Our Anxious Supreme Court

[cross posted from https://cfe.ryerson.ca/blog/2017/05/our-anxious-supreme-court]

One gets the sense that the Supreme Court of Canada does not have a good feel for free speech questions. It took some time, for instance, for a majority of the Court to acknowledge that legal constraints might ‘chill’ free speech. The Court confidently proclaimed, on more than one occasion, that civil and criminal legal prohibitions should not be expected to deter speakers. 

Only recently did the Court acknowledge this possibility and, accordingly, relaxed the law of libel so as to allow a new defence of responsible communication on matters of public interest. The Court did so only after other commonwealth Courts had taken a lead in relaxing the common law of libel. It was this reform that enabled the press to report freely on the misdeeds of the late Toronto Mayor, Rob Ford, without the worry of a lawsuit.

Rolling back investor protection in the Trump Era

Attempting to fulfill his election promises, President Trump has begun to reevaluate post financial crisis rules designed to protect investors. The broad-based Dodd-Frank Wall Street Reform and Consumer Protection Act will be the target of much of Trump’s reforms in this area, which if repealed would undoubtedly leave investors vulnerable.

The Dodd-Frank Act added lending restrictions aimed at: preventing the formation of risky mortgages, protecting consumers against predatory provisions and extending similar protections to common forms of consumer debt including credit cards. In addition, its bank investment provisions (the ‘Volcker Rule’) prevent banks from trading securities in their own account while also restricting their investment in hedge funds and private equity. The derivatives provisions create a framework for the regulation of over the counter swaps, restricted regulatory authority of swap agreements and incorporated anti-fraud measures.

But the President and his team cannot instantaneously unwind Dodd-Frank – it is, after all, enacted law which would require 60 votes to be repealed and Republicans in Congress would not yet provide the support needed given that only 52 votes appear to be available.

Is the World Better Prepared for the Next Financial Crisis?

Eight years have passed since the most recent global financial crisis although its long-term effects linger in the form of low growth rates, weak labour markets and high levels of public and private indebtedness in many countries.  History suggests that we will experience more crises which will increasingly exhibit international dimensions with the internationalization of financial markets. Thus, we must confront the central question of whether there is an optimal regulatory structure that countries should implement, given that members of the G-20 have individually committed to regulating systemic risk in their respective domestic economies.

Financial crises come in many shapes and sizes. In a recent widely acclaimed survey of eight centuries of financial crises around the globe, Reinhart and Rogoff (2009) helpfully categorize them as including sovereign defaults, banking crises, exchange rate crises and finally crises marked by bouts of very high inflation that constitute the de facto equivalent of outright default on public or private sector debt. These are not watertight categories, of course – what may begin as one type of crisis can quickly transform into a different class of crisis both within and across countries.

InterOil-Exxon precedent delivers a wake-up call on fairness opinions

 

Published in the Globe and Mail on November 29, 2016.

Rare is the precedent-setting securities case that emerges from the Yukon Court of Appeal. The recent attempted arrangement between InterOil Corp. and Exxon Mobile Corp., however, has given rise to such a case. The decision contains a welcome judicial pronouncement on fairness opinions in the context of corporate mergers.

InterOil was set to merge with another corporation before Exxon came forward with a “white knight” offer. InterOil’s financial adviser, Morgan Stanley, provided it with a fairness opinion stating that the merger (which was structured as an arrangement) was fair from a financial point of view.

While fairness opinions are common in merger transactions, their purpose may be legitimately questioned. Should they provide shareholders with information about their investment and the transaction under consideration? Or, in the words of the judge at first instance, are they simply “comfort letters” that provide boards with support for their decision to enter into the merger?

When is an Arrangement an "Arrangement"?

 

Recently, the Alberta Court of Queen’s Bench handed down a decision regarding the proposed merger of Alberta Oilsands Inc. (AOS) and Marquee Energy Ltd. (Marquee) via a plan of arrangement. [1] The well-reasoned decision rightly suggests that it is within the court’s discretion to decide whether all affected parties are being treated fairly and reasonably in a proposed arrangement. It is not up to the corporation seeking to be arranged to make this determination for the court.

AOS is an Alberta VSX listed public company which has no business operations, but close to $35 million of cash on its balance sheet.  The board of AOS has spent several years in a strategtic process to identify an acquisition that would be beneficial for the company.

The Dangers of Euthanasia on Demand: Op-ed Chicago Tribune on the Dutch "Completed Life" Assisted Dying Proposal

The following co-authored editorial first appeared in the Chicago Tribune on October 18, 2016. It is a commentary on the Dutch government's proposal to introduce a new law that would enable state organized life-ending interventions for people who feel they have a 'completed life' but do not suffer from any 'untreatable medical condition' that causes 'unbearable suffering' (which are the key criteria to obtain access under the Dutch Euthanasia law). A new special 'counsellor in dying' would assess whether the request to have one's life terminated would be 'genuine' and based on a reasonable assessment of 'completed life'. 

The dangers of euthanasia-on-demand

Senator Murray Sinclair's Call for Senatorial and Legal Restraint Should Inspire All of Us

The deluge of op-eds, blogs, commentaries, media interviews and news reports about Bill C-14 on Medical Assistance in Dying has created a level of over-saturation. More careful, reflective statements are increasingly hard to find. What now dominates the debate are bold statements about the constitutionality of the Bill—University of Ottawa’s Amir Attaran apparently even inventing a new constitutional qualifier of ‘unconstitutional by the bucketfull’--and reports of difficult and emotional end-of-life situations, which Bill C-14 may indeed not necessarily solve. It is therefore perhaps no surprise that the eloquent, respectful and wise intervention in the Senate by the Honourable Murray Sinclair, former judge and former Chair of the Residential Schools Truth and Reconciliation Commission, did not receive much attention in the media.

New Bill Medical Assistance in Dying Balances Competing Charter Rights; Prior Review Still Needed

The Canadian government just released its bill on Medical Assistance in Dying, in response to the Carter decision. The Government wisely decided that a criminal law prohibition should remain in place, but that in exceptional circumstances, medical acts that hasten a person's death are exempted from the criminal prohibition.  The Bill is emphasizing the importance of balancing competing Charter rights: the right for some people in exceptional circumstances to obtain active medical support for a life ending intervention (justified under Carter under the right to life, liberty and security of the person) and the right of those who are vulnerable and require our protection and full support, which--as Dianne Pothier aptly demonstrates--is associated with the Right to Life and Security of the Person and the Right to Equality. The access criteria reflect an appropriate balance, which was missing from previous reports that nearly exclusively focused on 'access' and individual choice, that ignored how contextual factors contribute to vulnerability, and that ignored growing evidence of problems in open-ended access regimes.

Canadians Support a More Prudent Approach to Medical-Aid-in-Dying than Parliamentary Committee, and Rightly So

Just when the federal government is about to table its bill on medically-hastened-death (or medical-aid-in-dying, physician-assisted dying, euthanasia, or physician-assisted-suicide), a new extensive poll of what Canadians want to see in new legislation suggests that Canadians support a more prudent approach than the open-ended access approach put forward by the Joint Parliamentary Committee (JPC) report and, prior to that, a Provincial-Territorial Expert Advisory Group (PTEAG) report. Canadians continue to support access to ‘physician assisted suicide’ (PAS), the term used in the poll, but a majority (51.8%) opposes the idea of providing access to PAS when the request is based on psychiatric conditions and purely psychological suffering. A majority also appears opposed to PAS for mature minors (in the poll: 16 to 17 year olds).  The 1,000 people polled were also asked about what they preferred as review mechanism. 59% of those polled support the recommendation by the committee of a review by two physicians, while 41 % supports a review by a ‘panel of independent experts’.