1200 Property Notes - Prof Jason MacLean PDF

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Prof Jason MacLean...

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. Harrison v Carswell, [1976] 2 SCR 200 → https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/5960/index.do Sophie – picketer Peter – mall owner Provincial court – charges against picketer dismissed County court – convicted picketer Appellate – convictions against picketer set aside SCC - convictions against picketer held Once you’ve read the decision, please answer the following questions: (1) What is “property”? And: is your answer different than what you thought property was before reading this decision? Anything owned by a person. (2) What are the different “bundles of rights” that Laskin C.J. and Dickson J. (as he then was) would give to the property owner? Right of exclusion Right to revoke invitation Right to use the property Right to privacy Right to control (3) Why do you think these judges come to different conclusions in this case? • Different view of stare decidendi o Laskin – flexible and discretionary o Dixon – strict, formal • View of the courts role vis a vie o Laskin thinks the court has more leeway and responsibility to balance competing right, and to do so in a way to deal with social policy issues as they arise o Dixon Disagree, have to leave it to legislature for questions of social policy – changes in law, bringing law up todate, should be responsibility of legislature not courts • The judges backgrounds o Laskin – law professor, labour lawyer. Perspective of rights of workers to straight. Pro labour o Dixon – practiced law in Manitoba, corporate lawyer.

Petty trespass act → trespass upon the property of another, without the permission of the owner, is guilty of an offence Protester has a perceived right of not to be excluded & right to protest Property owner has a perceived right of being able to exclude & revoke invitation for anyone to come onto property Legal rules in a purposive way. Try to understand the purpose of a particular law. • Dixon was not interested in the reason for the rule he was trying to enforce. Just wanted to find the rule, then enforce it. • Laskin was more sensitive to the purpose of what it means to have a title of property and the right to exclude, and the competing exercising rights (right to exclude vs right to protest)

Introduction to the law of property 1 Chapter one, pp. 1-11 Property • Common language – things • Legal language – rights in or to things [enforceable claim to some use or benefit of something]

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Expectations & meaning of property always changing; interpretations are not the same for everyone, causing conflict and controversy Property ≠ private property [an exclusive individual right] o Public perception – “property for sale/rent” refers to building & land; however, property refers to legal title, enforceable exclusive right to or in the tangible thing (more obvious in a lease)

Property as a Right [not a thing] • Enforceable claim → Threat of force is to guarantee the right • Property is a political relation between persons: enforceable claim = some ‘body’ to enforce it o Some ‘body’ = the state o The state has a monopoly on just use of ‘violence’ → if damages are awarded, the state can physically seize assets if she doesn’t pay [nobody else can do that] • Modern private property – my right to exclude someone Common property – my right not be to excluded from something o Highways, public parks, city streets → personal [property ]right to use o Just because the state makes the right does not make it the state’s property right. state creates the rights, the individuals have the rights • Private property and common property are individual rights State property: state-created rights to property that they acquired from individuals or corporations. (eg, airwaves, railways, airlines in some countries). • Direct right to use or right not to be excluded is not automatic for individuals o Corporate private property: a corporate right to exclude others ▪ Exclusive property (compared to common property → non-exclusive) o State is a group of individuals representing the citizens → authorized to represent the citizens, but it’s not the citizens Property and persons • common, private and state property are rights of persons • common property – right of the natural person • private property – right of the natural or artificial person • state property – always the right of an artificial person Property as things misconception • understanding how/why property rights changed will give you a better understanding of how, in it is constantly shifting based on social/economic/political changes and pressures. o Find the underlying particular soc/eco/poli reason behind a rule. Find the purpose of the rule. Argue in favor/against whether that rule is still serving that particular rule. • began in late 1600s • prior to: property also referred a property [right] in their lives and liberties o land may have had a number of people who had rights to it; current owner may not have had the rights to dispose of land (sell/bequeath) at his will • the “thing” became the property when property sales were easier to accomplish, the state held more responsibility in guaranteeing the right of the individual to use and dispose of the thing. • Property beginning to be seen as a right again, as increasingly the purpose of property is expected revenue o Tied to the evolution of big business ▪ Market value of corporations is ability to produce revenue

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Rights tied to political necessities → licensing boards, engagement in certain work relies on legislation and judicial rulings, right to a pension/social security, corporate earnings are tied to government in what it receives in contracts and favorable legislation o Political is not just about institutions; also, in ideologies (eg, judge’s history and beliefs); rights and enforced by a political body (nation/state) Property is political → The role of state to enforce the order; interrelationship of different entities; legislatures covering and legislating (through statutes); political ideologies [beliefs]

Property as private property misconception • Common property advocated as the ideal • Property = private property → 1600’s • • Limits on private property: cannot use to create a nuisance, endanger lives, etc. • Right to dispose of (or alienate) as well as to use; right which is not conditional on the owner’s performance of any social function

P22-25 Notes? Cadillac Fairview Corp. Ltd. v. R.W.D.S.U. (1989) • Cadillac owned the Eaton’s Centre • Wanted to exclude union members from property • Union wanted to organize – doors outside of eatons and in eatons. • CA allowed union access • Cadillac F was acting on behalf of the employer o however, s.64 Labour Relations Act prevents anyone who is acting on behalf of the employer to participate/interfere with the actions of a union.  Cad F committed unfair labour practice • Cad F → Labour Relations Board error in law o LRB had no jurisdiction/authority; private property rights. CF is permitted to exclude people from property ▪ Trespass • Robins JA → prohibiting the interfering of union’s rights o Broad language → actual conduct/actions are not specified so that it protects the employees under this act. → S3 – every person is free to joint and participate o Access to union information – no restrictions to access → most obvious place is the workplace o Board weigh rights of private property to that of organizing employees ▪ Did not have to treat private prop rights as absolute → concerned with actions under s64 & balancing competing interests • Decision resulted in an amendment in act o s 11.1 (1992) → union members have a right to be present on property the public normally has access to, even if it’s private property, to persuading employees to join union or picket o repealed in 1995 by conservatives Trespass to Property Act (ON 1980) • included in the definition of trespasser any person “who does not leave the premises immediately after he is directed to do so by the occupier of the premises or a person authorized by the occupier” • found the act could be used (and was used) discriminatorily against youth and minorities o needed to add a requirement of cause → misconduct, and misconduct defined → not done • Committee for the Commonwealth of Canada v. Canada (1991) political propaganda and solicitation at airports → SCC allowed; charter protects the rights o L’Heureux-Dube J → prima facie right to expression on all gov property; limitations must be justified under the limitation provision of section 1 of the charter o Lamer CJC and McLachlin J → gov prop not like private (and this gov prop was more public), where people have a right to express opinions, s/he could only do so if that was compatible with the function of the place and did not interfere with the ordinary workings of the place.

1. Do you agree or disagree with the argument that barring a person from facilities otherwise open to the public for betting because they won too often is capricious [arbitrary], and could well amount to bad faith? Why or why not? And how will we decide among competing arguments? The property owner had a right to exclude, as per the Harrison case. Not arbitrary → has a legal right under Harrison. However, if the person made a bet, and then didn’t receive payment, the club could be breaching a contract. Bad faith/capricious argument → based on breaching contract; contractual relationship should be the primary one.

2. What is the hierarchical relationship between statutory law and the common law? (Hint: you should have learned this in Foundations.) Can a statute impliedly overrule an express common law rule? Does that question, as a matter of legal form, even make sense? (Hint: think about your answer to the question about the hierarchical relationship.) Stat law supersedes common. Stat is supposed to have more clarity and power; they do not “imply”, unless through a judicial interpretation. Statutes are expressed. 2a. Which approach to the dispute in Cadillac Fairview is the correct one? Why? What criteria are you using to arrive at an argument about which is correct? And how did you choose those criteria? The statute regarding unionizing supersedes the common law re private property. Balance competing rights. Absolute rights and absolute exclusions. The right to unionize/organize affects more people than the right to private property (preventing the organizing would be injuring the public interest), and the most common-sense place for employees to conduct union-type activity is at the workplace. 3. What lesson do you draw from the fact that the recommendations of the Task Force on the Law Concerning Trespass to Publicly Used Property as it Affects Youth and Minorities were not translated into law? Also, did it surprise you that the report quoted extensively from Chief Justice Laskin's dissent in Harrison v Carswell?

4. Which approach to the issue in Committee for the Commonwealth of Canada v Canada strikes you as the right one, and why?

2 Chapter 2

Novel claims for property rights → courts decided whether to award property rights in certain things to certain individuals. [p26] Should something be considered property – 2 approaches: • Essentialist approach: one or more essential attributes (eg, right to exclude) must be present. o Issue: right to exclude is a right given by law; does not arise out of the law • Nominalist approach: a right to something exists because the court says so. Principal justifications of property rights – how property rights are awarded: • That it reflects the rewards of labour [Lockean]→ the more you work the more you get • That it advances social utility [utilitarian]: happiness principle → greatest happiness for the greatest number o economic equality? • Law in Economics: That it is economically efficient: the market will move property • Human freedom & development theory: That it promotes human freedom and flourishing o Private property provides autonomy and less reliance on state interventions. o “the ability to control resources allows humans to exert their will over the external environment and in the process to demonstrate their individuality.” Indigenous theories – nobody owns property; community and people own the property.

International News Services v Associated Press 248 U.S. 215 [1918] Facts

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INS (defendant) passed off news stories created by AP (plaintiff/complainant) as their own AP’s members (newspapers or newspapers’ representatives) agree not to supply news for anyone else. Exclusivity contract INS & AP have contracts with newspapers (400, 900 respectively), some in the same cities. • Competitors; newspapers are competitors AP’s case • INS bribe AP newspaper employees • Inducing AP members to violate its bylaws; defendant obtains news before publication • News was copied from bulletin boards & AP newspapers, either verbatim or reworded preliminary injunction awarded on 1st 2 issues appeal sustained injunction & added injunction for 3rd in regards to copying from a newspaper (until commercial value for news has passed)

Issue

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Decision

Pitney J→ rule in favour of AP; grounds of unfair competition [anti-trust law in the US; competition law in CAN] • Unfair competition due to misappropriation of “quasi-property” → no property rights • Came up with the term “quasi-property” [quasi = ish], AP nor INS have full property right over the news; exclusionary right for a certain amount of time. Quasi-right as pertaining to 2 parties; not one party to the world. Holmes, J → concur • A Brandeis, J → dissent • Does not believe the justification that the rights stem from the labour

Reason

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Are newspaper copies a property right for which an individual can claim

News matter (substance of the information) is not copyrighted; however, the writing/form is subject to copyright. Principles of copywrite law: the law protects the form, it does not protect the content Requirement for the element of ‘creation’: -------------------------Unfair competition: market behaviour is regulated by judgements • Passing off: counterfeit – cannot pretend one item is that of another

1. Which theory (i.e., justification) of property rights described in the introduction to chapter two do you find most convincing? Why? What assumptions are necessary to justify your choice of justification? Equality is not favoured in utilitarianism. Create a dominant society of class structures. Nominalist approach too broad. Law in economics theory Human freedom & devel theory 2. After reading International News Services (INS) v Associated Press (AP), how would you categorize the rationales used by Justice Pitney (who delivers the reasons for the majority judgment of the Court) and Justice Brandeis (who dissents) in reference to the different justifications of property rights discussed in the introduction to the chapter? Try to be as concise as possible in expressing your categorization (i.e., try to express it in a single, clear sentence). Pitney → should have reflects the rewards of labour – talks about the cost Brandeis → utilitarian; advances social utility – once it becomes public, it belongs to the public

3. How does Justice Brandeis’s argument in favour of a legislative, as opposed to a judicial, resolution of the problem in INS v AP compare to Justice Dickson’s view of the appropriate roles of the legislature and the judiciary in Harrison v Carswell? Are their rationales in favour of, and in deference to, a legislative solution to novel property law claims the same, or different? Which rationale do you find more convincing, and why? “…there is no rule of law requiring acknowledgment to be made where uncopyrighted matter is reproduced.” Brandeis – utilitarian (public has a right to the news); as an institution, the SCC does not have the institutional competence to figure out what the law should be in subject to competition. • The courts are limited to the dispute between the parties, and the evidence put forth to benefit each party – not necessarily the entire system for deciding the best rule for society as a whole. Dixon [corporate lawyer]: legislatures are accountable to the citizens; have to leave it to legislature for questions of social policy – changes in law, bringing law up to date, should be responsibility of legislature not courts

P 16 (1) In relation to question 1) in the NOTES beginning on page 43 of chapter two, in answering the specific question “[i]s this the right conclusion based on INS v. AP?” I would like you to first match the answer options “yes” and “no” with the most appropriate corresponding method of reading and interpreting a potential precedent, namely “narrowly” versus “broadly.” Then explain in one sentence your reasoning. Yes, broadly follow the precedent. The Pirates have the right to determine who broadcasts their games as they do own the stadium and they are producing the event (whereas the news is not owned by anyone). Not the exact same thing. There is copyright over the games. Similarity → unfair competition; both tried to establish a right to the news, and they both succeed. Precedent → same material facts, similar legal issues. You want 3 things to line up to have a convincing argument for why this case is a precedent. • As close as possible an alignment of all the material facts [Mutatis mutandis → a & b are the same in every way that matters; the differences do not matter] • The law to line up → the reasoning in the precedent case to recognize a property right as well. • The results (2) In respect of note 2) and question 3) of the NOTES a) what – if anything – distinguishes the two Boston Marathon cases, and Copywrite; Misappropriate Monetary value in the selling of merchandise vs. The “added value” of broadcasting the live event + public value created by the race (value to the community) You don’t have to pay to see the marathon; no right to exclude – public event In one case you have a purely commercial substance whereas the marathon itself has a significant public dimension (community and runners around the world). It’s not an event in the same way professional sports are. (b) what – if anything – distinguishes the latter of the two Boston Marathon cases from the Pittsburgh Pirates case discussed above. Public place → pirates own their property (exclusive property right), people have to pay to see it & have right to exclude. (3) Do you think the dispute described in question 4) of the NOTES appearing on page 44 of chapter two would be decided differently today? Why, or why not? In formulating your one-sentence legal opinion, please have regard to the NBA’s official website, ideally during the evening when games are in progress:

https://ca.nba.com/. Assume that all of the facts remain the same, with the possible exception of the NBA’s business model. Today it would not matter; everyone has a cell phone and social media. The NBA’s business model has changed; website + proprietary app. Material facts are not the same – they are taking a news event and publishing it The 5 elements are not present for “hot news” claim Legal test - elements For a “hot news” claim to succeed in a misappropriation suit five elements must be present: (i) the plaintiff must incur some cost in generating the information; (ii) the value of the information must be very ‘time-sensitive’; (iii) the defendant must be ‘free-riding’; (iv) the defendant must use the information in direct competition with the plaintiff; and (v) there must be a substantial threat to the financial viability of the plaintiff’s production of the information. Interlocutory Elements → applicable test for granting an interlocutory injunction on the following three criteria: (1) the existence of a serious issue to be tried (2) the possibility of irreparable harm and (3) the balance of inconvenience 46-60 Matrimonial Property 1970s irrespective of who actually owns the property → assumption that the property acquired during the marriage is shared equally in the partnership, regardless of “contribution”. Administrative action → legislative (admin law) in action. Admin law c...