Problems in Canadian
Business Law
Pol/Soc Sci 3165 6.0A
Tuesdays, 2:30-5:30
pm
Simon Archer
sarcher@torys.com
Introduction PCBL
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Learning objectives
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Basic familiarity with legal concepts that
businesses use and are formed by
Hot topics in business law
Research ability
Critical approaches
After course should be able to understand
basic vocabulary of business law, identify
how to research business law problems.
Introduction cont’d
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Course format
Assigned readings
 Supplementary readings
 Lecture and guest lecture
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• Division of 3-hour timeslot
Multimedia where possible
 Self-directed research
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Introduction cont’d
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Grading scheme
Evaluation format
 Deadlines
 Researching and writing research
papers
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• See handout
Research Papers
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Select topic, narrow topic
Secondary sources first, primary
sources second
 Typical public policy options and
analysis:
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• Conceptual problems (e.g., definitions),
analytical problems (e.g., consistent
reasoning), empirical problems (e.g., how
measured, how common, etc.)
Research papers cont’d
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Single most important “legal” skill
Expectations:
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Argumentative paper
Based on actual research conducted
Your very best effort, not a draft
Review academic policy on plagiarism
USE writing and researching aids and
other resources from York
Writing tips
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Prepare by reading other people’s
opinions on your subject
Use outlines (bullet points) to develop
your paper, don’t write from the top of
your head.
Use plain English: never over-utilize
hypertrophic linguistics, it sounds
pompous and stupid (and many
academics do this to their discredit)
See handout.
Overview of PCBL
Survey course of several areas of
law relating to businesses in Canada
 Each topic requires a course in itself
 Combine introduction to topic with
“special issues” in that topic
 Not a cumulative or iterative
process, choose topics that interest
you from entire curriculum
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Basic contents of course
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Constitutional distinctions
Common law and equity (fall) (private law?)
• Law of of obligations
• Contract, tort, restitution
• Employment contracts, sale of goods
• Equity
• Trusts and fiduciaries
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Regulatory schemes (spring) (public law)
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Business associations
Regulation of competition and trade
Regulation of international trade
Dissolution (bankruptcy and insolvency)
Taxation
Intellectual property law
Contents not covered
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Property law
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Transfer of property, real estate
Bailment
Insurance law
Negotiable instruments
Environmental law
E-business law (cf. contract)
YOU CAN choose these for research
papers
Otto
Today’s lecture
Some theoretical frameworks
 Sources of law
 Vocabulary and distinctions in legal
discourse
 Identify the Willes’ position on
certain issues
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Some characterizations of
“the law”
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Naturalism – law or legal systems have inherent
moral or “natural” elements
Positivism – law and legal systems are
constructed according to social convention
Realism – legal principles not strictly related to
decisions – emphasis on analogical reasoning
Critical legal theory/Critical race theory –
emphasis on analytics and distribution of power
Law-and-economics, law-and-biology: legal
systems and principles as sharing homological
root to other disciplines: economics and biology
Sources of law for public
policy questions
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Why do people cheat on taxes?
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Economist: because there is sufficient
incentive versus risk
Sociologist: because the community condones
it
Psychologist: because behaviour of risk-takers
separates risk from rewards
Bay St. lawyer: define “cheating”? Creative
interpretation of the Income Tax Act.
Further reading for theory
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The Willes’
Doesn’t take a clear position (but hints
of the libertarian, consistent with
mainstream business press?)
 Question: are courts state or non-state
institutions?
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Standard introduction: J.W. Harris,
Legal Philosophies, 2nd ed., 1997.
Bottom line
Be aware many approaches and
forms of legal theory
 Be aware many sources of evidence
that “explain” law, legal systems,
legal behaviours
 Try to choose ones that seem
appropriate to the problem
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Some legal sources
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Three main sources of formal law
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“Black letter law” – “jurisprudence”
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Parliament, legislatures, domestic courts
Constitutions
Statutes
Judicial decision-making (case law)
Treatises, commentaries (from Blackstone to Peter
Hogg)
Secondary sources (see handout)
Legal pluralism (another theoretical approach)
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Individuals and groups part of many normative systems
“Gap” between formal legal principles and behavioural
outcomes
Sources cont’d
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Other sources of institutional
authority (non-state?)
Professional associations – e.g., law
societies – self-regulating by statute
 Industry associations and codes
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• Voluntary codes of conduct
• Standard-setting bodies
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Supra-national instruments
• NAFTA, World Court
The systems
Two parallel legal systems
 Common law system
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All provinces but Québec
 Precursor and filiations with English
legal system
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Civil Code system
Québec, codification of all laws
 cf. Roman law and Napoleonic Code
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Some initial vocabulary
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Common law system
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Origins in English legal system from
communal decision-making processes in the
Middle Ages to modern court system
Judge-made law, case-by-case
Origins in “writs” that could be brought
naming party, cause, and “prayer for relief”
• e.g., quantum meruit, a writ for services rendered
but not paid for, a part of the development of
contract law called quasi-contract, now called
restitution, required specific wording and formula
Vocabulary cont’d
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Common law
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Features doctrine of stare decisis
• judicial decisions as main source, all courts
bound by prior decision on same facts
• SCC not bound
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In reality many outside influences on
development of doctrine
Vocabulary cont’d
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Equity
Initially introduced to “correct” or
“supplement” perceived failures of the
common law
 Employs doctrine and maxims, “equity
follows the law”
 Equitable relief at Court of Chancery
 Fusion of the courts in Canada – 1871
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Substantive areas
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Lex mercatoria (law merchant)
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First transnational business law?
• Cf. relationship to arbitration, specialty courts
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Current incarnation: globalization of the law
of business transactions (law of New York law
firms)
Why no lex laboria?
Factoid: maybe 10 cases in Canada employ
the word “globalization”. Why?
Vocabulary cont’d
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Statute law (public law, regulatory
or administrative state)
Bill – Motion/Readings
 Royal Assent
 Proclamation
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Regulations
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Powers given under statute that avoid
the legislative process when figuring
out how to apply a law.
Vocabulary cont’d
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Judicial review of state in/action
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Claimed priority by “inherent jurisdiction”
Developed out of five perogative writs
• Mandamus, prohibition, certiori, procendendo, quo
warranto, habeus corpus
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Feature of administrative law (law of
regulatory state)
Highly contested/politicized area: brings up
basic questions of jurisdiction and authority in
democratic theory
Public vs. Private
Willes: private is individual (plaintiff
vs. defendant), public is individual
versus state
 What is use of this distinction?
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Substantive vs. procedural
An heuristic distinction
 Usually made to distinguish the right
or obligation from the way it is
enforced
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E.g., right to have a promise kept, but
enforced through rules of civil
procedure
Is there such thing as a right
without a remedy? Is it “law”?
Above the law?
Some questions
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The question of certainty
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Litigation was a response to trial by ordeal.
What’s different?
Do judges follow stare decisis?
Are court proceedings relatively certain ways
of deciding disputes?
Do legal rules or principles have robust
connection to individual or group behaviour?
Are, therefore, courts efficient from a
business perspective?
Addendum: case law
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Elements of most reported cases/how to read a
case:
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Recitation of material facts
Applicable law (statutes or precedent cases)
List of issues to be decided
Analysis of issues as law is applied to facts (ratio
decendi)
Ruling or outcome
In fact, the paper involved in a typical criminal
case is at least a banker’s box of documents, so
reported cases are stylized reports
No case law reading requirements – a waste of
time
Next class
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Setting up the system
Current constitutional arrangements
 The set up: court system in general
 Can we talk about process? Procedure
in general
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Administrative law and regulatory
state
 More Simpsons?
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