Subscribe by RSS

Comprehensive Draft Federal Securities Act Released Today

Anita Anand
Wednesday, May 26, 2010

The federal government today released a draft securities act filed in support of its constitutional reference to regulate capital markets activity.  The draft act is largely based on provincial securities legislation: for example, the provisions relating to disclosure of information, prospectus offerings and the public interest power remain generally the same.  However, the act contains a number of new provisions which together appear to be improvements over existing law.

To begin, the act contains a new purposes section. In addition to protecting investors and fostering fair, efficient and competitive capital markets, the new Canadian Securities Regulatory Authority must contribute “to the integrity and stability of the financial system”.  Expanding the purposes section in this way is sound. The financial meltdown demonstrated that systemic risks can arise from increasingly complex products (such as derivatives) and highly leveraged institutions (such as hedge funds) that distribute these products. Contributing to the stability of the financial system is thus a pertinent goal of securities regulation.

Watch visitor Prof. Edward Altman and panel discuss the global credit meltdown

Thursday, April 1, 2010

On March 3, 2010, the Faculty of Law hosted a discussion on "Current Conditions and Outlook in Global Credit Markets." Professor Edward Altman, of the Stern School of Business, New York University, gave a presentation, followed by a panel discussion with international and Toronto specialists in the field.

You can watch the entire event online, and read Prof. Altman's presentation.

Prof. Altman was also interviewed on BNN television about the current situation in global credit markets.

 

Khadr and Prerogative Power

David Schneiderman
Thursday, April 1, 2010

(from Spring 2010 Rights Review 3:1)

What one might call “older” constitutional law has been very much in the news lately with the two controversial prorogations by Prime Minister Harper; the Government’s failure to disclose documents relating to Afghan detainees being released by Canadians to face torture; and the Supreme Court of Canada failing to provide a meaningful remedy for the ongoing breach of Omar Khadr’s Charter rights. Khadr, a Canadian citizen, has been held at Guantanamo Bay since 2002 on terrorism and related charges after being captured on Afghan soil. The Court found a serious breach of Mr. Khadr’s Charter rights yet chose not to tread into the realm of foreign affairs by directing the Government of Canada to seek his release from US custody. Though I focus solely here on the Khadr case, the thread common to all of these events is that they all concern exercises of the royal prerogative.

What is the royal prerogative? It is the unfettered discretion that once ran the machinery of government – Charles I described it as absolute and beyond reproach and was later beheaded – of which little remains. Despite the whittling away by statute and practice, what remains of the Crown prerogative is, nevertheless, significant.

Tax Law on Poker Winnings: Read It and Weep

Benjamin Alarie
Wednesday, March 24, 2010

NB: from the Globe and Mail

More and more Canadians are earning tidy sums playing poker on off-shore poker websites. They often practise incessantly, refine their skills using coaches and software programs, and participate in online forums dedicated to strategy. Many of these players spend 30 hours a week online playing against opponents from around the world.

At this time of year, winning poker players are reminded of a confounding tax position. Most Canadians believe, incorrectly, that lottery and gambling winnings are not subject to income tax. The conventional view is correct in that every budding poker player starts out playing casually and with “after tax” dollars. If a casual player wins, he wins without tax consequences; if he loses, he loses without tax consequences. At some point, however, under Canadian law, the tax consequences change for winning players.

Canadian Educators Need Education on Hate Speech

Ed Morgan
Tuesday, March 23, 2010

This commentary was first published in the National Post on March 22, 2010.

Educate yourself about Canada’s hate laws, the Provost of the University of Ottawa told conservative pundit Ann Coulter in advance of her visit. Campus authorities apparently fear Coulter’s reputation for provocative views. They would remind her that unlike in the United States, hate speech is outlawed here and our defamation laws are strictly enforced.

Well, there’s nothing wrong with education, but as long as we’re encouraging it for our guests we might also think about educating ourselves.

As all of our university officials know, the willful promotion of hatred against an identifiable group is a crime. The problem is that the offence – or, rather, the specter of the offence – is used more as a threat to silence speakers than as a basis for actual prosecutions. The threat is easy to invoke and is often effective in chilling the very debate that campus life is supposed to foster. Our universities encourage diversity in their student and faculty bodies, but as the Coulter case demonstrates, they often bridle at too much diversity of opinion.

How to Tame a Prerogative

David Schneiderman
Monday, March 15, 2010

From The Globe and Mail (March 10, 2010)

Opposition efforts to get at the facts about Afghan detainee abuse appear not to have entirely abated, despite former Supreme Court of Canada justice Frank Iacobucci's appointment to advise the government about releasing documents. Prime Minister Stephen Harper's constitutional footwork certainly did not do the trick. Prorogation simply will not erase the stain of Canadians handing over Afghan detainees to face torture, if accusations are true. The break also should not allow him to escape the House's motion calling for uncensored documents relating to the abuse allegations.

Up until the day before the motion in December, the government side claimed that a variety of statutes legally barred it from releasing documents that threatened national security. It was only then that Carolyn Kobernick, assistant deputy minister in the Department of Justice, acknowledged that there was no statutory basis for refusing to deliver unredacted documents.

Instead, Ms. Kobernick claimed that the government, when making decisions regarding disclosure, would be guided by “the values underlying Parliament's intention in these provisions” – namely, “to protect the national security of Canada from harm by the unauthorized disclosure of sensitive information.” So there was no legal bar to the production of unredacted documents, only a discretion guided by values underlying the law.

The Linguistic and Trust Functions of Trademarks: A New Paper

Ariel Katz
Friday, January 22, 2010

Modern trademark scholarship and jurisprudence view trademark law as an institution aimed at improving the amount and quality of information available in the marketplace.  Under this paradigm—known as the search-costs theory of trademarks—trademarks are socially beneficial because they reduce consumer search costs, and as a consequence provide producers with an incentive to maintain their goods and services at defined and persistent qualities.

Working within this paradigm, my recent paper refines the search-cost theory of trademarks.  It highlights an important point whose significance hitherto has largely escaped notice, namely that reducing search costs and providing incentives to maintain quality are distinct functions, although they are related.  The paper first develops a distinction between two functions: the linguistic and the trust functions of trademarks.  It then shows how recognizing their distinct nature enriches our understanding of trademark law and provides a better framework for evaluating the normative strength of various trademark rules and doctrines.  The paper demonstrates how different rules can be regarded as normatively stronger or weaker depending on the degree to which they are compatible with both, one, or neither of these functions.  

Should Securities Regulators Care about Systemic Risk?

Anita Anand
Wednesday, January 20, 2010

One of the implications of the global financial meltdown is a renewed focus on the purposes of securities regulation and whether these purposes should include considerations relating to systemic risk. Monitoring systemic risk has traditionally been within the realm of financial institution (i.e. prudential) regulation, not securities law. Yet the line between prudential regulation and securities law is becoming increasingly blurred given the complexity of financial markets, a complexity characterized by the growth of private markets in which derivative securities are bundled and sold by a variety of institutions. This evolution in financial markets means that securities regulators now need to care about systemic risk. Indeed, monitoring systemic risk should be a principle that is integrated into the securities regulatory regime.

The Move Towards a National Securities Regulator

Anita Anand
Tuesday, January 19, 2010

Profs. Anita Anand and Andrew Green have posted a new article on SSRN titled "Why is this Taking so Long? The Move Towards a National Securities Regulator."

Abstract:

Game theoretical analysis can be useful in contexts such as securities regulation, where multiple decision makers (i.e. securities regulatory authorities or commissions) act unilaterally but can also potentially reap benefits from cooperation. We deploy several models in seeking to render more transparent the strategies and payoffs that motivate jurisdictions to support or resist the introduction of a national securities regulator for Canada. Our analysis suggests that consensus has not been reached regarding a national regulator not only because of a lack of cooperation but also because of a lack of coordination. Indeed, it seems plausible both that provinces recognize the benefit of adopting a common standardized regulatory model; and that the source of disagreement surrounds the precise regulatory content of that common standardized model. This paper explores the implications of this insight.

The article will be published in the University of Toronto Law Journal, Vol. 60, No. 2, April 2010

 

Faculty Blog
Subscribe by RSS