University of Toronto Law School Faculty Blog

Prof. Ed Morgan: "An insidious cultural campaign"

This commentary by Prof. Ed Morgan was first published in the National Post on July 2, 2009.

The Dead Sea Scrolls, which are being exhibited this week at the Royal Ontario Museum (ROM), have survived time, weather, sand--and now the political storm caused by protests at their being toured by the Israel Museum, which houses the scrolls in Jerusalem.

Opponents of the exhibit include the Palestinian Minister of Tourism and Canadian solidarity groups supporting the Palestinian cause. They accuse the Israel Museum of having taken the scrolls from the Jordanian Department of Antiquities upon Israel's occupation of East Jerusalem and the West Bank in 1967. Israel's actions are alleged to be contrary to international conventions protecting cultural artifacts and prohibiting their removal.

The ROM is right to stare down the protests.

Michael Trebilcock - "Wind power is a complete disaster"

This commentary was first published in the Financial Post on April 9, 2009.

There is no evidence that industrial wind power is likely to have a significant impact on carbon emissions. The European experience is instructive. Denmark, the world's most wind-intensive nation, with more than 6,000 turbines generating 19% of its electricity, has yet to close a single fossil-fuel plant. It requires 50% more coal-generated electricity to cover wind power's unpredictability, and pollution and carbon dioxide emissions have risen (by 36% in 2006 alone).

Flemming Nissen, the head of development at West Danish generating company ELSAM (one of Denmark's largest energy utilities) tells us that "wind turbines do not reduce carbon dioxide emissions." The German experience is no different. Der Spiegel reports that "Germany's CO2 emissions haven't been reduced by even a single gram," and additional coal-and gas-fired plants have been constructed to ensure reliable delivery.

Ed Morgan - "Taking a Buy Canadian route would be a legal sell-out"

This article was first published in the Globe and Mail on February 12, 2009.

In one of his more dramatic Question Period performances, the federal NDP Leader announced last week that the “United States has had a Buy American Act for 76 years,” and that “it's perfectly legal.” He then followed up: “Can the Prime Minister tell us what's wrong with a Buy Canadian policy as permitted under continental and global trade rules?”

The question was prompted by the new protectionist proviso attached to Congress's economic stimulus bill. It is, however, premised on a faulty foundation.

Webcast of roundtable on the creation of a national securities regulator

On January 30, 2009, the Faculty of Law hosted a roundtable on the creation of a national securities regulator and the report of the Expert Panel on Securities Regulation, featuring Profs. Anita Anand and Jeffrey MacIntosh, as well as experts Jeremy Fraiberg and Peter Hogg. The webcast of the event is available on the Faculty of Law website.

• Click here to see the event description and speaker biographies (with a link to the webcast)
• Click here to go directly to the webcast

Anita Anand - "Backing the BCE Board"

Today, the Supreme Court of Canada released its long-awaited judgment in the BCE case.  The Supreme Court had previously indicated that it would overturn the decision of the Quebec Court of Appeal but today we found out the bases on which it did so.  We also found out the current thinking from the Court on directors duties.  The gist of the Court’s decision is two fold.  First, it upheld the principle that the board owes its fiduciary duty to the corporation not to any one particular stakeholder group.  In addition, the Court held that there is a distinction between the legal considerations applicable to the oppression remedy and CBCA arrangements that the Quebec Court of Appeal had overlooked.  The Supreme Court held true to the wording of the corporate statute with perhaps one exception: it introduced the concept of the corporation as a “responsible corporate citizen”, thereby raising questions about what this term means in terms of directors’ duties generally.

As we know, the central fact of the case was that BCE proposed an arrangement in which certain bondholders stood to be disadvantaged because the level of BCE's debt would be increased.  The higher level of debt would in turn decrease the value of the existing debt as well as occasion a loss of investment grade status. The QCA held that the bondholders' interests must be considered when the board is discharging its fiduciary duties.  But in reaching its decision, the QCA pushed the concept of fiduciary duties into new territory, a move that stretched existing law.  In particular, the QCA conceived directors' fiduciary duties extremely broadly, criticizing the BCE board for not considering how the plan of arrangement at issue might be unfair to bondholders.

Lorne Sossin and Lorraine Weinrib - "Canada's constitutional 'black box'"

In a commentary in the National Post, Professors Lorraine Weinrib and Lorne Sossin argue that the Governor-General's decision-making should be public and transparent in situations such as the recent request by the Prime Minister to prorogue Parliament ("Canada's constitutional 'black box'," December 11, 2008).

Last Thursday, Governor-General Michaelle Jean granted a request from Prime Minister Stephen Harper to prorogue Parliament until late-January. She thus protected the Conservative government from a confidence vote that would have likely toppled the minority government, and perhaps prompted her to invite a Liberal-NDP coalition, supported by the Bloc Quebecois, to form a government. We would like to be in a position to share with you the arguments that the Prime Minister submitted to the Governor-General and her reasons for accepting them.

But here is the problem: We do not know the full range of arguments that the Prime Minister put forward. Nor do we know the basis of the G-G's decision. We cannot confirm whether the Ms. Jean placed any conditions or qualifications on Mr. Harper's powers during the period in which Parliament will not meet. We do not know if she indicated how she would proceed if the government falls in late-January when Parliament meets. We have only this terse statement, offered by Prime Minister Harper: "Following my advice, the Governor-General has agreed to prorogue Parliament."

David Schneiderman - "Prorogation, Dissolution, and the Vicissitudes of Minority Government"

There is a disturbing trend in much of the commentary precipitated by the events of the last two weeks culminating in Governor General Michaël Jean’s decision to prorogue Parliament. Much of the commentary rightly notes that the decision to prorogue, and even to dissolve Parliament, is a prerogative and, therefore, a matter of discretion that rests solely with the Governor General. Most commentators appear to agree that this discretion enables the Governor General to actively intervene in Canadian political life, the only question remaining is in what direction. At that point, political preferences usually enter into the discussion and determine the way in which that discretion should be exercised.

Yet it should be apparent that the Governor General is expected to steer clear of political controversies and so should exercise her discretion in ways that minimize her meddling in Canadian Parliamentary affairs. The Governor General should be guided less by the dictates of political partisanship, then, and more by the principles of democracy and responsible government. The Governor General’s actions should be guided principally by considerations that do the utmost to respect the will of Parliament and, ultimately, the people. It is Parliament which, conveniently for the Governor General, is the barometer of the people’s will as expressed periodically through the electoral process.

Peter Russell - Lessons From Our Most Recent “Constitutional Crisis”

On Friday, Dec. 5, 2008 the University of Toronto Faculty of Law hosted a panel discussion about the Governor-General's decision to prorogue parliament. The following is a summary of the remarks made by panelist Peter Russell.

Constitutional conventions
This has been a period of great uncertainty about some of the “unwritten” conventions of our constitution. Most of the principles and rules about operating our system of parliamentary democracy take this form. In the final analysis what these principles and rules are depends on all of us – on the people – so it is certainly good to see you who are here today and so many others concerned about these issues.

Recent events have established that the GG can say “NO”
There should now be no doubt that the Governor General had the legal power under our constitution to refuse the request Mr. Harper made yesterday to prorogue parliament. Our parliament is made up of three components: The House of Commons, the Senate and the Crown. Normally the Crown’s role is entirely formal and ceremonial, and the Crown’s powers are exercised on the advice of the Prime Minister and the government he leads. However, the Crown in a parliamentary democracy reserves the power to act independently, if need be, to protect the most fundamental principles and the integrity of parliamentary government. In that sense the Crown can act as a check and balance on Prime Ministers and the governments they lead. There is similar role for appointed or indirectly elected presidents in republican parliamentary systems.

Lorne Sossin - "Was the Governor General's Decision to Prorogue Parliament Constitutional?"

On Friday, Dec. 5, 2008 the University of Toronto Faculty of Law hosted a panel discussion about the Governor-General's decision to prorogue parliament. The following is a summary of the remarks made by panelist Lorne Sossin.

In light of the presentations, questions and comments on the panel, there are three broad constitutional principles imperiled by the recent decision by the Governor General to prorogue Parliament and its fallout:

First, the principle of transparency and accountability is under siege. The Gov. Gen. heard a request to prorogue Parliament in camera. We have no idea what was said, what factors she considered (Bob Rae wondered, for example, whether she attached any weight to the signed letter from the opposition parties indicating they had lost confidence in the Conservative Government), or the reasons underlying her decision to grant the Prime Minister's request. In the absence of any explanation of the decision, commentators have read much meaning into the tea leaves available - for example, Peter Russell took the length of the meeting (over two hours) as evidence that the Gov. Gen. recognized she had the discretion to refuse the Prime Minister's request. While experts may be able to connect the dots of what we know, It seems completely out of step with Canada's constitutional development to have crucial public decisions which go to the integrity of democratic legitimacy in Canada, rendered behind closed doors with no reasons whatsoever.

David Cameron - "Constitutional Crisis or Democracy in Action"

On Friday, Dec. 5, 2008 the University of Toronto Faculty of Law hosted a panel discussion about the Governor-General's decision to prorogue parliament. The following is a summary of the remarks made by panelist David Cameron.

I’ll be brief. I see no reason to take more time than Stephen Harper did in his weirdly pointless address to the nation on Wednesday night.

I will make four points, none of them on topic. When I initially agreed to speak I was told the subject would be something like “constitutional crisis or democracy in action?”, to which I probably would have answered both.

But as the planning for the session evolved, and events proceeded, the topic morphed into “Was the Governor General’s Decision to Prorogue Parliament Constitutional?” or something like that. To which I would probably answer yes and no.

However, since I expect my eminent legal colleagues to cover that topic like a blanket, I thought I would turn to something else, to some observations on the politics and implications of what the country is going through.