The Canadian Business Law Journal (CBLJ) was established in 1974 to provide Canadian lawyers with a written forum for discussion of current developments in all branches of Canadian business law. Since then, it has also expanded into the international arena.

The Journal is the leading source for coverage of current issues in business law, encompassing a broad range of subjects: banking, consumer law, products liability, securities regulation, taxation, real estate and trade regulations, as well as current legislation, case law and policy developments.

The CBLJ has been managed, since its inception, from the University of Toronto Faculty of Law. Its founding editor was Prof. Frank Iacobucci, who was succeeded by Prof. Jacob Ziegel. It is now edited by Professor Anthony Duggan.

About the Editor

Professor Duggan holds the Hon. Frank H Iacobucci Chair in the Faculty of Law at the University of Toronto. Professor Duggan’s research and teaching interests include secured transactions, bankruptcy law and trusts. He has published widely in these areas and in the areas of contract law, consumer credit and consumer protection.

Editor-in-Chief Emeritus: Jacob S. Ziegel

Book Review Editor: Jason MacLean, College of Law, University of Saskatchewan.

About the Journal

The CBLJ is Canada’s leading forum for the exchange of ideas between academics and practitioners working in the commercial law field. Each issue includes both commentary on current legislative and case law developments and in-depth analysis of major issues in the corporate, commercial and international arenas.

It is frequently referred to in court judgments at all levels and has established an undisputed reputation as Canada's leading journal of commercial and business law.

Canadian Business Law Journal, June 2021, Volume 64, Number 3

Contents

  • Sarah E. Pepall and Kirandeep K. Mahal, “Evolution or Revolution: 100 Years of Change in Canadian Bankruptcy and Insolvency Law”
  • Tamara M. Buckwold, “Issues in Fraudulent Conveyances Law: Rethinking Creditor Sharing and the Oppression Remedy”
  • Thomas G.W. Telfer, “Equitable Subordination Redux? Section 183 of the Bankruptcy and Insolvency Act and Respecting the “Legislative Will” of Parliament”
  • Alfonso Nocilla, “Pre-Packaged Sales and the Destruction of Value: The View from the United Kingdom”

Canadian Business Law Journal, September 2021, Volume 65, Number 1

Contents

ILLEGALITY AND UNJUST ENRICHMENT

Mitchell McInnes, Faculty of Law, University of Alberta

The Supreme Court of Canada furthered its development of a uniquely Canadian conception of unjust enrichment in Moore v Sweet. The analysis was conducted at an unusually high level, by both the majority and the dissenting members, but the results were not entirely satisfying. First, the doctrine of interceptive subtraction, which permits restitutionary “recovery” even though the plaintiff never possessed the enrichment that the defendant received from a third party, was extended well beyond its traditional scope. Liability can now be imposed contrary to the fundamental principles that inform the action in unjust enrichment. Second, the majority controversially held that the doctrine of juristic reasons, which identifies those transfers that are “unjust” and hence reversible, must pertain to both the defendant’s enrichment and the plaintiff’s corresponding deprivation. While that issue has received too little attention from academics, the court’s approach is unworkable in some situations. Finally, the court continued the practice of awarding restitutionary constructive trusts on the basis of a loose catalogue of considerations and a broad judicial discretion. Notwithstanding the court’s statements to the contrary, Canadian law does not contain a proper, principled test for determining the availability of proprietary restitution.

THE MAGNA SHARE BUYBACK: A PEEK UNDER THE HOOD

Jeffrey MacIntosh, Faculty of Law, University of Toronto

In the most controversial corporate transaction in Canadian history, Magna repurchased all of Frank Stronach’s superior-voting Class B shares, ending Stronach’s rein as Magna’s controlling shareholder. While the reported premium over the Class A shares (identical to the Class H shares save for lesser voting rights) was 1799%, I re-examine the different elements of the consideration paid to Stronach and conclude that the premium was as high as 2675%. I also conduct an event study which discloses that, overall, the transaction generated a market-adjusted aggregate wealth-enhancement of US$4.6B, or 71% of Magna’s pre-transaction market cap. While the announcement that OSC staff would seek a cease trade order produced a material decrease in share price, the OSC’s ultimate approval produced no change, and thus appears to have been anticipated by the market. In contrast, the lower and appeal court decisions approving the transaction produced material increases in price, suggesting that these approvals were not entirely anticipated. When the expert reports relied upon by the independent committee were made public, there was no price change. I conclude that these reports contained no information that was not otherwise available to the market. Finally, I argue that when a transaction is negotiated in the context of a bilateral monopoly in which one party holds all the cards (such as Magna), both regulators and courts should insist on an unassailable procedural and substantive pedigree. Both were lacking in the Magna case.

THE DEATH RATTLE OF THE JOINT VENTURE

Robert Flannigan, College of Law, University of Saskatchewan

The notion that a “joint venture” is recognized by the law as a distinct form appears to have run its course in Canada. The judges that recently have addressed the notion have failed to identify or invent a proper conceptual foundation for it. The notion was never conceptually plausible and that has been confirmed, unintentionally, by the recent judgments.

Comments

  • Shelley McGill, Uber Technologies Inc. v. Heller: The Arbitration Implications
  • Jason MacLean, Can Litigation Close the Transnational Corporate Accountability Gap? Nevsun Resources Ltd v Araya
  • Anthony Duggan, Pawnbrokers, Priorities and the PPSA

Submissions

The editor welcomes submissions to be considered for inclusion in the CBLJ.

Submissions are reviewed on a continuous basis. Following consideration for eligibility, the editor will be in contact with the author.

The CBLJ publishes both articles and commentaries. Articles are typically 10,000-15,000 words in length. Comments are typically 5,000-7,000 words. Comments typically focus on a recent case or legislative development, while articles are usually more wide-ranging.

Contributions should be sent as an email attachment to tony.duggan@utoronto.ca. The following requirements apply:

  • The document should be in Word form to enable editing;
  • It should be 1.5 spaced;
  • It should include an abstract of up to 250 words (articles only);
  • A Table of Contents is not required;
  • The text should comply with the requirements of the CBLJ Style Guide (PDF).

Subscriptions

Canadian Business Law Journal (FULL SERVICE)
A full-service subscription includes three issues, a bound volume consolidating the issues. Each bound volume contains a Table of Contents, Table of Cases and detailed Subject Index. During the year you will receive a total of four issues.

Canadian Business Law Journal  (BOUND ONLY)
A bound only subscription includes a bound volume consolidating the issues. Each bound volume contains a Table of Contents, Table of Cases and detailed Subject Index.

Canadian Business Law Journal  (PARTS ONLY)
A parts only subscription includes three issues.

Canadian Business Law Journal  - INDEX
An Index only subscriptions includes the detailed Subject Index. The Index is an invaluable tool to pinpoint an article or comment that has been published in the Journal.

Inquiries about subscriptions and prices should be directed to the publisher: pamela.corrigan@tr.com.