A two page position papers for each of the issues outlined below. So please make sure that the position paper is least two pages for each of the three issues stated below. Your writing can be arguing for either position, for or against. Your score will be determined by how persuasive you are in your analysis, how well you demonstrate your understanding of the particular issues and how clearly your arguments are presented. In your position papers, citations to external sources are welcome, but are not required in order to achieve maximum scores.
Issue 1: The Role of the Supreme Court in Canadian Law and Society Background: The Supreme Court of Canada has played an increasingly important role in shaping Canadian law and society since the implementation of the Charter in 1982. Many have argued that the Supreme Court, as an appointed body that is not accountable to the public, has overstepped its appropriate boundaries and improperly usurped the elected role of the parliament and provincial legislatures as the prime sources of public policy. In particular, people point to the self-determined power of “reading into” the constitution as a concerning development for unelected judges. Others, meanwhile, have argued that the Supreme Court is fully justified in the interventionist policies that it has adopted, and serves a critical role in protecting minorities and disenfranchised individuals from tyranny of the majority, and in serving as a critical check on the power of the government in a liberal democracy.
The Question: BE IT RESOLVED that the Supreme Court of Canada has gone too far in intervening in Canadian law and public policy since the adoption of the Charter in 1982, and the SCC should, in the future, exhibit greater deference to the will of the Canadian people as expressed through the Canadian Parliament and the provincial legislatures.
Issue 2: The “Organizing Principle of Good Faith” in Contracts Background: The unanimous decision of the Supreme Court of Canada in Bhasin v. Hrynew, (2014) SCC 71 identified good faith as an “organizing principle” of the law of contract and created a new duty of honest contractual performance into Canadian contract law. The law before Bhasin, for most Canadian contracts, was that there was no general duty to perform contracts in good faith (except in narrow cases, for example, in contracts of insurance). As such, 5 Bhasin represented an important change in how parties are expected by Canadian courts to perform their contractual duties. As such, this is clearly an example of a situation where the SCC has abandoned legal precedent in favour of creating new principles of law they believed were appropriate. This decision has been criticized by some legal commentators for bringing too much uncertainty into contract analysis and for leaving a lack of clarity as to what the organizing principle of good faith entails. The Supreme Court attempted to clarify its position recently in CM Callow Inc. v Zollinger (2020) SCC 45, but that case was decided by a 5-3 split of the court and has been criticized for creating further uncertainty on the scope of the duty of the organizing principle in good faith.
The Question: BE IT RESOLVED that the Supreme Court of Canada’s decision in Bhasin v. Hrynew was correctly decided and resulted in an improvement to the previous common law position that refused to recognize any implied duty of good faith in most contracts.
Issue 3: Shareholder Primacy vs. Stakeholder Primacy Background: The Supreme Court of Canada’ decisions in the two seminal cases of Peoples Department Stores Inc. (Trustee) v. Wise (2004) SCC 461 and BCE Inc. vs. 1976 Debentureholders (2008) SCC 69 collectively turned the foundations of corporate law in Canada on its head. Essentially, these decisions departed from 70 years of legal precedence in Canada (during which shareholder primacy was the dominant legal theory in terms of the question “to whom is the fiduciary duty owed in a corporation”) and clearly established stakeholder primacy as the prevailing law. This decision has been subject to significant legal criticism based on the allegation that they create significant uncertainty in assessing whether officers and directors have discharged their fiduciary obligations when there are so many potential competing interests to consider under stakeholder theory.
The Question: BE IT RESOLVED that the Supreme Court of Canada’s decisions in the People’s and BCE cases was correctly decided and that stakeholder primacy is the appropriate foundation for determining to whom fiduciary obligations are owed in Canada by corporate fiduciaries.
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