When thinking about whether to eliminate section 30 of the Business Corporations Act, I find myself considering the philosophical underpinnings of corporate personhood. Firstly, one of the reasons corporate personhood came to be was so that the corporation could live beyond the person (or persons) who control it, making corporations intergenerational, a more stable form of business. A second reason, as highlighted in Salomon, is the idea of limited liability whereby a company is a distinct entity from its shareholders. This separate identity gives rise to a “veil” protecting them from liability, and encourages investment by shareholders to raise the necessary capital to conduct business. However, through the recognition of an essentially immortal, (in many cases) very powerful “person”, have we become Dr. Frankenstein in the creation of amoral, everlasting “psychopaths” driven by the goal of profit as discussed by Joel Bakan in The Corporation?
Perhaps this explains the cautionary approach taken by courts in Canada in extending Charter rights fully to corporations. On the one hand, in Irwin Toy, the court held the Charter’s s. 7 protection only extended to a “singularly human level” and did not apply to corporations since they cannot be deprived in the same way of “life, liberty or security of the person” as human beings can. However, later that same year in Slaight, the court held that the Charter’s s. 2(b) protection of freedom of expression was extended to corporations. Two different Charter rights, but to me, the freedom of expression involves some pretty “human” attributes – can corporations really have a ‘belief’? Surely those who are controlling corporations do. So, I guess ultimately, I am finding it difficult deciding whether enumerating certain rights is a more appropriate solution, or if it is better to leave it up to the courts to interpret what rights a corporation is entitled to.
Great post Alexandra, I also struggle with this idea. I think whether we enumerate certain rights to corporations or leave it up to the courts, we’re in a difficult position. With leaving it to the courts, there is a lower degree of certainty as to what rights a corporation will have and how those rights will be interpreted. This makes it difficult for them to know how to act and what they can or can’t do going forward. Furthermore, it makes it difficult for their legal counsel to know how to advise them. I think that the rights applicable to corporations should have been enumerated from the beginning had they intended to to extend to corporations. Obviously hindsight is 20/20. However I find the cases that give or don’t give rights under the Charter to be a bit smoke and mirrors, they seem to be using interpretation methods and principled approaches but in the end it seems a little bit like decisions are made and then the reasoning is used to find how that decision can be justified.