Bruce MacDougall

Racial bias does not have to be explicit to be felt. In the context of the criminal justice system, even implicit bias can have huge impacts on complainants and accused. While judicial impartiality and neutrality are hallowed principles in our judicial system, there is clear evidence of racial bias in judicial decision-making. The prevalence of racial bias throughout the criminal justice system creates the need for explicit considerations of race for the system to produce substantive equality, and for the legal system to apply to and protect all people equally. Sexual assault is an area of law where complainants likely face implicit racial bias. Further, it is possible that there is less perceived societal harm to the sexual assault of minorities. If racial complainants are less likely to be believed, or are less sympathetic complainants, then the criminal justice system will fail to adequately deter crimes against minorities.This thesis asserts that counsel should be advancing the topic of race in the context of sexual assault due to its racialized nature and the pressing need to find a way to reduce its prevalence as the current approach has failed to do over the last ten years or more. If the topic of race is raised, it allows the judge to attempt to counteract any of his potential implicit biases, as well as factor race into his considerations regarding deterrence. The current erasure of race in sentencing impacts both complainants and accused, and may limit the criminal justice systems ability to effectively deter crime. Ultimately, the thesis suggests judges record the race of the accused and complainant in their sentencing decisions for sexual assault. This data on the racial demographics of sexual assault convictions will allow researchers to measure judicial racial bias in sentencing, as to identify whether there is explicit, implicit and/or structure inequality in the criminal justice system such that sexual assaults involving minority complainants are less likely to result in convictions.

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This thesis examines, in comparative terms, Canadian and Nigerian laws relating to the concept of corporate majority rule and minority protection from majority opportunism and oppression in private corporations. The key shareholder remedies of derivative actions and oppression are comparatively discussed, with highlights of the similaritiesand differences in both remedies under Canadian and Nigerian laws.From theoretical perspectives, this thesis examines the theory that considers the corporation a nexus for a set of contracting relationships among parties. It also considers the proprietary conceptualisation of the corporation. Another theory sees the corporation as an agency relationship between two individuals with differing goals and interests. Lastly, the legal personality theory of the corporation, which considers the corporation a legal person capable of acquiring rights and assuming obligations, is discussed. Understanding of these theories gives better insights into reasons whyconflicts arise amongst corporate stakeholders.A comparative appraisal of the key minority shareholder remedies of oppression and derivative actions under Canadian and Nigerian corporate laws reveals certain areas of convergence and other areas of uniqueness. This work demonstrates that the shareholder remedies available in the two jurisdictions are very similar in nature and, in most cases, known by the same names. However, there are some differences bordering on, among others, proper parties to commence shareholder litigations, length of pre-action notice, and the codification of common law rules into the corporate statute. For instance, while Nigeria statutorily incorporates the common law rule in Foss v. Harbottle and its exceptions into its corporate law, Canada only utilises the rule for historical and analytical purposes.This thesis advocates a reconsideration of the minority shareholder remedy of derivative actions with regard to close corporations, and the absence of a principled test fordetermination of liability under the oppression remedy. The attitude of the courts has always been to treat each case according to its peculiar facts. It is further suggestedthat the courts could, in the exercise of their discretion, liberally interpret the provisions of current corporate statutes to include discretionary, non-traditional corporate stakeholders, such as the environment, as beneficiaries of the dynamic remedy of oppression.

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Credit bidding is a US construct that enables secured creditors to use their secured claims, instead of having to raise additional capital, to bid on their collateral at an asset sale. The US legislature amended the bankruptcy statutes to include credit bidding specifically to prevent the undervaluation of collateral. Recent US case law has re-­evaluated when secured creditors are entitled to credit bid and when debtors might be able to deny this right through the use of a loophole subsection. This subsection allows a debtor to deny secured creditors the right to credit bid if the debtor can satisfy their claims by providing an “indubitable equivalent.” While the US Supreme Court ultimately determined that the indubitable equivalent subsection cannot be used to deny secured creditors the right to credit bid at an asset sale, the case law adeptly highlights the merits of credit bidding while demonstrating the dangers of specific legislation.Although Canada does not have legislation regarding credit bidding, it has nonetheless been incorporated into Canadian insolvency proceedings through cross-­border cases. This thesis discusses both the benefits and issues involved with credit bidding in a US and Canadian context, reviewing relevant case law and legislation in both jurisdictions. It also discusses the current status of credit bidding in Canada, which, without specific legislation to state otherwise, current case law has found to be permissible but not a right. Consequently, this thesis proposes that credit bidding should be added to Canadian insolvency legislation.

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This thesis examines, from an economic perspective, the problem of determining when and whether gain-based damages are an appropriate response to a breach of contract. Starting from the premise that such a remedy is needed to protect the integrity of contract’s institutional function, consideration is then given to the nature of that function and how gain-based damages may support it. The conclusion reached is that contract’s legal function is essentially economic and that gain-based damages may be of aid to courts in remedying inefficient outcomes arising from breach of contract, preventing economically inefficient breaches. The nature of a gain-based remedy is then explored, and enquiry is made into the potential means for developing such a remedy. After considering the potential to adapt a number of existing remedies, the thesis concludes that only an entirely novel development will fulfil the function of the remedy required, as adapting existing remedies will only create difficulties in other areas of law.

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