March 19, 2019
Professor receives $7,000 grant
The Foundation for Legal Research provides funds for legal research falling into three broad categories, namely:
- Research and writing where the emphasis is on the statement of existing rules of law, sometimes referred to as doctrinal research;
- Research with regard to the working of the legal system; and
- Research with regard to developments in fields peripheral to legal doctrine, such as criminology, psychology, psychiatry, sociology and economics and their relationship to rules of law.
The goal of the Foundation is to encourage legal writing that will be valuable to Canadian lawyers, notaries and judges in their day-to-day work in the law and to the administration of justice.
Jassmine's project is titled “Three Statutory Components but One Threshold: Why Does the Oppression Remedy Need Three Tests?”
The oppression remedy is available when courts are satisfied that the corporation or its directors acted in a way that is oppressive, unfairly prejudicial to, or that unfairly disregards the interests of, any security holder, creditor, director, or officer. The statutory components, however, are not formally defined in the statute or in case law, and in successful oppression remedy actions, courts rarely explain why the impugned conduct falls under the statutory test they designate for it, if one is designated. Without a definition or an explanation, there is no way to determine how the impugned conduct fits into one of the tests, which leaves us with a missing link: there is no connection between the statements in the case law about the statutory tests, if any, and the conclusions that the impugned conduct warrants an oppression remedy. An oppression remedy cannot be substantively and analytically justified if there is nothing in the cases to show us that the conclusions are true.
This project proposes a two-part solution. First, it will consider statutory reform. The statute currently has three tests, but it is only the threshold component, “unfair disregard” that must be met to qualify for an oppression remedy, resulting in overlapping and redundant statutory elements. Second, and this is particularly important if statutory reform is not forthcoming, it will articulate a more accurate statutory test to reflect what the courts are actually doing in order to provide guidance on how the jurisprudence can be more helpful.