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Copthorne Holdings Panel Discussion, Thursday, January 27 at 6 p.m.

Benjamin Alarie
Wednesday, January 19, 2011

The Supreme Court of Canada will be hearing Copthorne Holdings Ltd. v. Her Majesty the Queen this coming Friday, January 21 at 9:30 a.m.  The appeal is concerned with interpreting various elements of the "general anti-avoidance rule" ("GAAR") of section 245 of the Income Tax Act.  

To seize the moment presented by the Copthorne Holdings appeal, the Tax Law Society at the Faculty of Law has arranged for an expert panel discussion of the issues raised by the appeal and the implications of the case for the GAAR more generally. The panel discussion will be held on Thursday, January 27 at 6:00 p.m. in the Bennett Lecture Hall at the University of Toronto Faculty of Law, which is located at 78 Queen's Park.

I will introduce the panel and provide some introductory background about the transactions and the judgment at the Federal Court of Appeal giving rise to the appeal to the Supreme Court of Canada.  Following this backgrounder, the discussion will be turned over to the panel members, each of whom will be given 10 minutes to speak, after which there will be an opportunity for questions from the floor. The distinguished panelists include:

Waiting for Godot: Foreign Aid in Haiti

Mariana Mota Prado
Wednesday, January 12, 2011

Haiti is currently in the headlines again due to the ravages of a cholera epidemic that has hit citizens still reeling from a humanitarian disaster brought on by last year's earthquake, and has been compounded by hurricanes, floods, a problematic election and general unrest. Some Haitians have been pointing their fingers at the UN as the author of their latest misfortune, blaming foreign aid workers or peacekeepers for bringing cholera with them. At the same time, close to the scene, humanitarian workers, staff, doctors and nurses have been calling for more help from abroad as they survey the miserable conditions that Haitian citizens are forced to deal with after they have been "helped".

Frustration and anger are surely heightened by the fact that millions (or billions) of dollars of funding pledged in support of reconstruction is still sitting in the hands of foreign aid entities. One cannot help but think of the famous play by Beckett, Waiting for Godot. In the play, the two main characters try to entertain themselves while waiting for Godot, an acquaintance that never shows up. Despite agreeing at the end that they will no longer wait, neither of them leaves. Similarly, Haiti seems to be expectantly waiting for foreign aid, without knowing when and whether it will come.  

Systemic Fallacy

Jeffrey MacIntosh
Friday, December 10, 2010

The following first appeared in the National Post on November 23, 2010.

SYSTEMIC FALLACY

A national regulator wouldn’t have prevented the credit crisis

In its legal argument filed with the Quebec Court of Appeal, the federal government argues that securities regulation can and should address systemic (or economy-wide) risk — and that a national regulator would be better positioned to do this.

This hobgoblin is very much a latter-day addendum to the traditional apologia for securities regulation, which has always focused on investor protection and securities-market efficiency. What gave this new addition legs? Very simply, the credit crisis. The feds’ factum of legal argument states that “reducing systemic risk is an objective more informed by current experience.” Placing the blame for the economic downturn squarely on the shoulders of the securities regulators, the factum states that the crisis “illustrated a gap in regulatory oversight.” Moreover, “the dangers of systemic risk underscore the need for national, if not international regulation.” A national regulator, say the feds, would be better able to co-ordinate its activities with other federal institutions, such as the Bank of Canada and the Office of the Superintendent of Financial Institutions.

The Houdini Gambit

Jeffrey MacIntosh
Wednesday, November 24, 2010

This commentary by Prof. Jeffrey MacIntosh was first published in the Financial Post on November 23, 2010.

Do the feds have the constitutional jurisdiction to create a national securities regulator? Not surprisingly, the federal government thinks so. Also not surprisingly, the government of Quebec does not. Quebec has referred the matter to the Quebec Court of Appeal for a decision (just as the feds have sent a reference to the Supreme Court of Canada, but the Quebec court gets the first kick at the can).

Ottawa’s legal case, in a recently filed factum with the Quebec Court of Appeal, totters on the brink of schizophrenia. At the outset, the factum invites the court to conclude that the issue of constitutionality “does not involve a performance assessment of the existing 13 provincial and territorial regulators.” But, mirabile dictu, much of the balance of the argument is sedulously devoted to demonstrating the manifest superiority of federal legislation. Go figure.

Two New Papers

Mohammad Fadel
Tuesday, November 23, 2010

I have recently posted two new papers to my ssrn page.  The first, titled “Is Historicism a Viable Strategy for Islamic Legal Reform?

Selective Use of Data in the Debate About a National Securities Regulator for Canada: A Comment on The Lortie Paper

Anita Anand
Friday, October 22, 2010

1.   Introduction

Pierre’s Lortie’s recent paper[1] seeks to discredit federal reform initiatives to create a national securities commission by making the following claims:  Canadian capital markets rank above those in other countries as various international bodies suggest; the empirical evidence does not exist to support such a reform; and, the current passport system that operates in tandem with the Canadian Securities Administrators “constitutes[s] an example of Canadian federalism at its best” and change should not be implemented without compelling reasons.[2] Lortie suggests that Canadian investors, junior issuers, and the fairness and efficiency of Canadian capital markets will not benefit under a national securities regulator. Rather, the status quo is superior as it has allowed Canada’s financial system to outperform those in other countries.

Hirschl Publishes New Book: "Constitutional Theocracy"

Ran Hirschl
Thursday, September 30, 2010

Prof. Ran Hirschl has published a new book, Constitutional Theocracy (Harvard University Press, 2010).

From the publisher:

At the intersection of two sweeping global trends - the rise of popular support for principles of theocratic governance, and the spread of constitutionalism and judicial review - a new legal order has emerged: constitutional theocracy. It enshrines religion and its interlocutors as "a" or "the" source of legislation, and at the same time adheres to core ideals and practices of modern constitutionalism. A unique hybrid of apparently conflicting worldviews, values, and interests, constitutional theocracies thus offer an ideal setting-a "living laboratory" as it were-for studying constitutional law as a form of politics by other means. In this book, Ran Hirschl combines insights from legal theory, economics, theology, and political sociology with a rigorous comparative analysis of religion-and-state jurisprudence from dozens of countries worldwide to explore the evolving role of constitutional law and courts in a non-secularist world.

Mandatory Census Doesn't Raise Privacy Concerns, Abolishing it Does

Trudo Lemmens
Wednesday, September 1, 2010

Is privacy really at the heart of mandatory census change?

(This commentary first appeared in a slightly different version in the Hill Times on August 23, 2010) 

Big policy decisions are always a balancing act. Nothing unusual thus when the government invokes one interest—privacy--to justify the cancellation of the mandatory long census, which serves another interest--the gathering of reliable information about Canadian citizens for the purpose of good policy making. The increased promotion of privacy could arguably outweigh the negative impact of this decision, which critics say will affect the quality of the data of Statistics Canada.

A crucial claim which has, however, not really been questioned is whether this is indeed about privacy. Invoking privacy in the context of the collection of personal data seems intuitively appealing. Yet, using it to justify the abolishing of a mandatory form reflects a fundamental misunderstanding of the concept. Worse, the proposed changes to the government census do not diminish but rather increase privacy concerns.

taxwiki.ca

Benjamin Alarie
Saturday, July 17, 2010

An important experiment is beginning in documenting the administration and content of Canadian income tax law.  The experiment is called taxwiki.ca.  What is this experiment, and why is it necessary?

The Office of the Auditor General recently pointed out that there is insufficient accurate guidance being provided to Canadian taxpayers by the Canada Revenue Agency (CRA).  To support this claim, the Auditor General's report highlighted that the interpretation bulletins issued by the CRA are accessed frequently by Canadians (1.5 million times from April 2008 to March 2009) and that, “Most tax auditors and many tax practitioners told us that they begin their research into a legislative interpretation question with Income Tax Interpretation Bulletins as their source of guidance.” 

Obviously, then, the bulletins are an important source of tax information for taxpayers and their advisers.

An Open Letter to Benjamin Netanyahu: Please Stop Whining

Ariel Katz
Friday, June 4, 2010

Benjamin Netanyahu, I read your Gaza Flotilla speech you made the other day in Jerusalem. It was a bold speech, defiant. You explained that Israel has had no choice, that it acted in self defence—it always does—and you called on the world, accusing it of hypocrisy. I read it, and it saddened me deeply. Well, you may be right about the hypocrisy, but this is hardly new. Hypocrisy has always been, it will likely remain an integral feature of international relations (and surely we have had a fair share of it too). You tried to assertive, vindicating our nation's rights, but frankly, Benjamin Netanyahu, you were just whining.

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