Position Paper

Submission Format:
Please submit all 3 Legal Position Papers together as a single PDF document.
The Legal Position Papers are to be submitted online via Blackboard under Course
Content- Final Assessment.
If you are submitting 3 extra Legal Position Papers under Dans Opportunity for
Exam Redemption (ie., 6 in total), please put all 6 papers together in a single PDF document. In that situation, I will grade the first three papers in your submission as the Final Assessment and the latter three papers as your submission for Exam Redemption.
General Instructions:
You are required to write three (3) short position papers, choosing your topics from the seven issues outlined below as stated in The Questions. You get to choose which of The Questions you will write on based on your individual interests. The only limitation is that you must write on AT LEAST ONE of the issues from topics #4, #5 and #6 (ie., you cannot submit your final assessment writing only on topics #1, #2 and #3).
Your answers may be as long or as short as you feel is necessary to properly and fully answer the question that are posed, just like in the real world.
Note that I am not grading the responses based on a longer-is-better grading scheme. Quite the opposite, in fact. Writing a bunch of run-on and disjointed thoughts articulating every idea that you can think of relevant to the topic will result in deductions. Of course, being too brief and not giving proper details to your answers will also result in deductions. You need to find that happy medium based on your assessment of what is required to properly establish and defend your position. Be as brief as you feel is appropriate while properly analyzing the relevant issue and developing your arguments, but not so brief as to miss out on important nuances in your answer. Hint: From my grading of these assignments in the previous term, I have found that most of the properly argued position papers were 2 to 3 pages in length for each topic.
I fully realize that it is very painful for you, as students, when an instructor doesnt give you a page limit or stricter length guidance for writing your arguments. However, in the real world, you will be asked to analyze topics and you will individually have to determine how long your analysis should be to properly achieve the objectives, without an instructor giving you artificial
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space limits. …So this is a great opportunity to build an important business skill and practice making those decisions for yourself.
Also like in the real world, the clarity, articulation, presentation and organization of your thoughts will matter in the grading of this Final Assessment. How you express yourself and convey your answers is important. Should you use headings and subheadings to frame your arguments? Can point form or lists convey the information properly? These are questions for you to decide.
There are six distinct legal issues that you can choose from in this Final Assessment. Each of these legal issues relates to an important legal issue we have discussed during this course during the weekly live Q&A sessions. Each issue contains a brief background summary and then outlines The Question, which his framed as a debate topic resolution.
Your task is to write a brief position paper as if you were submitting written submissions for a debate on the topic either supporting or opposing The Question, and providing as compelling an argument as possible to support the position that you adopt. It is critical to understand that there is no right or wrong answer for any of the topics below. You can absolutely score full marks on any one of the seven issues by arguing for either position, for or against. Rather, your score will be determined by how persuasive you are in your analysis, how well you demonstrate your understanding of the particular issues and how clearly your arguments are presented.
In your position papers, citations to external sources are welcome, but are not required in order to achieve maximum scores.
Please note that your work in this Final Assessment must be original work in accordance with all MacEwan originality policies for written submissions. While you may discuss your thoughts with classmates, your work product must be exclusively your own. Be advised that all submissions will be run through the MacEwan SafeAssign anti-plagiarism tool for originality assurance purposes.
The fact that I have given you a lot of time during the term to complete this Final Assessment does not indicate that I expect you to take weeks to write your answer. You should be able to complete this entire Final Assessment in less than two days of solid effort, if you remain focused on the task at hand. Of course, you can also write your analysis of each topic immediately after we discuss the underlying issues during our class discussions and get ahead of the game. ….Good luck!
Specific Instructions on Dans Bonus Opportunity for Exam Redemption
Grace abounds during the time of COVID. If you are unhappy with one of your four exam grades during the term, I am giving you the opportunity to secure redemption by submitting an ADDITIONAL three Legal Position Papers when you submit this Final Assessment in Blackboard.
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If you submit 6 Legal Position Papers, I will understand that the first 3 Legal Position Papers are being submitted as the Final Assessment. The last 3 Legal Position Papers in your submission will be graded as a separate submission. If your assigned grade on the last 3 Legal Position Papers IS HIGHER than the lowest grade that you earned on one of the 4 multiple-choice exams in this course, I will replace the lowest exam score with the grade for the last 3 Legal Position Papers.
In order to avail yourself of this offer, you must have written each of the 4 multiple choice exams. Failure to write an exam will make you ineligible for this offer.
As such, I am giving you the chance to redeem yourself if you bomb one of the 4 multiple choice exams, but in order to do so, you have to put in significant extra effort by writing 3 extra Legal Positions Papers. Sound fair? I believe so.
Issue 1: The Role of the Supreme Court in Canadian Law and Society
Background: The Supreme Court of Canada has played an increasingly important role in shaping Canadian law and society since the implementation of the Charter in 1982. Many have argued that the Supreme Court, as an appointed body that is not accountable to the public, has overstepped its appropriate boundaries and improperly usurped the elected role of the parliament and provincial legislatures as the prime sources of public policy. In particular, people point to the self-determined power of reading into the constitution as a concerning development for unelected judges. Others, meanwhile, have argued that the Supreme Court is fully justified in the interventionist policies that it has adopted, and serves a critical role in protecting minorities and disenfranchised individuals from tyranny of the majority, and in serving as a critical check on the power of the government in a liberal democracy.
The Question: BE IT RESOLVED that the Supreme Court of Canada has gone too far in intervening in Canadian law and public policy since the adoption of the Charter in 1982, and the SCC should, in the future, exhibit greater deference to the will of the Canadian people as expressed through the Canadian Parliament and the provincial legislatures.
Issue 2: Modernization of the Evidentiary Standard and Rules in Canadian Sexual Assault Law
Background: The #Me Too movement has had a profound impact on Canadian society and the law of sexual assault over the past two years. Interest groups have invested significant money buying billboards simply delivering the message I Believe You in direct reference to the victims of sexual assault. The criminal law standard of proof beyond a reasonable doubt has historically made it very difficult to attain a conviction for sexual assault without third party or physical corroborating evidence. Read the article from the Globe & Mail Supreme Court sends signal to appellate courts on sexual assault rulings from Dec 14/20, which is posted in Blackboard under Course Content- Other Materials, which makes it clear that the Supreme Court of Canada is intentionally changing Canadian sexual assault law to make it more likely that sexual assault charges will result in convictions.
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The Question: BE IT RESOLVED that the historical interpretation in Canadian law of what is required to establish proof beyond a reasonable doubt was biased against complainants and that the pro-complainant modifications being implemented by the Supreme Court of Canada represent a necessary and positive change in modern society in light of the #Me Too movement.
Issue 3: Tort Reform and Adoption of No-Fault Insurance in Alberta
Background: Several major provinces have adopted no-fault insurance schemes for automobile accidents and resulting injuries. The proponents of no-fault schemes believe that is more fair and equitable to offer compensation based on the nature of injuries rather than on the fault of parties. The proponents also argue that no-fault insurance saves significant legal costs. Opponents of no- fault insurance argue that no-fault insurance programs prevent injured parties from receiving the compensation to which they are morally entitled and that is reduces the incentive for drivers to exhibit proper care and attention while operating on the roads.
The Question: BE IT RESOLVED that Alberta should adopt a no-fault insurance program for motor vehicle accidents and injuries based on the existing precedents in other Canadian provinces.
Issue 4: Extension of Liability to Taverns/Servers for Over-Serving Patrons
Background: Canadian tort law has recently evolved to the point where it is placing an affirmative legal obligation on licensed restaurants, taverns and even individual servers to make sure that its patrons dont drink and drive. This has been extended now to ensuring that drunk patrons get safely into cabs and dont pass out and freeze outside in the cold Alberta winters. Failure to comply with this standard essentially is making businesses and servers liable for the bad decisions of others. Even the drunk people have been receiving awards despite the fact that they chose to get drunk. Proponents of this legal development argue that this is the only way to make sure that drunk people dont continue to kill innocent bystanders through drunk driving. Opponents of this legal development argue that this is unfairly placing too much onus and legal risk on small businesses, and eliminating the obligation on the drinkers themselves to exercise proper judgment.
The Question: BE IT RESOLVED that law in Alberta be statutorily reformed to limit the trend of imposing liability for restaurants, taverns and individual servers for all bad decisions made by their drunk patrons, and limit liability to situations where the businesses and servers are guilty of gross negligence in clearly over-serving patrons that they know are in imminent danger to themselves or to others.
Issue 5: The Organizing Principle of Good Faith in Contracts
Background: The unanimous decision of the Supreme Court of Canada in Bhasin v. Hrynew, (2014) SCC 71 identified good faith as an “organizing principle” of the law of contract and created a new duty of honest contractual performance into Canadian contract law. The law before Bhasin, for most Canadian contracts, was that there was no general duty to perform contracts in good faith (except in narrow cases, for example, in contracts of insurance). As such,
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Bhasin represented an important change in how parties are expected by Canadian courts to perform their contractual duties. As such, this is clearly an example of a situation where the SCC has abandoned legal precedent in favour of creating new principles of law they believed were appropriate. This decision has been criticized by some legal commentators for bringing too much uncertainty into contract analysis and for leaving a lack of clarity as to what the organizing principle of good faith entails.
The Supreme Court attempted to clarify its position recently in CM Callow Inc. v Zollinger (2020) SCC 45, but that case was decided by a 5-3 split of the court and has been criticized for creating further uncertainty on the scope of the duty of the organizing principle in good faith.
The Question: BE IT RESOLVED that the Supreme Court of Canadas decision in Bhasin v. Hrynew was correctly decided and resulted in an improvement to the previous common law position that refused to recognize any implied duty of good faith in most contracts.
Issue: Shareholder Primacy vs. Stakeholder Primacy
Background: The Supreme Court of Canada decisions in the two seminal cases of Peoples Department Stores Inc. (Trustee) v. Wise (2004) SCC 461 and BCE Inc. vs. 1976 Debentureholders (2008) SCC 69 collectively turned the foundations of corporate law in Canada on its head. Essentially, these decisions departed from 70 years of legal precedence in Canada (during which shareholder primacy was the dominant legal theory in terms of the question to whom is the fiduciary duty owed in a corporation) and clearly established stakeholder primacy as the prevailing law. This decision has been subject to significant legal criticism based on the allegation that they create significant uncertainty in assessing whether officers and directors have discharged their fiduciary obligations when there are so many potential competing interests to consider under stakeholder theory.

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