Janis Sarra

Professor

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Graduate Student Supervision

Doctoral Student Supervision (Jan 2008 - May 2021)
Discretionary Decision-Making in Canada's Personal Bankruptcy System (2016)

Each year, tens of thousands of Canadians turn to the bankruptcy system for relief from unmanageable debt loads. Bankruptcy provides individuals with a significant benefit, the opportunity to be released from their debts. This release of past debts is called a discharge. The existence of this significant benefit raises the spectre of abuse. Policy makers and the public share an anxiety that unscrupulous individuals may improperly take advantage of the debt relief available in bankruptcy. Bankruptcy trustees, the professionals who administer bankruptcy files, are granted significant discretion to police abuse in the bankruptcy system. When a trustee believes that a debtor should not receive a discharge, the trustee can trigger a court hearing, by filing an opposition to the debtor’s discharge. At the resulting hearing, if the court agrees that the debtor is undeserving, it can deny the debtor’s discharge, delay it, or grant it subject to the debtor fulfilling conditions. This dissertation examines how trustees exercise their discretion when deciding whether or not to file an opposition. To understand how trustees exercise their discretion, this dissertation examines three different types of data. It starts with a synthesis of traditional sources of law including legislation and case law. This synthesis reveals that the traditional sources of law identify both pre-bankruptcy misconduct, and non-compliance during bankruptcy as grounds upon which a debtor’s discharge may be opposed, but do little to constrain or direct the trustees’ discretion. Next it analyzes empirical data, including quantitative data provided by the Office of the Superintendent of Bankruptcy, a branch of the federal government, on all the oppositions filed in 2012, and qualitative interviews undertaken with 40 bankruptcy trustees in 13 communities across Canada. This analysis reveals that oppositions are lodged in about 10% of files. Trustees rarely oppose on the basis of a debtor’s pre-bankruptcy misconduct, most oppositions result from a debtor’s non-compliance during bankruptcy. The dissertation explains how this pattern of oppositions may result from the economic and emotional constraints facing trustees.

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For-profit, non-profit, and hybrid: the global emergence of legally 'good' corporations and the Canadian experiment (2016)

There are mounting expectations for corporations to play a role in overcoming barriers to sustainability and socio-economic development. The explosion of social enterprises in the last decade has spawned a new generation of alternative corporations. Legislators across the world are crafting new laws to meet growing demands from social entrepreneurs seeking legal infrastructure to house their social businesses. “Hybrid” corporations blend for-profit and non-profit legal characteristics in their design, enabling and, at times, requiring businesses to pursue dual economic and social mandates. Some hybrids have been met with relative success in their home nations, others have not. The emergence of hybrid corporations challenges the foundational principles of corporate law and shareholder wealth maximization, as well as the nature of the non-profit organization. Corporate hybridity has received little scrutiny in scholarship to date as it is a relatively new institutional phenomenon. This dissertation situates hybrids within the broader context of neoclassical corporate legal theory. The underlying hypothesis is to test whether the creation of hybrids will contribute to the advancement of the social economy to a greater extent than if such entities did not exist. Part One provides historical background on the development and evolution of the shareholder primacy model of governance, both in theory and in practice, and whether there has been global convergence of this model. It explores some of the leading critiques and counter-hegemonic discourses to shareholder primacy and limitations to its reform, as well as the challenges facing the non-profit sector and resulting global emergence of hybrid legal structures. Part Two shifts the focus to Canada, a unique country to study corporate hybridity as some international hybrid forms have been adopted or are being considered. This critical juncture in Canadian corporate history serves as a live experiment on the utility of hybrids. Using qualitative empirical data, this dissertation positions a Canadian model of corporate governance within the international dialogue, and provides early lessons on whether hybrids can serve as catalysts in growing the social economy. Implementation strategies are provided for both domestic and international legislators who are interested in creating new laws to support burgeoning social enterprises.

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Basel Committee on Banking Supervision: A Post-Crisis Analysis of Governance and Legitmacy (2015)

The Basel Committee on Banking Supervision (BCBS) was established in 1974 as an informal group of central bankers and bank supervisors with the mandate to formulate supervisory standards and guidelines. Although the Committee does not have any formal supranational authority, it is the de facto global banking regulator and its recommendations have been widely implemented by member and non-member states. This thesis investigates the BCBS’s governance, operation, and policy outcomes to determine the extent to which it is and has been legitimate. The point of departure for my analysis is the literature on legitimacy in law, political science, and international relations. In particular, I draw upon Global Administrative Law theory (GAL) to examine the BCBS’s legitimacy against three principles: reasoned decision making, transparency, and accountability. My analysis is guided by five overarching questions: 1) Does the BCBS give reasons for its decisions? 2) Are the Committee’s governance and decision-making procedures transparent? 3) How and by what means does the BCBS consult the public in its policy-making process? 4) How and by whom is the Committee’s performance monitored? 5) Has the BCBS taken adequate measures to corrective measures to address the regulatory failures that contributed to the Global Financial Crisis (GFC)? I argue that the BCBS has gradually become a more legitimate institution but there still exists significant room for improvement. Inadequate disclosure on the BCBS’s deliberations, inadequacy and dilution of the post-crisis regulatory reforms, the underrepresentation of those constituencies without business interest or insufficient financial resources in BCBS consultations, and the absence of meaningful oversight of the BCBS’s policies, are among the areas I highlight for reform. I set out policy prescriptions to enhance the BCBS’s legitimacy, including the establishment of a new framework for transparency; creation of a proxy advocate to participate on behalf of underrepresented constituencies in the BCBS’s policy making; and the establishment of a new body to exercise active oversight of the BCBS’s operations.

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Principles, process, responsibility: exploring ethics as a meta-regulatory framework for evolving governance discourse (2012)

This thesis proposes a new paradigm for understanding, developing and maintaining standards of corporate governance and conduct based on ethics as a meta-regulatory framework for governance discourse. It explores the possibility that, within such a framework, the explicit recognition of fundamental norms of ethical conduct and decision making such as honesty, fairness, consideration of others, responsibility and trustworthiness would precede and inform policy decisions relating to the objectives, structure and regulatory approaches of particular governance systems and practical considerations of how to implement and operationalize governance practices. It suggests that, despite the complex legal, institutional, normative and social dimensions of corporate governance standards and practice, these ethical norms are already implicit, and more recently explicit, in the formal systems of laws, rules and standards that seek to regulate corporate conduct. Alongside these traditional governance regulatory mechanisms, informal and soft law governance standards − codes, guidelines, international and multi-partite commitments − have emerged as an influential source of explicitly ethical, values based beliefs and expectations of what constitutes responsible business. There is an opportunity to use these ethical norms as a common point of departure for future governance discourse that is broad enough to support multiple approaches to governance yet flexible enough to accommodate complexity, diversity and change. Such discourse has the potential to alleviate some of the inherent interpretive and practical challenges to reconciling culturally diverse and pluralistic regulatory approaches in the pursuit of effective global corporate governance standards.

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The diversity and evolution of competition : an ideal proposed for regulatory design (2008)

This dissertation presents a concept of diversity as an ideal of internationaleconomic regulation. The theme of diversity refers to the differentiation of individualcompetitive strategies. The first advantage of such differentiation is argued to be as ameans of stable and adaptive progress; increasing the number of possible techniques withwhich to meet as yet unforeseen challenges. As the first principle of diversity entails amethod for systemic responsiveness, the second principle gives content to this methodand states that social goals should serve as the incentives encouraging competitors towarddifferentiation. The advantage offered by the second principle is that social non-economicgoals may be advanced in the present, as individuals attempt new routes to personalreward via the satisfaction of collective objectives that previously may have had little orno economic value.As an ideal of diversity contemplates a method of systemic incentives, rather thanmandated outcomes, the location of innovation remains individual competitors.Accordingly, the ideal of diversity is justified and articulated from a basis in individualrights. Diversity is argued to be the optimal set of principles which individuals wouldselect if given the ability to design a new competitive system. In joining a method ofdifferentiation with the added social content of non-economic priority, diversity offers aunique blend of economic efficiency and equity; or of self-interest and concern for thewelfare of others. Diversity allows an individual to think of their own pursuit of gain, butalso and simultaneously further collective goals by selecting the priorities that shouldinfluence competitors toward differentiation. Other’s welfare becomes a route toindividual success.The project progresses through three broad conceptual stages. First, internationalproblems of market failure are considered in light of strategies and the economicimpulses toward self and system defeating cycles of competition. Second, a redefinitionof legal and economic progress is offered to meet conditions of unpredictability, and toarrive at an evolutionary method that encourages constantly competitive variation withwhich to meet society’s future challenges. Third, an evolutionary approach tointernational regulation is translated into a priority system of legal rights.

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Master's Student Supervision (2010 - 2020)
(2010)

No abstract available.

Protecting minority shareholders in private corporations: a comparative study from Canadian and Chinese perspectives (2010)

Minority shareholder protection is a perpetual subject in the legal research of corporate law. This thesis presents a comparative study of minority shareholder protection in private corporations from Canadian and Chinese perspectives. The objective is to explicitly compare and analyze the similarities and differences of the two legal systems, and make suggestions for improving corporate legislation of Canada and China in this area.The study first focuses on the common theoretical framework that informs the protections of both Canada and China and constitutes the prerequisite for the comparative study in this thesis. Then, the study articulates ten minority shareholder protections in China and twelve remedies in Canada to deepen the understanding of the two legal systems.Two comparative approaches are adopted in this thesis. Normative comparison focuses on four protections of same name in China and Canada. Functional comparison concentrates on other protections of different name that are applied to solve similar issues relating to minority shareholder protection in the two countries. By identifying the similarities and differences, the study compares and analyzes the protections from structural, substantive and legal cultural perspectives. In particular, much effort is made to look into the underlying reasons of these differences in the context of economic, legal and cultural perspectives.Although the protections of Canada and China have certain similarities, they differ significantly in both procedural and substantive respects. As compared to the rights in China, the remedies in Canada have their superiority in many significant aspects. In general, they offer broader protection in scope and provide more effective protection to minority shareholders. They are always accompanied by check and balance measures to arrive at the balanced protection. Canadian courts play much more important role in this area than Chinese courts.The study finally makes reassessment of the corporate laws of Canada and China with regard to minority shareholder protection, and puts forward some suggestions for their corporate statutes, that are aimed at improving and enhancing the balanced protection of minority shareholder. In the end, the study sets out the plan for future research in this life-long project.

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Transparency Rules for Derivatives, Mutual Funds and Bonds (2010)

This thesis examines disclosure requirements for mutual funds, bonds and retail derivatives in the Canadian, Swiss and German legal frameworks. By comparing the partially divergent Canadian and European approaches to regulating transparency in relation to these investment products, the paper aims at evaluating whether the present transparency requirements of the above jurisdictions provide investors with adequate information on the risks incurring from certain investments and enable them to compare different products and their characteristics with each other. In particular, the author argues that regulations establish adequate transparency only if they ensure that prospectuses disclose essential product characteristics in a timely manner and enable investors to clearly delimit different types of investment products from each other. The thesis demonstrates that the above goals can be best attained under a substantive approach to product regulation. However, slight modifications to the principle “same business, same risks, same rules” may be appropriate in relation to derivative structures whose characteristics require efficient procedures and simple disclosure documentation. Further, the thesis suggests that the implementation of transparency requirements is not always an adequate means to achieve an appropriate level of investor protection. Rather, transparency measures should be supported by the introduction of suitability assessments at the point of sale.

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Law
 

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