Ideas, Interests and Institutions and the History of Canadian Bankruptcy Law 1867-1880

Michael Trebilcock\u27s scholarship has long recognized the importance of ideas, interests, and institutions in shaping policy. Taking the same analytical approach that Michael Trebilcock and Ninette Kelley use in their ground-breaking book on the history of Canadian immigration, which focuses on economic interests, contested ideas, and institutions, this article examines the Canadian historical experience to gain an understanding of the ideas, interests, and institutions that have been influential in shaping the evolution of Canadian bankruptcy law. Specifically, the article addresses the rise of Canadian bankruptcy legislation in the early post-Confederation period and its ultimate repeal in 1880. Bankruptcy law represented both a conflict of ideas over the morality of the bankruptcy discharge and a distinct divergence of interests between local and distant creditors over the advantages and disadvantages of a pro rata distribution. Institutional factors such as federalism, courts, and the emerging regulatory state also had an independent effect

Repeat Bankruptcies and the Integrity of the Canadian Bankruptcy Process

One of the often-cited purposes of bankruptcy law is to permit the rehabilitationof the debtor as a citizen unfetteredby past debts. The bankruptcy regime thus allows an honest but unfortunate debtor toobtain a fresh start through the discharge. However, Canadian bankruptcy law has long taken the position that a repeat bankruptcy will preclude an order of an absolute discharge. The different treatment of repeat bankrupts suggests that there are other policy objectives at play beyond rehabilitation. While the court must consider the interests of the debtor and creditors in a contested discharge hearing an equally important consideration is the protection of the integrity of the bankruptcy system. Where there are repeatbankruptciesthe court\u27sfocusshiftsfrom rehabilitationof the debtor to the integrity of the bankruptcy regime, the protection of creditorsand the public. These traditional considerations have been altered by recent amendments to the Bankruptcy and Insolvency Act. These amend- ments permit a second-time bankrupt to obtain an automaticdischarge after 24 months (if no surplus income and no objection) or after 36 months (if surplus income and no objection). This articleconsiders how the Canadianbankruptcy regime deals with second-,third-,fourth- andfifth-time bankruptcies. The article also examines whether mandatory counselling has had any impact on reducing repeat bankruptcies

The Wellness Doctrines for Law Students & Young Lawyers, by Jerome Doraisamy

Mental health issues are pervasive. According to the Mental Health Commission of Canada, in any year, “one in five people in Canada experiences a mental health problem or illness.” The impact of mental illness, writes Governor General David Johnston, “is felt by family, friends, and colleagues—by nearly every Canadian—in some way.” But are lawyers and law students more likely to be personally affected by mental health issues? Jerome Doraisamy’s The Wellness Doctrines tackles the subject of mental health and wellness for young lawyers and law students. The Law Society of Upper Canada’s 2017 Mental Health Strategy Task Force Final Report concludes that “legal professionals may be at an even higher risk than the general population of experiencing career and life challenges and struggles with mental illness and addictions.

Equitable subordination redux? Section 183 of the Bankruptcy and Insolvency Act and respecting the \u27legislative will\u27 of Parliament

The Supreme Court of Canada has yet to rule on whether the American doctrine of equitable subordination is part of Canadian law. In Re US Steel, the Ontario Court of Appeal suggested in obiter that section 183 of the Bankruptcy and Insolvency Act (BIA) conferred upon courts the power to equitably subordinate a claim. This article focuses on the specific point of whether section 183 of the BIA provides the court jurisdiction in equity to subordinate a claim and alter the statutory priority scheme. Equitable jurisdiction found in section 183 of the BIA does not represent a broad power to reorder statutory priorities based on notions of fairness and good conscience. The section 183 jurisprudence simply does not support the obiter statement in US Steel. In interpreting section 183, Canadian courts have relied upon traditional doctrines of equity. To allow equitable subordination under section 183 would be an attempt to ignore the legislative will of Parliament and the BIA priority regime. There may be no need to import equitable subordination as there are existing provisions in the BIA which subordinate claims of the type often considered under the American doctrine of equitable subordination. Canadian law also effectively deals with creditor and insider misconduct through the oppression remedy and the new statutory duty of good faith

Complexity confers stability: Climate variability, vegetation response and sand transport on longitudinal sand dunes in Australia’s deserts

Abstract The relationship between antecedent precipitation, vegetation cover and sand movement on sand dunes in the Simpson and Strzelecki Deserts was investigated by repeated (up to four) surveys of dune crest plots (≈25 × 25 m) over a drought cycle (2002–2012) in both winter (low wind) and spring (high wind). Vegetation varied dramatically between surveys on vegetated and active dune crests. Indices of sand movement had significant correlations with vegetation cover: the depth of loose sand has a strong inverse relationship with crust (cyanobacterial and/or physical) while the area covered by ripples has a strong inverse relationship with the areal cover of vascular plants. However, the relationship between antecedent rainfall and vegetation cover was found to be complex. We tentatively identify two thresholds; (1) >10 mm of rainfall in the preceding 90 days leads to rapid and near total cover of crust and/or small plants <50 cm tall, and (2) >400 mm of rainfall in the preceding three years leads to higher cover of persistent and longer-lived plants >50 cm tall. These thresholds were used to predict days of low vegetation cover on dune crests. The combination of seasonality of predicted bare-crest days, potential sand drift and resultant sand drift direction explains observed patterns of sand drift on these dunes. The complex vegetation and highly variable rainfall regime confer meta-stability on the dunes through the range of responses to different intervals of antecedent rainfall and non-linear growth responses. This suggests that the geomorphic response of dunes to climate variation is complex and non-linear.Abstract The relationship between antecedent precipitation, vegetation cover and sand movement on sand dunes in the Simpson and Strzelecki Deserts was investigated by repeated (up to four) surveys of dune crest plots (≈25 × 25 m) over a drought cycle (2002–2012) in both winter (low wind) and spring (high wind). Vegetation varied dramatically between surveys on vegetated and active dune crests. Indices of sand movement had significant correlations with vegetation cover: the depth of loose sand has a strong inverse relationship with crust (cyanobacterial and/or physical) while the area covered by ripples has a strong inverse relationship with the areal cover of vascular plants. However, the relationship between antecedent rainfall and vegetation cover was found to be complex. We tentatively identify two thresholds; (1) >10 mm of rainfall in the preceding 90 days leads to rapid and near total cover of crust and/or small plants <50 cm tall, and (2) >400 mm of rainfall in the preceding three years leads to higher cover of persistent and longer-lived plants >50 cm tall. These thresholds were used to predict days of low vegetation cover on dune crests. The combination of seasonality of predicted bare-crest days, potential sand drift and resultant sand drift direction explains observed patterns of sand drift on these dunes. The complex vegetation and highly variable rainfall regime confer meta-stability on the dunes through the range of responses to different intervals of antecedent rainfall and non-linear growth responses. This suggests that the geomorphic response of dunes to climate variation is complex and non-linear