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While Canadian debtors have never had an unconditional entitlement to a discharge in bankruptcy, Canadian courts have long recognised the important function that the discharge plays in the rehabilitation of the debtor. The Canadian discharge, originally based upon the English model, has differed from the American concept of fresh start in that Canada has traditionally relied on judicial discretion to impose conditions or limitations on the order of discharge in appropriate circumstances. Although the courts in Canada have had the ability to impose conditional discharges upon bankrupts, including requirements to pay money from future income, conditional discharges under the traditional regime are only one option and courts have had the discretion to grant an unconditional discharge where it has been merited. The often cited rationale for the release of debts is that it permits the debtor's ‘rehabilitation as a citizen, unfettered by past debts’. The discharge, it is argued, allows the debtor to once again become a productive member of the open market economy.
More recently, however, there has been a reconceptualisation of the role of the discharge in bankruptcy law and perhaps more broadly a new view of debtor rehabilitation has emerged. The rising number of consumer bankruptcies over the last decade led many to claim that something must be done to stem the rising tide. The assumption was that many debtors could really afford to pay more to their creditors and that the bankruptcy regime was too easy on debtors.
Consumer protection law in the age of globalisation poses new challenges for policy-makers. The legislative and regulatory framework developed to undergird consumer protection law in the 1960s and 1970s has come under pressure, ‘spurred’, as Michael Trebilcock suggests in his essay in this volume, ‘both by the changes in the nature of modern industrial economies and the evolution of economic theories’. Trebilcock argues that consumer protection law at the beginning of the new millennium ‘is a much messier and more complex affair’ than it was some thirty or forty years ago. The changes he describes include ‘rapidity of technological change, deregulation of hitherto monopolised industries, globalisation of markets’ and the ‘increasing sophistication in economic theories that evaluate market structure, conduct and performance’.
Governments can no longer develop domestic consumer protection law in isolation from international developments. Iain Ramsay argues herein that globalisation has ‘increased the international dimensions of access to justice and consumer protection as developments in communication technology facilitate the possibility of cross-border frauds’. Consumer law in the twenty-first century must become what he calls ‘applied comparative law’.
The growth of international consumer transactions and the emergence of a new conception of the role of the state have led to a proliferation of consumer protection models all designed with the idea of improving access to justice. As Ramsay demonstrates in his essay, consumer protection and access to justice have traditionally been linked.
Charles E. F. Rickett, Professor of Commercial Law University of Auckland; Professorial Fellow, University of Melbourne,
Thomas G. W. Telfer, Associate Professor of Law and Director of the Area of Concentration in Business Law University of Western Ontario
Consumer protection law in the age of globalisation poses new challenges for policy-makers. This book highlights the difficulties of framing regulatory responses to the problem of consumers' access to justice in the new international economy. The growth of international consumer transactions in the wake of technological change and the globalisation of markets suggests that governments can no longer develop consumer protection law in isolation from the international legal arena. Leading scholars consider the broader theme of access to justice from socio-legal, law and economics perspectives. Topics include standard form contracts, the legal challenges posed by mass infections (such as mad-cow disease and CJD), ombudsman schemes, class actions, alternative dispute resolution, consumer bankruptcy, conflict of laws, and cross-border transactions. This book demonstrates that advancing and achieving access to justice for consumers proves to be a challenging, and sometimes elusive, task.