THE SUPREME COURT, COMMERCE AND THE CONSUMER: MAKING THE MOST OF LIMITED OPPORTUNITIES

Abstract

In this essay, Professor Cuming examines three related areas of commercial law that have been influenced by decisions of the Supreme Court of Canada: secured financing law, Crown priorities and bankruptcy law. Major public policy choices made by the Court when interpreting provincial and federal legislation are noted. He concludes that the Court has had a very positive effect on the development of secured financing law. In his opinion, the Court's practice of "reading down" statutory provisions designed to subordinate prior in rein third party interests to claims of the Crown should cause legislators to approach tax collection in less detrimental ways. According to the author the Court's record in dealing with important bankruptcy issues is mixed. He applauds the Court's approach to the protection of non-corporate bankrupts through rejection of the concept of self settlement. However, when it comes to the Court's application of section 136 of the Bankruptcy and Insolvency Act, Professor Cuming is less supportive. He questions why the very constructive approach employed by the Court when addressing the interface between the federal legislation and provincial personal property security laws was not applied where secured creditors of bankrupt debtors employ section 136 to circumvent provincial legislation designed to protect unpaid former employees of bankrupt organizations or crucial provincial revenue sources.