Cristie Ford

This thesis explores the Doré/Loyola framework in light of the recent Supreme Court of Canada decision, Law Society of British Columbia v. Trinity Western University (“LSBC v. TWU”). Using primarily traditional legal research, along with critical legal, interdisciplinary, and social-legal elements, this research critiques the Doré/Loyola framework and advocates for stronger protection of minority rights in administrative justice. While the Doré/Loyola framework purports to provide oversight to administrative decisions to ensure they do not run roughshod over the Charter, regrettably, as demonstrated by LSBC v. TWU, the framework does not provide this necessary protection. Instead, it expands the scope of discretion available to both administrators and judges through the Charter values framework. Further, the framework imagines a conflict of rights, which is both an incorrect and unhelpful formulation. Lastly, statutory objectives can too easily outweigh Charter rights, as Doré makes it possible to read a statutory objective as incorporating a Charter value or right. Recognition of other competing Charter rights, which are not recognized in the statutory language, is then compromised. This is particularly disadvantageous to minority rights as it leaves them subject to the changing views of the majority in society. In LSBC v. TWU, this risk was heightened through the use of a referendum which required voters to choose between the rights of two minority groups and give priority to one over the other. In order to ameliorate concerns with the Doré/Loyola framework, reasonable accommodation needs to be returned to the analysis. Instead of focusing primarily on how to balance statutory objectives and Charter protections, administrative decision-makers should be encouraged to find creative options to accommodate Charter protections where possible. In this way, the promises of the Charter, including minority rights, will be better preserved in administrative justice. This paper is an important contribution to emerging research on the intersection of the Charter and administrative justice. The Doré/Loyola framework is a recent addition to administrative law, and LSBC v. TWU was released within a year of writing this thesis. Consequently, as there has yet to be a significant body of academic work addressing LSBC v. TWU, it is an opportune time to analyze the Doré/Loyola framework as utilized in this case.

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Since the global financial crisis of 2008, policy makers have been working to develop laws that will increase the financial systems’ transparency and resiliency while maintaining fairness and efficiency. At the heart of the market infrastructure reform initiatives are measures aimed squarely at the regulation of derivatives.This paper aims to provide a high level review of some of the new Canadian legislation targeting derivatives. It examines the motivations for regulating the use of these sophisticated financial products as well as the complexity of legislating within a country whose securities laws have long been managed at the provincial level. The paper offers suggestions on the important features and direction of the law in this area.The analysis leads to several conclusions regarding the developing legislation. Central counterparty clearing and margin requirements are important regulatory initiatives to mitigate counterparty credit risk, being the key way in which derivatives contribute to systemic risk. Central clearing, however, cannot be relied upon as the primary guard against the spread of systemic risk by derivatives markets. This responsibility should remain in the hands of vigilant regulators. This leads to the key conclusion, being the need for effective management, at the national level, of the systemic risk created by derivatives markets. A robust national regulator would not only have access to real-time trade reporting data but would also monitor movements within defined sectors, like housing for example, to be alert to any risk accumulation within an overheated market. In addition, the analysis concludes that the use of investor sophistication as a regulatory trigger, as currently part of the proposed market conduct rules, is a valuable delimiter of differing levels of required disclosure. The research also concludes that investor sophistication could be a valuable tool to manage the nexus of sophisticated derivatives products entering the retail economy by potentially limiting their availability based on a combination of product complexity and investor sophistication.

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Canada’s constitutional framework consists of both written and unwritten sources. Within the subset of unwritten constitutional sources lies the body of constitutional conventions: rules of political morality that limit the scope of behaviour that would otherwise be legally permitted. Conventions are established by precedents and understood by political actors to be binding upon them. But the orthodox view holds that they are beyond the purview of the legal system and enforceable exclusively within the political realm. This thesis proposes measures for more effective regulation of political behaviour for compliance with constitutional conventions. These proposals are inspired by Prime Minister Stephen Harper’s announcement in 2014 that he would refrain from advising the Governor General to fill vacancies in the Senate of Canada. By convention, the Governor General only exercises the legal power to appoint Senators on the Prime Minister’s advice. Challenging the constitutionality of the Prime Minister’s conduct therefore implicated constitutional conventions. The author describes a judicial review application brought for this purpose as an illustrative example of the impracticality of litigation to enforce constitutional conventions. Drawing on that experience, he argues that Canadian jurisprudence ought to be renovated to accommodate and accept conventions as legally cognizable and enforceable rules. He further proposes the creation of an independent officer of Parliament accountable for monitoring political behaviour for compliance with constitutional conventions and drawing public attention to situations where conventional rules are breached.

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