transition to civil rule in 1999 would seem to provide a sobering contra-reality. Democracy does not seem to have produced a better human rights environment in the post-transition Nigerian context. This dissertation answers the question why the restoration of civil rule in Nigeria has not translated to results in human rights practices that come close to matching the expectations of its citizens and the predictions of transitional justice literature? It investigates, however, only the extent to which human rights violations correlates with the lack of effective judicial protection of those rights between 1999 and 2009. The methodology is mostly interdisciplinary. The discussion is organized around doctrinal legal reasoning and case-law analysis. First analyzed were cases decided prior to 1999 to show the slippery provenance and inadequacy of the current rights-based adjudication standards. Cases decided since 1999 were then evaluated to measure the claim that the judiciary is failing in its duty as guardians of human rights post-transition. To that extent, the dissertation has not limited itself to a single theoretical model. It was found that some of the biggest problems afflicting human rights adjudication in Nigeria are historically defined. A major challenge is the apparent lack of a clear standard for reviewing laws and actions against the constitutional requirement that they be reasonably justifiable in a democratic society. This creates a culture where human rights cases are approached on an ad hoc case-by-case basis such that contradictory decisions are possible from cases with similar facts. Dealing with this challenge is not helped by the country’s legal history and the doctrines of the British legal system that a colonial relationship fostered after independence. The current approach is still orientated towards British administrative law principles which did not demand the standard of intense scrutiny required for the effective protection of human rights norms. The dissertation therefore recommends a reformed system of legal education with strong comparative approaches to change this orientation.
Open Access
"That Indispensable Figment of the Legal Mind": The Contract of Employment at Common Law in Ontario, 1890-1979
(2014-07-09) Mumme, Claire Isabel; Arthurs, Harry W.
“The relation between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power. In its inception it is an act of submission, in its operation it is a condition of subordination, however much the submission and the subordination may be concealed by the indispensable figment of the legal mind known as the 'contract of employment'.” Otto Kahn-Freund , Labour and the Law (London: Stevens, 1977) This study examines the legal evolution of the common law of employment contracts in Ontario between the 1890s and the 1970s. It focuses on the changing relationship between notions of property and contract in employment, as visible through the judicial discourse of reported common law cases. I argue that between the 1890s and the end of the 1970s Ontario saw the emergence and consolidation of two different conceptual paradigms for regulating work at common law. The common law of employment contracts was framed and reframed over different eras of the 20th century through what the courts understood of the nature of the exchange between the parties, the property interests involved and the legal tools necessary to manage that exchange. Contrary to the traditional narrative in the field, the courts of Ontario first conceptualized employment as an exchange as of the turn of the 20th century. This first paradigm emerged in tandem with the province’s second industrial revolution, and sought to regulate the discretionary nature of white collar professional work. The second paradigm was entrenched in the 1960s and 1970s. It is over these years that workers in Standard Employment Relationships (SER) first began to bring employment-related claims to the common law courts, a few decades after it emerged as the paradigmatic form of work around which Ontario’s labour market and employment laws were fashioned over the mid-century. The basic premises of the SER, of long-term employment, job security and internal career advancement, fundamentally changed the psychosical and economic terms of employment. But faced with workers’ claims for recognition of these new terms in law, the courts instead chose to entrench a limited legal framework which denied job security as an enforceable contract term.
Open Access
"The Rise and Fall of Welfare Health Legislation in 20th Century Chile: A Case Study in Political Economy of Law"
(2014-07-09) Llambias-Wolff, Jaime; Buchanan, Ruth M.
This dissertation analyzes the economic and political dynamics of health legislation in Chile throughout the 20th century. Law is understood as a process, in which legislation is the consequence of the political interaction between different stakeholders within a specific socio-economic and political reality. Law thus performs as a function of its political dynamics. This case study discusses lawmaking in its multifaceted character fulfilling different roles, understanding health legislation in Chile as the expression of how society articulates and represents different interests and how health reforms are determined by the influence and capabilities of interest groups. The legal framework is situated within a broader national social, economic and political context, mediated by international influences and the strategic role assumed by the state. Empirically, the dissertation analyzes how economic and political variables have shaped different legal transformations in a country that has experienced significant, paradigmatic changes in health law, moving from a basically charitable system, inherited from the Spanish colonial power, to a strong and profoundly European welfare system—the second oldest national health service in the world—to a radical neo/liberal market model introduced in the late 1970s, and finally, towards a mixed public-private system, still present.
Open Access
The Allocation of Burdens in Litigation Between First Nations and the Crown
(2014-11-19) Posluns, Michael Wilfred; Scott, Dayna Nadine
This thesis is about two inter-related matters: first, the allocation of burdens of proof in litigation between First Nations and the Crown; and, secondly, the reaction or response of the Crown to the Court’s allocations of burdens, as evidenced in the subsequent cases. Since “burdens of proof” refers to matters of fact and evidence, I refer simply to “burdens”, emphasizing that, I mean all the burdens allocated by a Court and which the Court expects the parties to discharge in order for their case to succeed. My initial interest was in the response of the Crown to the allocation of burdens by the Court and related admonitions. In pursuing this matter it became evident that I needed to establish what allocations the Court had set out and what admonitions it had made as regards previous arguments of the Crown. There are two sets of viewpoints that I examine in this paper: The first is the jurisprudential view as to the allocation of burdens in the Aboriginal and treaty rights cases that I discuss here. The second is the more political and policy-based view of the Crown, federal or provincial, as to its burdens of proof and related burdens, such as the duty to consult and to accommodate, previously set out by the Court. This divergence between the Court’s view and the Crown’s and the recurring indications that the Crown does not intend to accept the Court’s view is my primary interest. I will, at times, refer to the Crown’s attitude, exemplified by this divergence as “recalcitrant” and its behaviour as “recidivism”. It is this divergence between the Court’s interpretations and the Crown’s actions and arguments which is my primary interest throughout this discussion. As a lens through which to examine this divergence I review two bodies of literature on theoretical constructs useful in understanding how the Government seeks to shift certain proof burdens onto First Nations parties. The first is the idea of “purposive interpretation” as it is discussed by Chief Justice Dickson and Justice La Forest in Sparrow, and by other leading jurists as well as academic writers who consider this kind of interpretation as one most appropriate for understanding constitutionally entrenched rights. The second is the idea of the “empty box” versus “full box theory” as held by advocates for First Nations and other Aboriginal communities, among others.
Open Access
The March of Judicial Cosmopolitanism and the Legacy of Enemy Combatant Case Law
(2015-01-26) Sontrop, Madalina Iulia; Saberi, Hengameh
This thesis explores the concept of judicial cosmopolitanism and its prevalence in enemy combatant case law. The author draws upon the theoretical and philosophical underpinnings of cosmopolitanism and cosmopolitan law to describe judicial cosmopolitanism as form of legal discourse through which judges show a willingness to extend constitutional protections based on a contemporary, functional understanding of sovereign jurisdiction. The purpose of this work is to address the correlation between enemy combatant jurisprudence and the aforementioned understanding of judicial cosmopolitanism. It is argued that a march of judicial cosmopolitanism developed early in enemy combatant cases, and that it came to a standstill in more recent decisions.
Open Access
Legal Ethics as a Moral Idea: A Theory of Philosophical Legal Ethics Based on the Work of Lon Fuller
(2015-01-26) Tucsa, Emanuel Raul; Hutchinson, Allan C.
The legal philosophy of Lon Fuller, both in his idea of internal morality and in his theory of legal interpretation, is particularly useful for the purpose of making sense of the relationship between law and morality vis-à-vis the legal profession. Legal ethicists have recently developed accounts of legal ethics that are based on jurisprudential theories. These include the exclusive positivist theory of Tim Dare, the inclusive positivist approach of Bradley Wendel, and the substantive contextual judgment view of William Simon. Additionally, David Luban has proposed and evaluated an insightful interpretation of Fuller’s legal philosophy. In this paper, I will argue that the legal philosophy of Lon Fuller provides the best jurisprudential foundation for philosophical legal ethics and the norms of legal ethics. This includes the treatment of topics such as the relationship between law and morality and the duty of fidelity to law. In addition to arguing these points at a purely conceptual level I make the case that a Fullerian theory of lawyering is indispensable for making sense of a major recent case study in the field of legal ethics, the “torture memos” written for the Bush Administration by the US Justice Department’s Office of Legal Counsel (the “OLC”). Using a Fullerian approach to legal ethics, I will argue that the inappropriateness of these memos goes beyond the failure of the OLC lawyers to interpret particular laws in good faith. Rather, taking a view of law and lawyering inspired by Fuller’s legal theory, I will argue that, of all of the reasons that one might criticize the OLC lawyers, it is of deepest importance to understand the ways in which the OLC lawyers acted contrary to the ideal of legality in drafting these memos. I hope to provide insight into the philosophical foundations of legal ethics, as well as a major recent case study for legal ethics and to highlight the connection between lawyering and the vindication of the ideal of legality.
Open Access
Recovering the Promise of Public Truth: Juridification and the Loss of Purpose in Public Inquiries
(2015-08-28) Mckeachie, Jessica; Berger, Benjamin L.
My intention in this work is to investigate the apparent disconnect between the intended social purposes of inquiries and the impact pressures of juridification have had on them, and consider what steps inquiries may take to resist these pressures. Public inquiries, formerly relied on as an alternative to criminal and civil proceedings and as a means to engage the public on issues of policy, now seem to exhibit more intense procedures akin to those found in the alternative processes they were designed to resist. Under increasing juridification pressures, what function should public inquiries fulfil? In short, my aim is to explore our understanding of public inquiries and the implications of the trend towards juridification is having on the ability of public inquiries to fulfil their social and policy functions.
Open Access
Creating a Cultural Analysis Tool for the Implementation of Ontario's Civil Mental Health Laws
(2015-08-28) Dhand, Roby; Mykitiuk, Roxanne
The purpose of the study was to develop a Cultural Analysis Tool (CAT). The CAT consists of specific thematic questions that can serve as a cultural and equity analysis instrument for practitioners to use in the implementation of Ontario’s civil mental health laws. The rationale behind creating the CAT is based on research suggesting that ethno-racial people with mental health disabilities experience inequities and differential outcomes while interacting with Ontario’s civil mental health laws. Given the increasing multi-racial population in Ontario, there is a need to develop mechanisms to address these intersecting issues. Other countries that have created evaluative tools for mental health legislation include the United Kingdom and Australia. Such a tool does not exist in Canada, let alone in Ontario specifically. This study contributes to a better understanding of how equitable outcomes for ethno-racial people with mental health disabilities interacting with Ontario’s civil mental health laws can be achieved. I developed the CAT through an iterative process involving a comprehensive review of the literature and qualitative data drawn from thirty-five semi-structured interviews with seven members of each of the following groups: (1) ethno-racial people with mental health disabilities including in-patients and ex-patients, (2) lawyers who practice in the area of mental health law, (3) health care professionals including psychiatrists, nurses and social workers, (4) service providers such as front-line case workers at mental health agencies and (5) adjudicators, government advisors and academics. I analyzed the data using the grounded theory approach, symbolic interactionism, tenets of the theoretical framework and an analysis of the jurisprudence, legislation, international laws and literature on the existing tools used for mental health legislation. After developing a draft version of the CAT, I refined the CAT’s questions through an expert review (involving the qualitative technique of member-checking) using three focus groups of 1) ethno-racial people with mental health disabilities, 2) mental health lawyers and service providers and 3) health care professionals. Lastly, in order to develop the final version of the CAT, I analyzed and contextualized the results that emerged from the interviews through primary and secondary sources and the focus group data.
Open Access
Workplace Harassment: A Cross-Jurisdictional Comparative Analysis of Legislative Responses to this Workplace Phenomenon in Canada
(2015-08-28) Carr, Kayla Alice; Slinn, Sara J.
This thesis investigates different statutory models Canadian legislatures have enacted to address workplace harassment. It adopts a qualitative, comparative case study approach, providing an in-depth comparative analysis of legislation from Québec, Saskatchewan, Ontario, Manitoba and British Columbia. Through this analysis, this thesis outlines the ways in which workplace harassment has been regulated in Canada, why that model was adopted by the jurisdiction and how that model measures against other models for legislating workplace harassment. Through an examination of existing literature relating to workplace harassment stemming from three theoretical paradigms and an analysis of a model legislative framework, this thesis creates a tool for scholars and lawmakers to use for future research and enactments of workplace harassment legislation. Overall, this thesis demonstrates that the varying and complex nature of the enacted legislation in the aforementioned Canadian jurisdictions leaves room for improvement for future enactments and amendments of workplace harassment legislation.
Open Access
Rights and Responsibilities: What are the Prospects for the Responsibility to Protect in the International/Transnational Arena?
(2015-08-28) Filteau, Carolyn Helen; Bunting, M. Anne
The dissertation involves a study of the emerging international norm of ‘The Responsibility to Protect’ which states that citizens must be protected in cases of human atrocities, war crimes, ethnic cleansing and genocide where states have failed or are unable to do so. According to the work of the International Commission on the Responsibility to Protect (ICISS), this response can and should span a continuum involving prevention, a response to the violence, when and if necessary, and ultimately rebuilding shattered societies. The most controversial aspect, however, is that of forceful intervention and much of the thesis focuses on this aspect. The history and context of the Responsibility to Protect are examined as an evolving norm in international law. The study thus serves as an analysis of how a fundamental and controversial international principle has been established: its promotion, creation, formulation, acceptance, and ultimately its implementation. The dissertation identifies five critical sociopolitical issues of significance affecting the evolution of the Responsibility to Protect in international law and its implementation and considers remedies where appropriate. Analysis of an application of the principle through force is undertaken in the context of the UN sanctioned intervention into Libya in 2011. This case study provides a clearer picture of what the Responsibility to Protect means as a legal basis for international intervention in genocidal situations. The study finds that international law is but one factor in the substantiation of the Responsibility to Protect – legitimacy counts as well as legality and for it to be implemented the self-interest of states must acknowledge ‘universal’ legal and ethical principles of a humanitarian nature. Also contributing to the success of a Responsibility to Protect intervention are nongovernmental actors as part of transnational governance who in a particular situation cry out for action in the face of evolving humanitarian atrocities in spite of rules of sovereignty and state hegemony. The more general significance of this research is in its understanding of existing and new forms of hard and soft governance and how they adapt in the international and transnational arena.
Open Access
Unanimous Shareholder Agreements
(2015-08-28) Juzda, Nicolas William; Waitzer, Edward J.
The unanimous shareholder agreement is a feature of most Canadian corporate statutes that allows the shareholders to, by creating an agreement meeting the necessary criteria, restrict the powers of the directors to manage the business and affairs of the corporation. One possible justification for this is the "nexus of contracts" theory that all corporations are notionally reducible to voluntary agreements. Three key areas of ambiguity surrounding unanimous shareholder agreements are examined in this dissertation, with specific reference to existing judgments. The requirements for their formation are reviewed, including the exact meaning and strictness of the unanimity criterion and the necessity and validity of possible restrictions upon the directors. Four competing approaches to their enforcement are identified and contrasted: the corporate constitutional approach that truly removes the board's powers, the contractual approach that treats unanimous shareholder agreements as contracts existing alongside the corporate power structure, and the directors' duties and oppression approaches that apply existing corporate law remedies to deal with violations. The transfer of duties and liabilities that accompanies unanimous shareholder agreements is considered in the context of unusual power structures and stakeholder theory, revealing unaddressed and possibly unsolvable problems in the legislation. It is concluded that, although the unanimous shareholder agreement may suggest a move toward a more contractual view of the corporation, it can also be understood as a specific tool within the statutory framework.
Open Access
Tracking Queer Kinships: Assisted Reproduction, Family Law and the Infertility Trap
(2015-08-28) Marvel, Stewart Donnell; Drummond, Susan
The global advent of assisted human reproduction has brought with it an upheaval in social, cultural and legal norms of the family. The centrality of biological reproduction to the traditional heterosexual family has been challenged by reproductive intervention, further destabilizing nuclear family norms already unmoored by same-sex marriage, single mothers, unwed fathers, and increased access to divorce, contraceptives and abortion. As these challenges have shifted EuroAmerican social norms of family, the law has increasingly been called upon to preside over the re-organization of intimate life, operating as a central vehicle to reframe the relationship of the family to the state. This relationship remains critical, as the family remains the preeminent social institution and the conduit through which both biological and social reproduction are performed. The traditional family has thus become the site of considerable anxiety, and perhaps nowhere more so than in regard to assisted human reproduction (AHR). This dissertation argues that the complex outcomes of blood, genetics, sociality and affiliation created through reproductive technology, and the legal struggles they engender, cannot be understood as mere deviations from the heterosexually reproductive family. Instead, it invites exploration of the sociality and legal bonds created by the inherently non-reproductive family as a locus to understand the decoupling of sex from reproduction that is being produced through AHR. It draws from more than 1200 pages of interview transcripts with lesbian, gay, bisexual, trans, two-spirit and queer [LGBTQ] Canadians who have used or considered using reproductive assistance, and reflects upon this data to examine the assumptions of law, nature, technology and kinship that drive the conceptual vocabularies of AHR. Its central contention is for the utility of a queer perspective on reproductive law and technology, as a way to pry open cognate issues around kinship, biology, sociality and the order of family. By placing LGBTQ participant voices at the fore, this dissertation offers a fresh analysis on complex questions of parentage, child-rearing and the legal regulation of intimacy.